Labor and employment Law
The new industrial age and the resulting growth of the U.S. economy in the late nineteenth and early twentieth century’s affected nearly everyone in America. Industrial combination and concentration became the norm, with huge trusts appearing in almost every industry. The workplace was changing as machines became common and the demand for unskilled workers brought new groups into the workforce, including immigrants, women, and children. By 1920, nearly 20 percent of all manufacturing workers were women, and 13 percent of all textile workers were younger than 16 years old. The abundance of laborers available for these unskilled factory jobs made individual workers expendable and led to decreased wages. Most industrial laborers worked at least a ten-hour day, yet earned 20 to 40 percent less than the minimum wage necessary for a decent life. Class division between the corporate giants and laborers became increasingly apparent throughout America. Little of the fortune that the industrial growth of the nation had generated went to the workers. In 1900, it was estimated that ten percent of Americans owned over three-fourths of the nation’s wealth. Many feared that the United States was on the brink of a disastrous class war. Health and safety conditions in the workplace were poor and workers had limited recourse. It was not until the 1930s that the federal government would become actively involved in regulating labor. State and local authorities were usually more responsive to the interests of wealthy industrialists than the needs of laborers. The social transformation brought on by the new industrial age affected every aspect of life in America. With women toiling alongside men, marriages were often delayed, resulting in smaller families. It was not uncommon for a single company to own an entire town. The company could increase prices at the local grocery store and give laborers easy credit, keeping workers in debt and stuck working at the same low-paying job. The crowded, dirty tenements in these towns led to high disease and death rates. The workplace became regimented and impersonal. Any time workers would protest the working conditions and blacklist the uncooperative workers and replace them with workers who would work for lower pay and less if any benefits. Individual workers were not able to battle against the corporate monster. The process of industrialization altered the nation’s economy and social structure, but in doing so it provoked the emergence of an organized labor movement.
The American system of employment regulation is a two track system. It provides the instrument for collective bargaining and other forms of employee collective action, while “employment law” sets minimal employment standards for all employees. Employment laws set minimum wages, establish safety and health standards, provide assistance, require unemployment insurance, compensate industrial injuries, mandate child care and medical leave, and establish other minimal terms of employment. Because the employment law standards are meant to be grounds, they do not prevent the need for workers to bargain, whether individually or collectively, for employment standards above the set minimum. Hence the two-track system of regulation reflects the American labor law’s commitment to settling distributional issues through bargaining and removing such issues from the political process. While such a two way approach may have been justified in an era of stable industrial production in which strong centralized unions and strong management which each were committed to peace and stability, it does not address the needs of the working population today. The basic framework of today’s labor and employment law was tailored to the job structures of that era.
An extensive collection of labor laws and regulations protects workers in the labor market and the workplace. From the National Labor Relations Act and Social Security Act of 1935 to the Occupational Safety and Health Act of 1970 and the Family Medical Leave Act of 1993, labor unions have been instrumental in securing labor legislation and standards. However, beyond their role in initiating and advocating enactment of these laws and regulations, unions have also played an important role in enforcing workplace regulations. Unions have provided labor protections for their members in three important ways: 1) they have been a voice for workers in identifying where laws and regulations are needed, and have been influential in getting these laws enacted; 2) they have provided information to members about workers’ rights and available programs; and 3) they have encouraged their members to exercise workplace rights and participate in programs by reducing fear of employer retribution, helping members navigate the necessary procedures, and facilitating the handling of workers’ rights disputes (Weil 2003; Freeman and Medoff 1984; Freeman and Rogers 1999).
Unions have played a prominent role in the enactment of a broad range of labor laws and regulations covering areas as diverse as overtime pay, minimum wage, the treatment of immigrant workers, health and retirement coverage, civil rights, unemployment insurance and workers’ compensation, and leave for care of newborns and sick family members. Common to all of these rules is a desire to provide protections for workers either by regulating the behavior of employers or by giving workers access to certain benefits in times of need (Weil 2003; Davis 1986; Amberg 1998). Over the years, these rules have become mainstays of the American workplace experience, constituting expressions of cherished public values (Gottesman 1991; Freeman and Medoff 1984).
Less well recognized perhaps, is the important role that unions play in ensuring that labor protections are not just “paper promises” at the workplace. Government agencies charged with the enforcement of regulations cannot monitor every workplace nor automate the issuance of insurance claims resulting from unemployment or injury. In practice, the effectiveness of the implementation of labor protections depends on the worker’s decision to act. This is done either by reporting an abuse or filing a claim. Unions have been crucial in this aspect by giving workers the relevant information about their rights and the necessary procedures, but also by facilitating action by limiting employer reprisals, correcting disinformation, aggregating multiple claims, providing resources to make a claim, and negotiating solutions to disputes on behalf of workers (Freeman and Rogers 1999; Weil 2003; Hirsch, et al. 1997).
