National Workrights Institute

A History of Accomplishment

The National Workrights Institute was founded in 1988 by the American Civil Liberties Union. The Institute’s mission is to extend protection for human rights such as freedom of expression, privacy, due process, and freedom of association into the American workplace. Lewis Maltby, a private sector executive and vice president of the Pennsylvania ACLU, became the Institute’s director.

Since the United States Constitution and Bill of Rights do not apply to private corporations, the Institute’s challenge is to create new laws protecting human rights at work. Our strategy is to educate the public about their lack of rights at work and the abuses this leads to. When public concern arises to the point where lawmakers become concerned. the Institute works with them to draft and enact effective legislation.

In 2000, the Institute spun off from the ACLU to become an independent 501(C)(3) organization. In 2004, the Eleanor Roosevelt Society was established to provide giving, recognition and leadership opportunities for individuals who provide $500 or more to the Institute.

In its relatively short life, the Institute has made great contributions to expanding workplace rights.

These includes:

Protecting Employees’ Private Lives

In recent years, many employers have attempted to exert control over employees’ private lives. In most cases, employers are attempting to control health care costs. Other employers are trying to force their personal moral or political standards on their employees. People have been fired for smoking or drinking in their own homes, refusing to contribute to the employer’s political party, having an abortion, overeating, dating someone the employer disapproved of, refusing to support the war in Iraq, and many other equally unjust reasons having nothing to do with job performance.

The Institute has worked hard to enact state laws prohibiting employers from penalizing employees for private behavior that does not affect job performance. In 1992, we published our Legislative Guide to Lifestyle Discrimination. This publication educates civil rights lobbyists and lay activists about the issue, provides a model statute with commentary, lists the objections opponents of the legislation will raise, and provides strong responses to those objections.

Hundreds of copies of the Guide have been distributed to ACLU staff lobbyists, union officials, lay activists, and sympathetic legislators across the country. Institute staff members conducted numerous training sessions for our allies in New Jersey, Michigan, Washington and other cities. When necessary, staff members drafted legislative testimony for our allies, and traveled to Vermont, North Carolina, Pennsylvania, and other states to testify in person.

These efforts helped lead 29 states to enact legislation banning or restricting employer control of legal off-duty behavior. The best of these laws also have the effect of banning employment discrimination based on sexual orientation in states such as Colorado that have repealed their sodomy laws.

Electronic Surveillance

Modern technology makes it possible for employers to monitor every aspect of employees’ behavior and communication. This includes listening to employees’ telephone calls, reading their e-mail and documents in their hard drive, looking at the websites employees visit, and watching employees with hidden cameras. Almost all large employers (92%) conduct at least one form of electronic monitoring.

Monitoring is not limited to business related communication and behavior. Employees’ e-mail to spouses, physicians, and accountants about sensitive personal matters are frequently read by employers. Employees’ visits to the Internet for help with domestic violence, medical issues, financial problems, marital difficulties or other private matters are also monitored. Surveillance cameras proliferate, even in bathrooms and locker rooms. Even employees’ home computers are now monitored when they are networked to office computers.

Virtually all of this activity is legal. Federal wiretapping laws prohibit employers from deliberately eavesdropping on personal telephone calls made from work. But these laws have not been revised since 1986, leaving virtually no privacy protection for more modern forms of communication.

From 1989 through 1994, the Institute worked closely with Senator Simon and Congressman Williams on the Privacy for Consumers and Workers Act This legislation would have required employers to give notice of electronic monitoring, required employers to have reason to read personal messages, and banned video surveillance in locker rooms and bathrooms. Institute President Maltby testified before Congress in support of this legislation on four separate occasions. The act made significant progress until it was derailed by the Gingrich Republicans who took control of Congress in 1994.

In 2000, an interview in the New York Times by Institute Legal Director Jeremy Gruber sparked the attention of Senator Charles Schumer, leading to the introduction of the Notice of Electronic Monitoring Act. The Institute worked closely with Schumer and his staff to draft this legislation. Maltby shared the podium with Schumer at the press conference introducing the bill and later testified before the House Subcommittee on the Constitution.

While seeking a federal solution, the Institute has worked with numerous state legislatures and conducted educational presentations for state senators and representatives through the National Association of State Legislators. In 1998, the Institute and ACLU of Connecticut worked in partnership to enact the first state statute regulating workplace electronic surveillance. Additional state bills are pending.

We have also worked with employers, educating them about less intrusive methods of addressing the legitimate business concerns that lead to monitoring. For example, our work is prominently featured in the website of Business for Social Responsibility.

Genetic Testing

Breakthroughs in genetic science are a two edged sword. They offer the promise of finding cures for genetically linked diseases such as breast cancer. But they also open the door to employment discrimination. Employers have financial incentives to identify applicants with potentially expensive genetic mutations and refuse to hire them. For example, the Burlington-Northern railroad was recently found to be conducting secret genetic tests for carpal tunnel syndrome.

