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2000 ANNUAL REPORT

The National Workrights Institute was founded in January 2000 by the former staff of the American Civil Liberties Union's National Taskforce on Civil Liberties in the Workplace. The Institute's creation grew from the belief that the workplace is a critical front in the fight for human rights and the belief that this effort required the creation of a new organization dedicated to human rights in the workplace. The Institute's mission is be the one human rights organization which commits its entire effort to workplace issues.

The Institute's goal is to improve the legal protection of human rights in the workplace. We believe that the core problem is not that workplace rights laws are inadequately enforced, but that these laws, even on paper, are grossly inadequate.

The Institute's strategy is to select a small number of issues where there is both the potential of creating substantial long range improvement in workplace human rights and a current opportunity for constructive engagement.

The four issues on which the Institute focused during its first year are:

  1. Privacy
  2. Private Justice
  3. Right to Organize
  4. Genetic Discrimination

Our efforts on each of these issues is described in the body of this report.

In addition, we continued our more modest efforts on workplace drug testing and began evaluating future issues, such as human rights in the global economy. These are also briefly described below.

PRIVACY

Among the greatest issues in workplace human rights today is privacy. For many years, Americans enjoyed a substantial degree of privacy at work. Employers may have wondered what their employees were doing when the supervisor's attention was turned elsewhere, but few employers tapped employees' telephones or searched their desks at night to find out.

The workplace today has changed almost beyond recognition. Communication is now predominantly electronic and is generally monitored. The vast majority of employers today (78%) already conduct electronic surveillance of their employees, and the number is growing rapidly. Employers routinely monitor employees' telephone calls, read their e-mail, monitor the web sites they visit, and read documents stored in their computers. While there may be legitimate reasons for employers to see work related information, most employers also monitor personal communication, some of which is highly sensitive.

The leaders of the Institute have been intimately involved with efforts to protect employee privacy for over a decade. When Congress considered legislation to eliminate surveillance issues from 1988 to 1994, Institute president Lewis Maltby was consulted regularly by both Senate sponsor Paul Simon and House sponsor Pat Williams regarding drafting, policy, and strategic issues. Maltby testified before Congress three times on this legislation, appearing before both the House and Senate. This legislation progressed steadily until it was stopped when control of Congress changed in 1994.

When privacy legislation was reintroduced into Congress in 2000, the Institute was once again in the lead. It was a New York Times interview with Institute legal director Jeremy Gruber that alerted Senator Charles Schumer to this issue. Gruber and Maltby worked closely with Senator Schumer's staff to draft the Notice of Electronic Monitoring Act (NEMA). Institute president Maltby spoke with Senator Schumer at the press conference announcing NEMA's introduction, testified in favor of NEMA in Senate hearings, and was the primary negotiator with the business community regarding their concerns over NEMA.

The Institute has also been a leader at the state level. Jeremy Gruber worked closely with the staff of the Connecticut ACLU in the successful campaign for electronic privacy legislation in that state. Gruber lead the effort to build the broad coalition of organizations that worked together to enact this legislation. Gruber also worked closely with the ACLU, AFL-CIO, and other organizations to enact workplace privacy legislation in California. This bill passed both houses of the legislature twice, with large bipartisan support, only to be vetoed both times by a Democratic governor. When the Service Employees International Union (SEIU) and leaders of the Massachusetts legislature decided to launch an ambitious bill in 2000, they turned to the Institute for assistance. NWI president Lewis Maltby helped plan the session at the SEIU annual convention at which project was introduced, and spoke to the convention regarding the challenges to be faced in enacting such legislation. Maltby is currently engaged in helping draft the legislation, plan the legislative campaign, and educate grass roots activists.

In addition to working directly on privacy issues, the Institute also helps other organizations work more effectively. This October, we published Electronic Monitoring: Legislative Brief, a comprehensive guide to electronic surveillance legislation for advocates. It includes:

  1. General Background Information
  2. Current Legal Status of Employer Monitoring
  3. Model Statute (with commentary)
  4. Challenges and Responses
  5. Potential Allies
  6. Bibliography.