National Labor Relations Board NLRB
The National Labor Relations Board (NLRB) is an charged with conducting for representation and with investigating and remedying. Unfair labor practices may involve union-related situations or instances of . The NLRB is governed by a five-person board and a , all of whom are appointed by the with the of the . Board members are appointed to five-year terms and the General Counsel is appointed to a four-year term. The General Counsel acts as a prosecutor and the Board acts as an judicial body from decisions of administrative law judgements.
The labor movement in the United States grew out of the need to protect the common interest of workers. For those in the industrial sector, organized labor unions fought for better wages, reasonable hours and safer working conditions. The labor movement led efforts to stop child labor, give health benefits and provide aid to workers who were injured or retired. The ideas they introduced, such as protection for workers, became part of our American culture and an early need for survival. Prior to 1935, American workers had the right to become trade union members and to withhold their labor during industrial disputes, but employers also had the right to fire workers because they had enrolled in unions or had taken part in strikes. During economic hard times it was more difficult for an employee to find other work than it was for an employer to hire another employee. Thus, workers were hesitant to join trade unions, and by 1933 just 10 percent of America's workforce was unionized. In 1933, Senator Robert F. Wagner (NY-D) submitted a bill before Congress that would help prohibit unfair labor practices by employers. With the backing of Secretary of Labor , Wagner's measure became the National Labor Relations Act (NRLA), informally known as the Wagner Act. It had been called the law that most affected the relationship between the federal government and private enterprise. Then, in the summer of 1935, during a period of dramatic reform initiatives that came to be called the Second Hundred Days, Roosevelt suddenly announced his support for the Wagner-Connery Labor Relations Act. Despite conservative opposition, the bill passed both houses easily and was signed on July 5, 1935.
Congress enacted the NLRA on July 5, 1935. Before the law, employers had freedom to spy upon, question, punish, blacklist, and fire union members. In the 1930s workers began to organize in large numbers. A great wave of work stoppages took place in 1933 and 1934 which included general strikes and factory occupations by workers. Hostile battles erupted between workers bent on organizing unions, and the police and hired security squads backing the interests of factory owners who hated unionizing. Some historians maintain that Congress enacted the NLRA primarily to help stave off even more serious potentially revolutionary labor unrest. The NLRB, established under the Wagner Act, took an active role in supporting and extending labor's right to organize during the late . In earlier years, the Supreme Court had struck down a succession of laws; its upholding of the Wagner Act in NLRB v. Jones & Laughlin Steel Corp. (1937) marked the beginning of a series of decisions favorable to New Deal reforms. The NLRB’s role began to change after . The primary functions of the NLRB are to decide, when petitioned by employees, if an appropriate bargaining unit of employees exists for collective bargaining; to determine by secret-ballot elections (conducted by the NLRB) whether the employees in a business or industry wish to be represented by labor unions; and to prevent or correct unfair labor practices by employers and unions. Appointed by the U.S. president, the five board members and the general counsel serve different purposes. The board is charged with hearing labor disputes and resolving them through quasi-judicial proceedings. The NLRB’s general counsel investigates and prosecutes complaints and also oversees cases in the NLRB’s field offices. The NLRB has no independent power to enforce its orders but may seek enforcement through a U.S. court of appeals. The board may not act on its own motion; in all cases charges and representation petitions must be initiated by employers, individuals, or unions. Over time, the decisions made by the NLRB have done much to shape American labor practices.
Generations in the workforce
Different generations have been in the workforce since the beginning of time. In simpler times, when simpler technologies were available, this may have meant that three workers in a field were three generations of the same family. Each may have had his or her own distinctive traits, but their differences were probably not as magnified as they are in our current fragmented, global, and highly technological world.
Pre-Baby Boomer – Born before 1943
Baby Boomer (Boomers) – Born between 1943 and 1960
Generation X (Gen-Xers) – Born between 1961 and 1981
Millennials – Born after 1982
Per the U.S. Census, three of the four current generations share a fairly equal amount of the overall population, with the pool of Pre-Boomers shrinking as they age. The most significant demographic impact on the workplace during the next decade will be the aging of the Boomers. The National Association of Manufacturers estimates that as Boomers retire and the economy grows, the United States will have 7 million more jobs than workers by 2010 (Warner, 2004). The U.S. Bureau of Labor Statistics projects that by 2008, there will be a shortfall of 3 million workers in executive, administrative, and managerial occupations, caused partially by Boomers’ retirements. This effect will be even more dramatic in the decade following 2008 when all but the youngest of the Boomers will be of retirement age (Dohm, 2000).
