NATIONAL
WORKRIGHTS INSTITUTE
ANNUAL REPORT
2002
The National Workrights
Institute was founded with
the vision of bringing human rights to the American workplace for the first
time in history. While the United
States has generally done a good job of protecting individuals from government
abuse compared to most other countries, we have deliberately failed to protect
human rights in the world of work. We
have made this tragic mistake in the erroneous belief that protecting human
rights on the job would disrupt industrial efficiency and lower our standard of
living. The truth is that protecting
human rights is completely consistent with high productivity and prosperity. Our failure to recognize this has made us
both poorer and less free.
The Institute’s efforts (both as part of the American
Civil Liberties Union and now as an independent organization) have done much to
increase workplace human rights. Our
work was integral in the creation of 43 new state laws improving legal
protections regarding:
The
year 2002 was a challenge to all human rights groups, including the National
Workrights Institute. Congress was
consumed by national security issues arising out of 9/11, and the war in
Afghanistan. Initiatives to improve
human rights, including the Institute’s, received little attention. When human rights issues were considered,
they were often trumped by security concerns.
This state of affairs has continued into 2003, especially because of the
war in Iraq.
Even
in this difficult situation, however, the Institute was able to make
progress. We did so primarily by
seeking out other creative opportunities to advance workplace human
rights. The Institute also moved
forward in Congress on the one issue, genetic discrimination, that was not eclipsed by 9/11.
Lewis L.
Maltby
President
Breakthroughs in genetic science are bringing us closer to the day when there will be cures for breast cancer, Huntington’s disease, Alzheimer’s and other genetically linked illnesses. These same breakthroughs may usher in a dark new era in employment discrimination as employers attempt to reduce medical expenses by screening out applicants whose genetic makeup puts them at increased risk for future disease.
Ten
years of leadership by the Institute’s staff have helped the public understand
the importance of this threat and helped employers understand that such
discrimination is wrong.
The
fruits of this effort can be seen in the 38 state laws outlawing genetic
discrimination in employment. The
Institute contributed to these laws by:
·
Writing the model
statute on which many of them are based
·
Creating educational
materials for state activists and legislators which have been used throughout
the country
·
Testifying in support
of legislation (and helping state activists draft their own testimony)
·
Conducting training for
state legislators on genetic issues under the auspices of the National
Conference of State Legislators (NCSL).
In
some cases, the Institute has been the primary moving force behind the
legislation. For example, in Michigan,
the Institute formed a partnership with the ACLU, helped draft and persuade the sponsors to introduce it,
provided training to legislative staff and local activists, testified in favor
of the bill, and provided responses to challenges from the bill’s opponents.
In
addition, Institute President Lewis Maltby served as chair of NCSL’s Committee
on Genetic Issues in Employment. After
two years of intense effort, this blue ribbon group issued a comprehensive
guide to genetic employment issues for state legislators.
This guide will accelerate the enactment of new state laws by making it easier for state legislators to draft such legislation. It will also improve the quality and effectiveness of genetic discrimination legislation. Genetic discrimination is a complex issue with many difficult scientific, policy and legal issues. Drafting an effective statute is a challenge, which many of the initial state laws did not meet. Having the NCSL report in the hands of state legislators will greatly improve the effectiveness of future laws.
The
Institute has contributed to the progress of federal genetic discrimination
legislation through our continued leadership of the Coalition for Genetic
Fairness, a group of 62 civil rights and disability rights organizations. Institute Legal Director Jeremy Gruber took
the lead in creating this group in 2000.
The Coalition’s continued action on the Daschle/Slaughter bill (S.318/H.R.
602) and the Snowe bill (S.1995) (the Republican alternative) helps
keep this issue moving forward in Congress.
Despite
broad bipartisan support for legislation banning workplace genetic
discrimination, success will require difficult discussions with the business
community and their allies in the White House and Congress. The Institute is the only progressive
organization that has established a working dialogue with these groups. This dialogue is necessary for the
negotiations to be successful. For
example, Gruber is the only member of the civil rights community who has been
able to establish a dialogue with the White House Domestic Policy Council
Office (which is responsible for employment and insurance issues).
