By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This article contains content adapted from lesson material written for my APUS classes. This article is the first in a five-part series on the evolution of federal laws to protect employee rights in the workplace.
In a separate series, we discussed the legal protections against employment discrimination in the hiring, firing and management of employees in the workplace. In addition to those protections, the federal government has also created and defended an assortment of other protections for employees over the last century or so.
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These protections include rights to reasonable wages, work schedules, benefits and leave, as well as the freedom to organize if such efforts are needed. Lawmakers recognized the dangers inherent in an unregulated or under-regulated work environment, so they took steps to ensure that workers would be protected.
Adam Smith, often called the “father of capitalism,” authored a seminal paper in the 18th century on the benefits of capitalism. Although the years since then have brought with them some deviation from Smith’s ideas, his work is largely responsible for the modern laissez-faire capitalist economy that exists in the United States today.
Smith’s underlying philosophy essentially proposed that the economy operates at optimal levels when the people are free to pursue their own individual economic self-interests. He posited that if people were free to make business decisions that maximized their own productivity and profitability, the economy would benefit from such efforts through increased competition and continual product specialization.
Smith’s ideas have been largely successful. Capitalism today is a major driving force of economic prosperity in many nations in addition to the U.S. However, if Smith was errant, it was because he failed to account for the fact that human selfishness — to the extent that we can be motivated to ignore the interests of others — would lead to abuse by those with power over those without power.
With that in mind, the American 20th century was to a large extent a slow, arduous evolution of worker rights and liberties. It was an evolution aimed at providing a governmental structure that balances the interests of private sector capitalism with the welfare of the society which it employs. Employers must be aware of all of these statutory provisions to avoid breaking the law and inviting liability in their workplaces.
National Labor Relations Act Secured the Rights of Employees in the Workplace
The National Labor Relations Act (NLRA) was passed in 1935. It was the first major step in securing the rights of workers by giving them a legally protected voice to negotiate the terms of their own working circumstances. Prior to the NLRA, it was perfectly legal for employers to use coercion, threats and adverse employment actions to quash any attempts at employees organizing for the purposes of collective bargaining.
The NLRA created the National Labor Relations Board (NLRB), a government oversight agency responsible for protecting workers’ rights to collective bargaining. Under the NLRA, employees have the right to create unions, join existing unions, and negotiate with employers concerning work circumstances (e.g., pay, schedules, and other work-related issues). They may even strike or picket if the response of the employer is not to their satisfaction.
Under the NLRA, it is illegal for employers to prohibit union activities, to use rewards or punishments in order to influence union support, and even to question an employee about his or her views concerning a union.
Unions Are Not Completely Free to Operate without Workplace Restrictions
However, unions are not completely free to operate without restrictions, either. Under the NLRA, unions may not discriminate against employees based on their union views. Unions cannot require union support, and they cannot threaten any adverse action against employees for failure to do the same.
It is important to remember that, under the NLRA, union membership may never be required. Unions are free to solicit the membership of new employees; employees are free to join if they wish, but there can be no penalty for failure to join. However, there is one caveat worth elucidating: the “Right to Work” law debate.
Absent state legislation, unions are technically free to create agreements with employers to collect union dues from each employee (through payroll deductions), regardless of employee union membership. In these cases, employees may be lawfully required to pay dues, but they are not required to join the union or participate in its activities in any way. These are generally known as “agency shops.”
However, Right to Work laws essentially prohibit agency shops. In states with Right to Work laws, unions are still free to operate, but they may not create employer agreements for mandatory action or payment from employees. These kinds of union environments are usually called “open shops.” Roughly half of the states currently have “Right to Work” laws in place.
In a separate article on Right to Work laws, I explained how they were a scheme designed by large corporations – and lawmakers who were loyal to them – to crush unions. I discussed how they have effectively drained union strength in the United States from its peak of roughly 35 percent of the American workforce in the mid-1950s to just 11 percent in 2018.
Unions in the workplace are without a doubt a challenge for employers because the collective bargaining process generally makes operations – labor and production – more complicated and more expensive. However, American workers who stand to benefit from union representation should think carefully before supporting Right to Work laws in their communities.
In the next part of this series, we will look at the massive contributions of the Fair Labor Standards Act to American worker rights and protections.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.