Currently workplace genetic testing is limited because the tests are expensive. As improved technology lowers the cost of testing, it will become more common. Unless legal protection is created, men with the gene for Huntington’s Disease and women who carry one of the genes associated with breast cancer may face a lifetime of job discrimination.

The Institute identified this problem long before it emerged. One of our first projects was to serve on the advisory council of the Congressional Office of Technology Assessment in its report to Congress about the use of genetic information by employers. In its 1990 report to Congress, OTA pointed out the potential for widespread employment discrimination and the lack of legal protection against this abuse.

Since then, the Institute has worked tirelessly for the enactment of federal legislation prohibiting genetic discrimination by employers. High points in this effort included the creation of the Coalition for Genetic Fairness, a group of 63 civil rights and disabilities rights groups working together to see this issue through Congress. Prior to the Coalition, groups supporting the legislation spoke to Congress and the public in a disconnected and often contradictory manner. The Institute was to first to recognize this problem and played the leading role in creating the Coalition, which we continue to co-chair. The Institute also conducted the critical negotiations with the business community that identified their legitimate concerns and founds ways to address these concerns that did not compromise the legislation’s objectives.

In part because of the Institute’s efforts, the Senate unanimously passed the Daschle bill (S.318) on October 14, 2003. It is now under consideration by the House of Representatives.

While working for federal legislation, the Institute also helped secure the enactment of state laws. For example, the Institute worked with the Michigan ACLU to create the Michigan 2000 statute banning workplace genetic discrimination. The Institute drafted the legislation, provided a legislative guide to educate the bill’s supporters, drafted legislative testimony for local groups, and provided legal and policy consultation throughout the process.

The Institute was directly involved in many other successful legislative campaigns, including Maryland, California, Maine, and Rhode Island. Even in the states where we were not directly involved, we often had an influence. For example, the Delaware legislature used our model act as the basis of its new state law.

Today, 38 states have laws in place protecting employees from genetic discrimination.

Drug Testing

Starting in the 1980’s, employers’ concerns about drug abuse led many of them to adopt drug testing programs that did little to promote workplace safety and productivity, but did much to intrude upon workers’ privacy. Rather than restrict testing to situations in which an employee’s behavior or job performance raises reasonable suspicion that they are using drugs at work, these employers required all employees to submit to drug tests. Often these tests were performed like a strip search in which the employee had to remove lower garments and urinate under the observation of a stranger.

The Institute was one of the few organizations to speak out against indiscriminate testing. Our efforts were instrumental in enacting laws in Maine, Vermont, Rhode Island, Connecticut, Montana, Iowa and Hawaii which restricted testing to situations in which the employer had reasonable suspicion of abuse and/or prohibited testing under strip search conditions.

When further legal progress became impossible, the Institute turned to the business community. Our 1999 report, Drug Testing- A Bad Investment, performed a comprehensive analysis of all available information regarding the impact of drug testing on workplace safety and productivity. The data showed that drug testing does not improve safety or productivity and may even lower them.

Hundreds of copies of A Bad Investment were distributed to employers, journalists, lawmakers and others involved with corporate drug policies. This led to many interviews in business media and secondary articles in business publications such as HR (published by the Society of Human Resource Managers, the world’s largest association of HR professionals).

This effort dovetailed with employers’ own growing questions about the cost-effectiveness of drug testing. According to the American Management Association, the number of employers conducting drug testing declined by 19% between 1996 and 2000. Discussions with AMA executives indicate that the number of tests conducted has declined even more, because many companies that continue to test cut back on the number of tests conducted.

Employment Arbitration

Throughout the 1990s, thousands of employers turned away from the courts as a method of resolving employment disputes and used arbitration instead. According to the U.S. General Accounting Office in 1997, 19% of employers were using arbitration, and the number of such employers was increasing at the rate of 50% per year.

This development has much to offer employees. The cost of litigation is far beyond the means of most employees, especially when they have been fired. Arbitration, because it is far less expensive, has the potential to increase access to justice for workers.

This will only happen, however, if arbitration is conducted in a fair and evenhanded way. Employers, however, have little financial incentive to make their systems fair, and the law does not require private arbitration to provide due process.

The Institute set out to ensure that employment arbitration was fair. In landmark cases such as Phillips v. Hooters, we helped the federal judiciary understand the necessity of establishing due process standards.

The judicial standards, however, provide only a bare minimum of justice.

To provide better standards, the Institute joined a national blue ribbon panel established by the American Bar Association. This group produced a set of rules for employment arbitration (the Protocol) that would provide workers with genuine due process.

This would only occur, however, if the providers of arbitration changed their procedures to comply with the Protocol. Taking this course entailed the risk of losing business and many influential figures in the dispute resolution industry opposed it.