As
this report goes to press, the Senate Health, Education, Labor and
Pensions Committee has passed a
strong bipartisan genetic discrimination bill and sent it to the floor.
Electronic
surveillance is the area in which our Congressional efforts were most
damaged. In the spring of 2000, Senator
Schumer and Congressmen Canady and Barr introduced the Notice of Electronic
Monitoring Act (NEMA). The
Institute worked extensively with Schumer’s staff and played a major role in
drafting this legislation. The
Institute’s participation made the legislation much stronger. For example, Congressional attention was
initially focused on employers monitoring e-mail (in part because of a New
York Times story on this practice in which Institute Legal Director Jeremy
Gruber was extensively quoted). The
Institute was able to persuade the sponsors that all forms of electronic
monitoring should be covered by the bill.
After
hearings (at which Institute President Lewis Maltby testified) and
extensive discussions with the business community, the objections to NEMA were
understood and we knew how to address them without sacrificing the Act’s
objectives. At the beginning of 2001,
Senator Schumer was negotiating with Senator Hatch in an effort to reach a
bipartisan bill.
These
efforts came to a halt with 9/11.
Senator Schumer, as the senior senator from New York, was required to
spend so much time dealing with the fallout that NEMA (along with many other
projects) was forced off the agenda.
The
Institute responded by seeking new Congressional sponsors and exploring
strategies for introducing NEMA as an amendment to other privacy legislation,
such as the reauthorization of the Fair Credit Reporting Act.
In
early 2003, Senator Schumer’s office informed the Institute that they were
ready to re-introduce NEMA. We worked
closely with Schumer’s staff to redraft NEMA to incorporate the lessons learned
in the 2000 campaign, and expect the bill to be reintroduced shortly.
We
also used the time that the lapse in Congressional interest made available to
lay the foundation for stronger legislative initiatives in the future. For over a year, the Institute worked with
the U.S. General Accounting Office on a report to
Congress on computer privacy in the workplace. Institute staff had numerous discussions with GAO staff highlighting the shortcomings in workplace privacy today and how they could be improved. We also shared much of our independent research with the GAO.
The
GAO’s draft report in August of 2002 was a great disappointment. The one positive point was the report’s
recognition that current common law privacy protection is virtually
non-existent (which GAO staff learned from a report prepared by the
Institute). This corrects previous
reports from many sources that overestimate the strength. This correction will make it harder for
those who oppose NEMA to claim that legal protection is already in place. In many other important areas, the report
was badly flawed.
The
Institute worked overtime to correct these flaws. We provided extensive critical comments, which we followed up by
telephone. We also enlisted the efforts
of other GAO advisors and then Representative Patsy Mink (the member of
Congress who requested the report).
Unfortunately,
the final report (issued October 28) made only modest improvements.
The Institute responded by forming a coalition of
privacy groups to send a joint letter to the GAO and Congress, pointing out the
shortcomings of the report. Our letter
was signed by the ACLU, Electronic Frontier Foundation, EPIC, Center for
Democracy and Technology and Robert Ellis Smith (publisher of the Privacy
Journal). This letter
demonstrates emphatically that the GAO report does not represent the views of
the privacy community. Making this
point is essential to minimize the harm the report will do to our efforts to
enact NEMA.
We are now beginning an effort to produce a better
report from another government agency, probably the National Research Council. We will seek a member of Congress to
initiate this process. If this is
successful, we will work closely with the sponsor’s office throughout the
process to ensure that the final report is valuable and constructive.
The
Institute also used the hiatus in federal efforts to increase our efforts to
enact state legislation. At the
beginning of 2002, the only state with laws providing any protection for
workplace privacy was Connecticut. This
law, which requires employers to give employees notice of all monitoring
programs, was passed as the result of a joint program between the Institute and
the Connecticut ACLU.