Using the legislative brief, someone new to the issue can become a reasonably effective advocate in a single morning, and a relative expert in a few days. For those whose efforts have taken them beyond the depth of the legislative brief, the Institute provides individualized training and counseling.

PRIVATE JUSTICE

Thousands of employers have turned away from the civil justice system in recent years and established their own dispute resolution systems based on binding arbitration. The General Accounting Office has estimated that almost 20% of American employers have now taken this step.

This change is potentially helpful to employees. Because arbitration is far less expensive than litigation, it could place workplace justice within the reach of many people for the first time.

But this promise will only be fulfilled if employment arbitration is voluntary and fair. Unfortunately, much of the time it is neither. Only 2% of employer arbitration programs are voluntary. In the other 98%, "agreeing" to take disputes to the employer's system is a condition of employment. The General Accounting Office (GAO) found in 1994 that the majority of employer promulgated justice systems failed to meet even minimal due process standards. In this form, arbitration may be the death knell of civil rights. Laws against employment discrimination mean little if violations can only be taken to employer controlled courts where the employee has little hope of success.

For years, the leaders of the Institute have fought these abuses. Institute president Lewis Maltby wrote one of the first law review articles calling attention to this development (Paradise Lost: How the Gilmer Court Lost the Opportunity for Alternative Dispute Resolution to Improve Civil Rights, New York Law School Journal of Human Rights, Volume XII Part One, Fall 1994). Maltby was called upon by the American Bar Association to serve on its National Task Force on Alternative Dispute Resolution. The mission of this group was to create a due process protocol for employment arbitration that would be fair and acceptable to all concerned parties. The Task Force created the Prototype Agreement on Job Bias Dispute Resolution (the ADR Protocol), which was universally endorsed by all concerned groups, from civil rights organizations and unions to employer representatives. Maltby went on to play a leading role in persuading the dispute resolution industry not only to endorse the Protocol, but to change their operating procedures to comply with it. This effort was a great success. Today, the American Arbitration Association (AAA), and other major providers of arbitration services, have revised their rules to comply with the Protocol, and refuse to accept cases from employers who will not agree to be bound by these rules. In the process, Maltby was elected to the Board of Directors of AAA, and co-chair of its National Advisory Council on Employment Disputes, positions which he still holds.

This year, as an independent organization the Institute took up the issue of voluntariness. We filed an amicus brief in the Supreme Court in the case of Adams v. Circuit City, which concerns the scope of Section 1 of the Federal Arbitration Act. Federal courts have consistently held that the FAA leaves arbitration agreements entirely in the hands of the parties, and that state laws which attempt to protect weaker parties against abuse by those with superior bargaining power are preempted. Our brief argued that so long as the FAA is interpreted in this way, it should not be applied to employment agreements, where such protective state laws are almost always essential.

The Institute also helped take this issue to Congress this year. Lewis Maltby was called upon by Senator Feingold and Congressman Markey, co-sponsors of the Civil Rights Procedures Protection Act (S.121, H.R.872), which would require all agreements to arbitrate statutory employment to be voluntary, and render unenforceable agreements that are a condition of employment. Maltby consulted with both regarding drafting and strategic issues and testified in favor of the Senate legislation on March 1.

RIGHT TO ORGANIZE

The right to organize is among the most critical of workplace rights. First, it is the workplace embodiment of freedom of association. Moreover, it is the tool by which other rights are often protected. It is not possible to legislate every employment rights issue, even in theory, much less in practice. Workers must be able to rely upon collective bargaining for protection in these situations.

Institute staff supported the right to organize from the first days as part of the ACLU. We worked on every major piece of labor law legislation in the 1990's including:

Striker Replacement Act- which would have outlawed employer retaliation against workers who exercise their legal right to strike.

TEAM Act- which would have allowed the creation of organizations which purported to speak for employees, but were controlled by employers.

Truth in Employment Act: Would have allowed employers to discriminate against union members, members of civil rights organizations, and others who might object to the company's treatment of workers.