The Institute established strong relationships with the leaders of the industry during the creation of the Protocol. The American Arbitration Association (the industry leader) invited Institute President Maltby to join its Board of Directors. The Institute used these relationships, particularly our strong relationship with AAA President William Slate, to urge the industry to do the right thing and conduct arbitrations strictly in accordance with the Protocol.

Ultimately, this view prevailed. Today, all major providers conduct their arbitrations in compliance with the Protocol.

Right to Organize

The right to organize is critical to workplace rights. It is important in principle as an aspect of freedom of association. It also gives workers the ability to effectively enforce other rights. For example, most employees can legally be fired without cause. In union shops, however, workers can be fired only for a legitimate reason.

Theoretically, the right to organize is protected by the National Labor Relations Act (NLRA). In practice, however, there are so many loopholes and the enforcement procedures are so weak that the right means very little. Moreover, opponents of the right to organize constantly attempt to weaken it still further.

One such attempt involves employers refusing to hire anyone who has a relation to a union, even if they are the best qualified candidate for a job. When the National Labor Relations Board (NLRB) ruled that this violates the NLRA’s prohibition of discriminating based on union membership, employers appealed the Board’s decision to the United States Supreme Court (NLRB v. Town and Country Electric). The Institute filed an amicus brief in support of the NLRB. The Supreme Court upheld the NLRB’s position, making it illegal for employers to discriminate against union activists.

Employers responded by introducing federal legislation to overturn the Supreme Court’s decision by rewriting the NLRA (Truth in Employment Act). The bill was well received, in large part because many liberal and moderate members of Congress have limited understanding of labor law and limited sympathy for unions. When it appeared that it might pass, Senator Kennedy’s office asked the Institute to conduct a special briefing for all Senate staff. Our presentation explained the implications of the bill for all civil rights activity. For example, an employer with a long history of racial discrimination could continue without objection by refusing to hire qualified applicants who were civil rights activists.

The bill failed to pass the Senate. Senator Kennedy credited the Institute’s presentation with playing a critical part in this result.

Another technique for undermining the right to organize is so-called Right to Work laws. These state laws purport to protect workers from being forced to join a union. They do not. Federal law already provides that workers in union shops are free not to join the union so long as they pay their share of the costs for the services the union provides to all workers. The real effect of Right to Work laws is to allow employees in unionized companies to accept the higher pay and benefits the union provides without paying their share of the negotiation expenses. This undermines the union financially by forcing it to spend money for which it will not be reimbursed.

The Institute has consistently opposed Right to Work laws. Most recently, we helped defeat the 2003 New Hampshire bill. Our biggest contribution was to enlist the help of the New Hampshire ACLU, with whom the Institute has a close relationship. The bill’s supporters claimed that it enhanced freedom of association. When the ACLU, the acknowledged expert in civil liberties, categorically refuted this claim, it lost much of its credibility. The ACLU was only able to make this contribution because of the Institute’s help. Our staff briefed the ACLU on the issue and the bill, drafted testimony for the ACLU executive director, and drafted the op-ed that was placed in local papers.

Our joint efforts contributed to the bill’s defeat.

In addition to these projects, the Institute has been involved in every other major labor law reform effort since 1988.

Public Education

The success of our long-term efforts rests on public education. Americans do not have to be persuaded to value their rights and to believe they should not lose them when they go to work. Americans do have to be educated, however, about the lack of legal protection for human rights at work and the extent of the abuses to which this leads.

To accomplish this task, the Institute conducts nonstop media work. Hardly a day goes by when the Institute is not interviewed by the media. Over its lifetime, Institute staff have appeared over 2,000 times in both the print and electronic media, including the New York Times, Washington Post, Los Angeles Times, Christian Science Monitor, U.S. New & World Report, Larry King Live, Crossfire, NPR, and ABC World News Tonight.

In 2002, the Institute added a new dimension to its public education program by opening our website (www.workrights.org).

The enormity of the public education challenge cannot be overstated. Even though many people have had bad experiences at work, very few think of the lack of human rights at work as a problem. In order to succeed, the Institute must convince millions of Americans that the status quo is wrong. While persuading people that losing their human rights at work is wrong is usually not difficult, reaching so many people with our message is a huge undertaking.

In addition to these long-term efforts, the Institute has played an important role in many specific projects of shorter duration. These include:

Helping the ABA revise its rules to ensure that attorneys representing victims of discrimination have access to witnesses who are fellow employees.
Helping enact and defend a Montana statute that requires employers to have a legitimate work-based reason to terminate employees.
Contributed to a United States Department of Justice Report stating that employers can deny employment to ex-offenders only when there is a connection between the nature of the offense and the requirements of the job.

Together, these efforts have done much to increase human rights in the American workplace. The Institute is now beginning to expand its efforts to include efforts to improve human rights in the global economy by working to include employment rights provisions in international free trade agreements.

1/30/04