We
now have legislative efforts underway in 6 states:
In
4 of these states, legislation has been drafted and introduced. In New York and New Jersey, we have drafted
the legislation, but are still looking for sponsors.
In
September 2002, Delaware enacted a new statute requiring employers to give
notice of electronic monitoring. This
was particularly gratifying since the Institute was able to make a substantial
contribution without providing a great deal of hands-on assistance. Our model bill on employer notice (which was
the basis of NEMA) is now so well known and respected that the sponsors of the
Delaware legislation learned of it and used it on their own. We did not have to spend staff time teaching
the sponsors about the issues and why our model best addresses them.
The
Institute also continued our dialogue with the business community. In many cases, employers are willing to
change to alternative methods of data gathering that are far in advance of
anything lawmakers are considering. For
example, hundreds of employers have abandoned web access monitoring systems
that give management a list of the websites visited by each employee. Instead, they are using web access software
that limits the amount of time employees can spend on non-work related
sites. With this method, monitoring
completely disappears.
One
example of Institute/business dialogue during 2002 was our participation in HR
magazine’s February feature article about how employers should set appropriate
limits on their monitoring policies.
Another is Lewis Maltby’s presentation to members of management at a
conference held by Privacy and American Business.
Courts
in several states have begun to deny plaintiffs in employment discrimination
cases access to critical witnesses.
These courts have ruled that every employee of the defendant employer is
represented by the employer’s counsel.
The American Bar Association’s ethical rule (Rule 4.2) prohibits
an attorney from speaking directly with an adverse party when they are represented
by counsel. The combination of these
two makes it an ethical violation for an attorney representing a victim of
employment discrimination to interview co-workers who may be critical
witnesses. But without this
corroboration, it is almost impossible for the employee to make her case. In many cases, a plaintiff without
corroboration will not get past summary judgment.
The
Institute has been working in partnership with the NAACP Legal Defense Fund and
the National Employment Lawyer’s Association to solve this problem. Our strategy was to work with the ABA to
modify the wording of Rule 4.2 in a manner that rules out this harmful
interpretation. Specifically, we worked
with the ABA’s Ethics 2000 Commission to help produce a proposed modification. This effort was successful. A group of Commission members, however,
submitted a minority report that, if accepted, would have made the problem
worse.
Our
coalition responded by mounting an intense lobbying program. We contacted every state delegation to the
national House of Delegates meeting, explained our position, and requested the
opportunity to meet with them. We also
attended the meeting (held in Philadelphia) and attempted to talk our
way into state caucus meetings. We were
ultimately able to meet with 17 state delegations. Meanwhile, the authors of the minority report were conducting
their own campaign.
On
February 5, 2002, the ABA House Delegates rejected the minority report, and
accepted our proposed language for modifying Rule 4.2.
This
is a great victory, but it is not yet complete. This issue is controlled by state law; the ABA rules carry great
weight, but they are only a guide. The
Institute continues to work with the NAACP Legal Defense Fund and NELA to make
sure the correct decision is made when this issue arises before state courts or
legislatures.
Employers
have always made use of criminal records in the hiring process. In some cases, this is completely
appropriate. Few of us would care to
have our children driven to school by a bus driver who had recently been
convicted of drunk driving. Many
people, however, have been turned away from jobs because of past convictions
that are minor, many years in the past, and/or unrelated to the nature of the
job. Some employers have official
policies against hiring anyone with any criminal conviction under any
circumstances. Eli Lilly, for example,
fired Kimberly Kelly from her position as a pipe insulator because prior to
joining the company she had bounced a $60 check and was found guilty (without
a hearing) of passing a bad check.
One
reaction by employers to 9/11 is increasing their use of criminal records. Companies that supply criminal records to
employers report that their business has increased at least 30% since September
2001. It appears that the number of
companies with zero tolerance policies may be increasing even faster.