Institute president Maltby also worked closely with the Clinton Administration's Commission on the Future of Worker-Management Relations, under the direction of former Secretary of Labor John Dunlop.

Since becoming independent, the Institute has added a new dimension to our efforts. Instead of merely supporting labor law reform legislation, which often has little hope of success in the current political atmosphere, we are working to help improve that atmosphere, primarily through the AFL-CIO's Voice@Work campaign. Voice@Work is designed to educate local organizations about the reality of the workplace and the need for unions, thereby building a stronger base of support for reform legislation in the future. The Institute's role is to help involve civil rights organizations in this program. On May 18, the Institute and Americans for Democratic Action co-hosted a meeting in which 40 civil rights organizations were introduced to the Voice@Work campaign and its leader, Arlene Holt-Baker. Since then, we have been working with Holt-Baker to build upon this foundation.

GENETIC DISCRIMINATION

The recent explosion in our collective understanding of human genetics has created a strange mix of opportunity and peril. On the one hand, greater understanding of the specific genes that are linked to genetic diseases such as Huntington's, Alzheimers, and breast cancer and how they function may be the first step to finding a cure. But the potential immediate effects are frightening. Long before prevention or a cure is available, it will be possible to inexpensively determine who among us is at elevated risk for future genetic disease.

When this occurs, discrimination against those with genetic markers will occur on a massive scale. Employers, for example, have significant financial incentives to avoid hiring such people, because they are likely to increase the cost of company provided medical care. Insurers, especially life and health insurers, have even greater incentives to discriminate against people with genetic markers. Genetic discrimination is already occurring where employers and insurers are able to obtain genetic information without the cost of a test.

Current law does little to protect against this abuse. The federal Americans with Disabilities Act has been interpreted by the Supreme Court in a manner that makes it highly unlikely to apply to future disabilities. Fifteen states have recently enacted statutes aimed at ending genetic employment discrimination. Unfortunately, the majority of these are of little or no use because they are not well drafted. For example, several statutes prohibit genetic employment discrimination, but allow employers unlimited information to employees' genetic information. Allowing employers to collect genetic information that has substantial financial implications but expecting them to ignore it when making employment decisions is not realistic.

The staff of the Institute has been working to prevent genetic discrimination for over a decade, long before the problem was generally recognized. In 1989, Institute president Maltby served on the genetic testing advisory council of the (then) Congressional Office of Technology Assessment, and assisted in writing its 1990 report. When Congress showed little interest in this issue, Maltby turned his attention to state legislatures. He has worked with the National Council of State Legislatures for years to educate its members about the dangers of genetic discrimination. This included an address to the entire membership at its annual meeting in 1995.

In 1997, Institute staff (still with the ACLU), published Genetic Discrimination: A Legislative Brief. Like our other legislative briefs, this was designed to help state lobbyists for the ACLU and other civil rights organizations (and their grass roots supporters) become sufficiently expert on this difficult subject to be effective advocates. We especially wanted to help states that wanted to enact anti-discrimination legislation write their laws in a manner that would be effective. Many of the early state laws were of very limited use because such education was not available.

At the same time, Jeremy Gruber began working with Congress, which had now become concerned about the issue. Gruber is now a key advisor to Senator Kennedy and other legislators supporting legislation which would outlaw genetic employment discrimination. When he saw that the support among the public interest community was insufficient to support federal legislation, Gruber organized the Coalition for Genetic Fairness, a coalition of civil rights, public interest, and disability rights groups working together to advance anti-discrimination legislation. Due in part to these efforts, the legislation moved forward. Hearings were held for the first time on May 21, 1998. Gruber testified at these hearings.

When the Institute became an independent organization this year, our work on genetic testing continued. In addition to his work with Congress, Gruber began working with the Clinton administration, meeting several times with its chief health policy officer. This helped lead to President Clinton issuing an executive order prohibiting genetic discrimination by all federal agencies on February 8, 2000. Gruber was invited to the White House for the announcement of the order.

