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Home / Washington Business - Current Issue / Legal Matters: Peel back worker privacy, the issue is really union organizing |
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Legal Matters: Peel back worker privacy, the issue is really union organizing |
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Written On: January/February 2008 |
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Written By: by Kris Tefft, AWB General Counsel |
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Employers, take note: One of the most significant and contentious employment law issues in the just-underway legislative session promises to be organized labor's push for a proposal it calls the Worker Privacy Act.
The bill is part of a national legislative campaign by the AFL-CIO to enact laws that sweep away long-standing workplace rights the union finds inconvenient in the midst of an organizing campaign.
At the federal level, it's taking away the worker's right to a secret-ballot election through the Orwellian "Employee Free Choice Act" now making its way through Congress. In the states — at least in those few who have introduced it — it's some variant of the Worker Privacy Act. The Washington State Labor Council, the AFL-CIO's statewide affiliate, has marked this as its top priority in the 2008 session.
Unions gain upper hand
The bill's primary purpose is to prevent employers from effectively communicating their views on union matters to their employees. But you have to read the bill rather closely to figure this out, because the heart of the bill, like the stem of an onion, is hidden.
The bill prohibits employers from requiring employees to attend a meeting or listen to or respond to or participate in any communication when a purpose of the requirement is to ensure that employees receive communications relating to political or religious matters or to influence the employee's beliefs, opinions, or actions about political or religious matters.
Peel back "religious matters" for a moment. Not only is a required employer-employee communication about religion rare (except, perhaps, in the rectory), but an employee's religious freedom is already amply protected under federal and state civil rights statutes.
Peel back "political matters." These are defined as "matters directly related to candidates, elected officials, ballot propositions, legislation, election campaigns, political parties, and political, social, community, and labor or other mutual aid organizations."
Broad implications
Putting aside the juxtaposition of unions with candidates, elected officials, political parties and the like, this provision is astonishingly broad. Keeping in mind that the bill's prohibition is against the employee having to "attend a meeting, listen to, respond to or participate in" communications about these kinds of things, one starts to wonder what will happen to the all-staff Christmas party? Mailbox flyers about a local charity’s holiday food drive? A tour of the worksite by a legislator or the mayor?
These prohibitions are enforced by a further prohibition against taking an "adverse employment action" (e.g., discharge, discipline, etc.) against an employee who refuses to attend a meeting or challenges or opposes what the employee reasonably believes would violate the law.
Bill spawns new lawsuits
For enforcement, the bill creates a new lawsuit against employers for damages including injunctive relief, reinstatement or rehire of the employee, back pay, consequential damages, and a punitive damage award of 100 percent of any back pay as well as the employee's attorney's fees and court costs. Note the fundamental distortion of the employment relationship. The bill empowers the employee to decide, based on his reasonable belief, which of an employer’s valid job directives (e.g., which required meetings) are appropriate and which may be disregarded — without any consequence and insulated from discipline.
Peel back the last layer and you get to labor organizing. That is the point of the bill, to prohibit what is very traditionally and legitimately the employer's prerogative in the midst of a union campaign to assemble employees in a meeting in which the employer conveys his views about the union. Federal labor law has allowed and protected this right for decades. The same National Labor Relations Act (NLRA) also prohibits the employer from making any promises or engaging in any coercion of employees or retaliation for the choice to unionize.
Gags employers
Even though the historic view of a campaign has been to provide the worker with competing views to facilitate an informed choice, the Worker Privacy Act intends to gag the employer, tying one hand behind his back while letting the union fight freestyle. The proposal infringes on employers' speech rights and gives unions an upper hand that Congress never intended when it crafted the NLRA.
That is why the bill's legal validity is dubious, at best. The NLRA is a pre-emptive federal statute that prohibits states from regulating activity it even arguably covers. As the NLRA has been widely read to protect precisely the kind of employer speech the Worker Privacy Act would prohibit, federal law would preempt the bill.
The bill's doubtful legality won’t mute the call for its enactment. But legislators should pause: if Washington becomes the first state in the country to pass this aggressively anti-employer bill — a distinction it would certainly garner — what message is the state sending to its business community?
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