Such
policies are arbitrary and unfair. If
zero tolerance were to become an industry standard (as drug testing has),
the 43 million Americans with criminal convictions would be unable to
work. This would not only be
devastating to these people and their families, but would severely damage the
U.S. economy. Moreover, zero tolerance
policies fall most heavily on Blacks and Hispanics, in violation of federal
civil rights laws.
The
Institute now has a foothold to combat this abuse. We were invited to participate in a study of the use of criminal
records sponsored by the Department of Justice, through an organization named
SEARCH. The final report will receive a
great deal of attention from Congress, the Bush Administration, state
legislators, and many others.
SEARCH’s
original focus was to identify obstacles that hinder employers’ access to
criminal records so they can be eliminated.
The Institute, through persistence, has convinced the other members of
the project and the Department of Justice to expand the project to include the
ways employers use criminal records.
The final report will caution employers, lawmakers, and the public about
the legal and ethical shortcomings of zero tolerance.
To
further reduce the improper use of criminal records, the Institute suggested to
SEARCH the need for an educational program for employers on this subject. SEARCH has agreed with this idea, and has
filed a grant request with the Department of Justice.
The
Institute has also taken the first small step in our own education
program. In November, New York
Employment Law & Practice (a leading journal for New York employment
lawyers) published Lewis Maltby’s article on the legal risks for employers
who adopt a zero tolerance policy. We
plan to reach even larger audiences by writing and placing articles in leading
national publications such as Business Week and HR magazine. The third step in this program is to produce
materials for the websites of business organizations such as the American
Management Association, Society for Human Resource Management (SHRM),
and Business for Social Responsibility.
We are currently seeking financial support for this program.
A
significant segment of American employers have never accepted the right to
organize, despite the fact that it has been part of federal law for 67
years. These employers regularly
sponsor legislation designed to undermine the right to organize while
ostensibly promoting some positive goal.
This
year’s attempt was a proposal to reduce picket line violence (which is rare)
by subjecting workers who commit an assault during a strike to 20 years in
federal prison under the Hobbes Act (which outlaws extortion from companies by
threat of violence). Employer agents,
such as security guards, would not be covered.
The
Institute worked with the Steelworkers’ Union and progressive members of
Congress to fight this proposal.
Hearings were held on September 26, 2002 by the House Subcommittee on
Employer-Employee Relations of the Education and the Workforce Committee.
Institute
President Lewis Maltby testified before the Subcommittee. Rather than challenge the chair, Maltby
agreed that it was important to reduce workplace violence and described what
would be needed to address the most common sources of violence. These include:
·
requiring better
physical protective barriers for convenience store clerks and taxi drivers
·
improving the substance
and enforcement of OSHA regulations
·
strengthening
whistleblower protection laws.
Some
members of the Subcommittee responded positively to these suggestions. This shifted the focus of the hearing away
from the minor problem of union violence to more serious problems of workplace
violence that the sponsors were not anxious to discuss. In part because of this experience, little
more was heard regarding Hobbes Act “reform”.
Under
federal law, unions are required to represent all members of the bargaining
unit. Employees are not required to
join the union, but they are required to pay their proportionate share of the
costs of obtaining the benefits that they receive. This is only fair. Since
all employees receive the higher wages and benefits negotiated by the union,
all employees should share the costs of negotiating the contract.
Some
employers, however, have created an organization to upset this balance. The National Right to Work Foundation
sponsors state legislation which would allow employees to accept the benefits
of union membership without paying their share of the costs. These so-called right to work laws undermine
unions by denying them a legitimate source of income.
The
Right to Work Foundation’s most recent campaign took place in New
Hampshire. The Institute realized that
it was critical to refute the sponsors’ claim that the bill protected freedom
of association, and that labor was not the right party to undertake this
responsibility. We presented the issue
to the New Hampshire American Civil Liberties Union. The ACLU was happy to set the record straight, but did not have
the staff time during a legislative session to work on the issue. The Institute produced draft legislative
testimony, op-ed pieces, and letters to the editor for the ACLU so that they
could weigh in on the issue.
