Background
This section outlines miscellaneous policies that may deter union-busting, reduce incentives for employers to fight unionization, establish higher negotiating positions, and remove other obstacles to building worker power.
Objective of State Intervention
Cities and states can regulate terms of employment in creative ways to better protect workers from retaliation, reduce employer coercion, make the right to strike more accessible, and disincentivize union-busting. Setting and enforcing labor standards that raise the floor for workplace standards while creating conditions more favorable for organizing can help to balance the power dynamic between workers and employers.
Preemption Risk
Creating just cause dismissal standards, providing unemployment benefits for striking workers, and allowing unionized workers to deviate from minimum labor standards all carry a low risk of preemption. Courts could preempt state efforts to ban captive audience meetings, although states have framed these bans broadly to cover non-labor issues to minimize the preemption risk. The preemption risks associated with each of these policies are detailed below.
Options for State or Local Action
I. Just Cause Dismissal Standards
Despite the NLRA’s explicit goal of encouraging collective bargaining, employees face multiple forms of intense interference from employers. Under the employment-at-will doctrine, for example, employers can fire employees for any or no reason (as long as it is not an explicitly unlawful reason, such as one based on racial or sex discrimination), without any warning. This exacerbates the imbalance of power between workers and their employers, resulting in a range of harmful effects including perpetuating systemic racism in unequal labor market outcomes for Black and Latino workers.1
Read:
by Irene Tung, Paul Sonn, and Jared Odessky | National Employment Law Project
While the NLRA prohibits firing workers in retaliation for concerted activity, the at-will rule makes this difficult to enforce. Because almost any reason for firing is allowed by the at-will rule, workers and unions responding to an unlawful retaliatory firing must expend great resources in litigation to show that the employer’s proffered reason is pretextual. A just cause standard would make it harder for employers to come up with pretextual excuses for firing union supporters, thus helping workers benefit from the protections of the NLRA.
Machinists preemption prohibits state regulation of any labor relations areas that Congress intended to be left to the “free play of economic forces.” This doctrine does not apply to laws that “[impose] minimal substantive requirements on contract terms negotiated between parties to labor agreements, at least so long as the purpose of the [regulation] is not incompatible with the general goals of the NLRA.”2 A minimum labor standard affects union and nonunion employees equally and neither encourages nor discourages collective bargaining.3 Laws that set minimum standards for working conditions and benefits are typically not preempted, provided they are generally applicable and do not interfere with the collective bargaining process.
The first—and in many respects, most powerful—way to protect worker organizing is to end the at-will rule of employment and adopt just-cause protections for all workers…providing such protection will go a long way toward insulating workers’ organizing efforts from employer interference.
Sharon Block and Ben Sachs in Clean Slate for Worker Power: Building a Just Economy and Democracy
A growing number of cities and states have implemented just cause termination protections for workers, challenging the norm of at-will employment. In 2021, New York City passed legislation protecting 70,000 workers in the fast-food industry from being terminated or having hours reduced by more than 15% without just cause.4 This law was modeled after a similar ordinance passed in 2019 in Philadelphia, which became the first city in the United States to pass just cause legislation covering parking lot workers.5 And the US Department of Labor defined “termination for just cause” for temporarily nonimmigrant guest workers in a way that protects them from losing certain benefits due to a for-cause termination, going so far as to mandating progressive discipline.6
In the face of preemption challenges, just cause laws have generally prevailed where courts have deemed the statutes broad enough to qualify as a minimum labor standard.7
II. Banning Captive Audience Meetings
Many workers receive far more information from their employer about why they should not join a union than they ever receive from their coworkers or union organizers about the benefits of unionization. Federal labor law protects some employer speech in the workplace, and employers routinely use that protection to engage in coercive acts, including captive audience meetings, where employees are forced to listen to anti-union speech during work time. These meetings are meant to discourage employees from building collective power. While NLRB General Counsel Jennifer Abruzzo is seeking to make captive audience meetings unlawful, the NLRA, as currently interpreted, does not prohibit them.