Our state efforts also continued to progress. The Institute worked closely with the Michigan ACLU to enact genetic testing legislation. We drafted the bill, traveled to Michigan to testify in its support, and helped the ACLU with coalition building, public education and all other aspects of the campaign. This effort bore fruit on March 15, when Michigan enacted what is widely considered the strongest genetic discrimination in the country.

Work with the National Conference of State Legislators intensified this year. Institute president Lew Maltby was asked by NCSL to chair a committee on genetics in employment. The committee's mission is to write a comprehensive guide to genetic discrimination legislation for state legislators. This effort is a wonderful opportunity to educate state legislators about the need for protective legislation and to help them write legislation that will be effective. The subcommittee members have now been selected. A detailed outline of the report was sent to NCSL on December 5.

DRUG TESTING

During our years with the ACLU, the Institute's staff were the country's leading voice opposing indiscriminate drug testing of employees. We participated in well over 200 media interviews arguing against this unjustified invasion of privacy. Institute president Maltby testified before Congress on this issue in January of 1992.

Our last project with the ACLU was the creation of a white paper on the cost-effectiveness of drug testing, Drug Testing: A Bad Investment. This report opened a new front on the fight against drug testing. Rather than continuing to argue against drug testing on privacy grounds (which had reached the point of diminishing returns), it examined testing from a pragmatic basis, specifically whether it really improved safety and productivity as the testing industry and its government allies had long proclaimed. Bad Investment synthesizes a decade of research by independent institutions such as the National Academy of Sciences to show that drug testing does nothing to improve corporate performance, and may even make it worse.

Since becoming independent, we have continued to call the attention of employers and the public to this issue, speaking out in interviews in the Los Angeles Times, San Francisco Chronicle, and other newspapers. We are currently working with Human Resource Executive, a leading journal for human resource executives, on another such story.

In addition, we have continued our work on better alternatives to urine testing. Impairment testing, despite having been commercially available for several years, is still unknown to most employers. One reason is that the success of impairment testing with the few employers which use it has never been documented. The Institute is currently completing such a report. This involved identifying each of the employers in the country that have used impairment testing and interviewing them about their experience. This report is due to be completed by the end of the year.

We are also completing another project whose goal is to determine why impairment testing has not had more commercial success and help create more effective strategies for the future. On December 1, the Institute held a round table conference for leaders in impairment testing from the privacy community, industry, unions, and academia to discuss why impairment testing has not been generally accepted by employers and what can be done to improve this. The report from this conference was just completed.

ONGOING ACTIVITIES

PUBLIC EDUCATION

In addition to specific projects, the Institute conducts an ongoing program of public education through the media. During the year, we participated in over 250 electronic and print media interviews. Some of these are very high profile, such as Jeremy Gruber's interview with ABC/World News tonight on November 29. While there is little or no data on this point, we believe the Institute is the most frequently quoted human rights organization in the country on employment rights issues.

ASSISTING OTHER ORGANIZATIONS

Because the Institute has a unique depth of knowledge on workplace rights issues, we are constantly called by other organizations for advice and help. During the last year alone, these organizations included:

CONCLUSION

The Institute's first year as an independent organization has been remarkably successful; even more successful than we had planned. We had anticipated some decrease in interest in our work when we became independent and no longer had the institutional credibility of the ACLU. Fortunately, this did not occur. All of our partners in Congress, the media, and other organizations continued to work with us without hesitation, and new calls for our participation have continued to grow.

We face two key challenges in the new year. The first is to become an effective participant in the effort to enact international human rights laws. As the economy becomes global workplace human rights laws must become global as well. The Institute needs to decide on an overall strategy to help develop international workplace rights. We also need to create a role in which the Institute can help carry out this strategy.

The Institute's other challenge is organizational. We need to build a stable support structure to provide the financial resources required to carry out our work into the future. Our current plan to secure a loan from one of our supporters which we will use to hire a part time development director.

The Institute has had an exciting and constructive first year. We are, as Roger Baldwin once said, "traveling hopefully" as we enter the new year.



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