Adding
a civil rights theme to what had been perceived as a fight between labor and
management helped bring about the bill’s overwhelming defeat.
One of the tragedies of employment law is that the few laws we have are too seldom enforced. Litigation has become so expensive that the plaintiffs’ bar will not take cases in which the employee has less than $75,000 in provable damages. This means that over 90% of employees who seek legal assistance from the private bar are unable to obtain an attorney. Agencies such as the EEOC are able to help some people, but cannot begin to shoulder the entire load. The sad truth is that most people who have a legitimate case against their employer under current law never obtain representation and never receive justice.
Many
employers (at least 20%) now have arbitration systems (because of
their own concerns about the costs of litigation). Almost all of these systems, however, are
completely involuntary. Employees must
“agree” to use the arbitration system as a condition of employment. To make matters worse, the courts have not
required private arbitration to meet due process standards.
Most
organizations either ignore the limitations of the civil justice system and
fight to maintain the status quo, or ignore the shortcomings of current
arbitration and promote it blindly.
The
Institute follows a unique path that recognizes the need for arbitration while
simultaneously working to reform it.
For example, the Institute:
·
helped write the ABA’s
Due Process Protocol for Employment Arbitration, and played a major role in
convincing the dispute resolution industry to comply with it
·
filed an amicus brief
in the Supreme Court in Circuit Cities v. Adams arguing that the Federal
Arbitration Act should not be interpreted in a manner that allows employers to
force arbitration upon unwilling employees.
·
testified in favor of
legislation sponsored by Senator Kennedy (S. 2435) that would have
banned arbitration as a condition of employment.
At the same time, the Institute has opposed attempts
to eliminate employment arbitration by:
·
conducting
groundbreaking research demonstrating that employees who take their cases to
arbitration do as well or better than those who go to court.
·
speaking to many
journalists about the benefits of arbitration.
Recent examples include the Washington Post (September 2002),
Chicago Tribune (September 2002), and Forbes (November
2002).
In
the face of the superior political power of employers, it is important that the
communities that want to improve employee rights work together
effectively. Unfortunately, Labor and
the civil rights community have not worked well together in the past. Many have called for better cooperation, but
the situation remains unchanged.
At
the beginning of 2002, the Institute created a new model of Labor-human rights
cooperation. This process began with a
candid analysis of why co-operation has been so difficult. We then shaped the new model in a manner
that overcomes these problems.
In
June, we launched a new organization in Michigan based on this model, the
Workplace Justice Committee. Our
partners in the Committee are the ACLU, the United Auto Workers, and the United
Food and Commercial Workers. The
individual members scarcely knew each other at first, but now have a good
working relationship and a common agenda.
We are preparing to introduce legislation on electronic monitoring and a
living wage ordinance.
If
we are successful in Michigan, we will replicate the model in other states.
Public
education is the foundation of the Institute.
We have always been active with the print and electronic media,
averaging at least 250 interviews annually.
Last June, we added a new dimension to our public education program with
the opening of our website (www.workrights.org).
The
results have been excellent. Many
leading civil rights organizations have set up reciprocal links to our
site. We receive a steady stream of
contacts from workers, journalists, employment attorneys, unions, and academics
that have learned of the Institute through the website.
The
coming year promises to be even more challenging than the last, especially with
all three branches of the federal government dominated by individuals who
oppose our policies. We believe,
however, that through diligent and creative effort, we can find opportunities
to expand workers’ human rights. As Ira
Glasser (the legendary executive director of the ACLU) once said, “the tide
of history is with us, but only if we keep swimming”.
166
Wall Street
Princeton,
New Jersey 08540
Tel: (609)
683-0313 Fax: (609) 683-1787
www.workrights.org
Lewis L. Maltby, President
Jeremy E. Gruber, Legal Director