In recent years, eight states have enacted prohibitions on captive audience meetings in the workplace:8
- New York Labor Law § 201-d
- Minnesota Statutes § 181.941
- Connecticut General Statutes § 31-51q
- Maine Revised Statutes Annotated § 26:10-A
- Oregon Revised Statutes § 659A.840
- Washington Revised Code § 49.44
- Wisconsin Statutes § 111.36 (enjoined)
- Illinois Compiled Statutes 820 ILCS § 57
Crucially, none of these states’ bans are limited to speech about collective bargaining or unionization. State attempts to ban captive audience meetings that focus exclusively on labor would run a high risk of preemption. However, these eight states have attempted to lessen that risk by extending the ban to mandatory meetings covering other subjects, such as the employer’s opinions on religious or political matters. In these broadly framed anti-captive audience laws, the decision to join or support a labor organization is only one of many prohibited topics.
Business groups challenged Wisconsin’s captive audience ban on NLRA preemption grounds shortly after it took effect in 2010. But the state did not contest the case and entered into a settlement in which it acquiesced to the preemption charge. As of May 2024, similar challenges are ongoing in Connecticut and Minnesota, where business groups allege the laws violate employers’ First Amendment rights as well.9 Although the Oregon law has survived challenges initiated by the U.S. Chamber of Commerce and the NLRA, it did so on procedural rather than substantive grounds.10 Because no challenge to a state ban has been fully litigated, the case law is of limited value in assessing a preemption challenge to these kinds of statutes.
III. Unemployment Benefits for Strikers
A key hindrance to workers leveraging their strike power is the loss of income that accompanies a strike. In contemporary America, most households do not have sufficient savings to withstand even a short period without their regular income. One in four Americans has no emergency savings, and about half of all Americans have zero to three months’ expenses in savings. In contrast, most businesses have access to bank loans, diversified revenue streams, or private loans from other companies — avenues that are not available to most workers and allow them to withstand a temporary labor stoppage or slowdown. Almost every state, however, denies striking workers or workers who have been locked out access to any unemployment insurance (UI) benefits.
To level the playing field for collective bargaining and restore the right to strike, states could extend eligibility for unemployment insurance benefits to any worker affected by a labor dispute, whether by strike or by lockout. These workers could be subject to the same eligibility requirements as other workers, where appropriate. For example, a requirement to demonstrate that they are actively seeking new employment should not apply to striking or locked-out workers, but earnings and time-on-the-job thresholds could apply.
Read:
by Daniel Perez | Economic Policy Institute
Though several states allow UI benefits for striking workers under specific circumstances — namely in cases where the employer has broken labor laws, violated terms of a contract, or initiated a lockout — only New York and New Jersey unilaterally extend UI eligibility to striking workers.11 The California legislature recently passed a bill to do the same, but it was vetoed by the governor, who cited budgetary concerns. In New York, strikers become eligible for benefits after 14 days on strike, and they must repay their UI benefits if they receive backpay from their employer after the strike ends. In New Jersey, workers also become eligible for UI benefits after 14 days on strike. There are similar bills pending in the Connecticut and Massachusetts legislatures.
The preemption risk for providing unemployment benefits is nonexistent under current precedent. The Social Security Act of 1935 (“the Act”) directs the states to establish unemployment insurance programs and grants them broad authority to set rules for eligibility for benefits. State programs only need to meet minimal criteria to obtain federal approval. Interpreting the Act as currently written, the Supreme Court in N.Y. Telephone Company v. N.Y. State Department of Labor, 440 U.S. 519, 541-42 (1979) held that eligibility for striking and locked-out workers is a matter of state law and payment of unemployment insurance to them is not preempted by the NLRA.
IV. Derogation
Laws that set minimum labor standards, like minimum wage and overtime laws, play an incredibly important role in setting a floor of basic protections for workers. These standards are designed to ensure some measure of economic security for all working people while also leveling the competitive playing field for employers. It is beyond dispute that nonunion workers, especially low-wage vulnerable workers, rely on having the labor-standards floor to prevent the worst forms of exploitation.
Questions arise, however, as to whether workers who have chosen to be represented by a union need the same floor beneath their negotiations. The term “derogation” refers to creating exceptions to government regulation of labor standards for workers covered by a collective bargaining agreement, thereby allowing workers to negotiate labor standards beneath legislated levels. The argument for derogation is twofold. First, application of those standards in the context of a represented workforce constrains the scope of bargaining. Second, employers may be less likely to fight union organizing if they believe they have more regulatory flexibility with a unionized workforce.
Courts have found that state or local statutes that allow for exceptions to basic labor standards for workers covered by collective bargaining agreements are not preempted. These statutes have been upheld because their purpose is not to encourage collective bargaining but to provide an alternative means of regulating employers. For example, in Fort Halifax Packing Co., Inc. v. Coyne, the Supreme Court held that although a mandatory severance pay statute could be a subject of bargaining, it was not preempted by the NLRA, as it did not interfere with the collective bargaining process.12 In another example, the Ninth Circuit upheld a California statute that permitted unionized mine workers to enter into collective bargaining agreements that waived the statutory prohibition on workdays over eight hours long.13
Areas in which derogation by state statute may be appropriate include state minimum wages above the federal minimum wage, overtime guarantees that kick in before 40 hours, paid leave mandates, and constraints on scheduling. At the municipal level, numerous living wage laws for government contractors have allowed for derogation. State and municipal statutes cannot allow for derogation of federal labor standards.
Innovative Minimum Standards Policy Tracker
- Irene Tung and Paul K. Sonn, Just Cause Job Protections: Building Racial Equity and Shifting the Power Balance between Workers and Employers, National Employment Law Project (Apr. 30, 2021), https://www.nelp.org/publication/just-cause-job-protections-building-racial-equity-and-shifting-the-power-balance-between-workers-and-employers/. ↩︎
- Metropolitan Life Ins. Co. v. Massachusetts., 471 U.S. 724, 754 (1985). ↩︎
- Metropolitan Life, 471 U.S. at 755. ↩︎
- Josh Eidelson, Most Americans Can Be Fired for No Reason at Any Time, But a New Law in New York Could Change That, Bloomberg Businessweek (June 21, 2021), https://www.bloomberg.com/news/features/2021-06-21/new-york-just-cause-law-is-about-to-make-workers-much-tougher-to-fire. ↩︎
- Julie Blust, Philadelphia Becomes The First City In The Nation To Pass Industrywide ‘Just Cause’ Legislation, SEIU 32BJ (May 17, 2019), https://www.seiu32bj.org/press-release/philadelphia-becomes-the-first-city-in-the-nation-to-pass-industrywide-just-cause-legislation/. ↩︎
- U.S. Department of Labor Wage and Hour, Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States, https://www.dol.gov/agencies/whd/agriculture/h2a/final-rule; see also 20 CFR § 655.122(n), at 89 Fed. Reg. at 34,061. ↩︎
- See Nathaniel Kazlow, Just Cause We Can: Ending At-Will Employment and Avoiding Preemption, 56 Colum. J.L. & Soc. Probs. 607 (2023). Cases that have upheld just cause or other similar laws setting minimum standards include R.I. Hosp. Ass’n v. City of Providence, 667 F.3d 17, 35 (1st Cir. 2011); Concerned Home Care Providers, Inc. v. Cuomo, 783 F.3d 77 (2d Cir. 2015); St. Thomas-St. John Hotel & Tourism Ass’n v. U.S. Virgin Islands, 218 F.3d 232 (3d Cir. 2000). ↩︎
- In addition, the Department of Labor protects workers in the H-2A temporary agricultural guestworker program from retaliation because they exercised their right to refrain from listening to employer speech related to their right to organize. See 20 CFR § 655.135(h)(2)(i), 89 Fed. Reg. at 34,010. ↩︎
- Laura Brown, Businesses Challenge State’s ‘Captive Audience’ Law, Finance & Commerce (Feb. 26, 2024), https://finance-commerce.com/2024/02/businesses-challenge-states-captive-audience-law/. ↩︎
- Jonathan J. Spitz, Richard F. Vitarelli, Richard I. Greenberg, Michael J. Moberg & Lorien E. Schoenstedt, Legislation Banning ‘Captive Audience’ Meetings Enacted in Minnesota, Awaiting Enactment in New York, Jackson Lewis (June 16, 2023), https://www.jacksonlewis.com/insights/legislation-banning-captive-audience-meetings-enacted-minnesota-awaiting-enactment-new-york. ↩︎
- Dept. of Labor Employment and Training Administration, Nonmonetary Eligibility, https://oui.doleta.gov/unemploy/pdf/uilawcompar/2022/nonmonetary.pdf. ↩︎
- Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1 (1987). ↩︎
- Viceroy Gold Corp. v. Aubry, 75 F.3d 482 (9th Cir. 1995). ↩︎