Three generations—Pre-Boomers, Boomers, and Gen-Xers—are present in the workplace today. A fourth, the Millennials, is just beginning to enter it. Each generation brings different characteristics to the job. A general understanding of these traits can go a long way toward improving interaction between them. These four groups share some traditional work values, but differ on the role of a manager, issues of loyalty, technical competence, and how much time must be spent on the job to define a good day’s work. They also differ in terms of their personal lifestyles and social values (Kennedy, 2004). A Boomer willingly works whatever hours are necessary to finish the job, and anticipates making more money for this willingness, whereas the Gen-Xer values time off. One theory suggests that this difference results from the time Gen-Xers spent as latchkey children while their Pre-Boomer and Boomer parents worked long hours. Gen-Xers saw the resulting toll this took on the marriages and dynamics of their immediate families, and are reluctant to place themselves in the same situation (Green, 2001). Another key area of difference is how each of these groups view working with others. Pre-Boomers and Boomers value teamwork and want others to work with them. Gen-Xers prefer to work alone, which is reflected in their embrace of entrepreneurship programs in business schools, and of free agency in the workplace over loyal corporatism (Green, 2001). Millennials, raised on “Barney and Friends” and collaborative learning, have developed team instincts and tight peer bonds Getting these disparate styles to mesh means that not all team members will carry the same load and that some might work best alone; others will flourish within a subset of the larger team. In the next 10 to 15 years, Pre-Boomers and the bulk of the Boomers will retire and leave the workplace. Boomers make up 52 percent of the workforce, with many in managerial and executive positions. Not only will companies have to scramble to replace the missing bodies as these professionals retire, they will struggle to replace the cumulative knowledge of these individuals. They are also strong union supporters because of the time period and situations they lived through.
For many Boomers, remaining in the workforce will be a necessity, as they will not have adequately financially prepared for the long years of retirement afforded by their healthy lifestyles. Because Americans, particularly Boomers, are healthier today, they will most likely live longer than their parents and grandparents. For Boomers, the prospect of a longer life spent watching day-time soap operas is not the retirement they envision. Boomers also lived during a time when union representation was needed. No labor laws exist and the pro-company mentality was in full bloom. This generation are big supporters and rightfully so; the sacrifices they made in the beginning and fights they fought paved the way for the workforce today.
Compared to the Boomers, Gen-Xers face different dilemmas. Often they resent the Boomers, whom they view as arrogant, self-absorbed, and responsible for the drug culture, the deficit, environmental debacles, and bad schools (Green, 2001). Brought up in uncertain times, frequently by single parents, Gen-Xers tend to be practical, independent, and successful. Following the Boomers, Gen-Xers are less optimistic and see fewer opportunities for job promotions. They wonder if the Social Security Administration will go broke before they can collect their share. Because Boomers are better spenders than savers, many Gen-Xers believe later generations will inherit little accumulated wealth from their parents (Green, 2001). Gen-X is a generation often misunderstood. It takes its name from Douglas Copland’s 1991 novel, “Generation X,” a tale of 20-somethings searching for meaning in their lives. Contrary to stereotype, Gen-Xers are anything but lazy and unsuccessful. They work hard, are careful financial planners, and compared to Boomers, save for a future retirement they doubt will be financed by a company pension or Social Security. As they have watched their parents get laid off after years of dedicated service, they do not expect employer loyalty and see no problem changing jobs to advance professionally
Like the Millennials that follow them, Gen-Xers have grown up in a rapidly diversifying America. They are open-minded about the differences between genders and among racial, ethnic, and religious groups. Often the product of a broken or single-parent home, they are frequently independent and value the concept of family. They wait longer to marry and have children. The median age of women at the time of their first marriage increased from 20 in 1960 to 24 in 1990. For men the median age increased from 23 to 26 during the same time frame (Green, 2001).
As Boomers retire or phase out of management-level positions, Gen-Xers will step in to take their places. As they do, respecting some of their dominant characteristics will ease the transition. For example, Gen-Xers do not easily tolerate corporate jargon, buzzwords, or obscure clichés. Their “top work complaints include (a) management that ignores ideas from employees, (b) lack of consistent feedback or recognition when it’s due, and (c) ‘do it because I said so’ management” (O’Bannon, 2001, p. 98). It is important to clearly state your objectives when communicating with them; O’Bannon (2001) recommends “FAST Feedback: Frequent, Accurate, Specific, and Timely” (p. 105). Finally, Generation X deeply appreciates the need for finding a healthy work-life balance. They realize much to the chagrin of hard-charging Boomers that you do not need to spend extra hours at the office to get ahead. Furthermore, work should not be an ongoing grind; it is OK to have some fun. By striving to be highly technically competent, they know that if their work environment becomes less than desirable, their skills and knowledge will give them many opportunities to find a job more compatible with their lifestyles.
Millennials thrive on teamwork, political action instead of apathy, and technology as a way to improve the community. Most will have a continuing close relationship with their parents, will be busy with extracurricular and community activities, and will continue to focus on performance, much as they did on grades while in school (Howe & Strauss, 2003). Conventionally minded and respectful of norms and institutions, they spring from the most ethnically diverse background ever witnessed and yet think less of racial identity than their predecessors.
Most professionals in a university setting are familiar with the traits of Millennials. We see them in action around us, as students, part-time employees, as the customers we serve on a daily basis. Specifically, though, some millennial traits will require adjustments in how we schedule, assign, oversee, and expect work to be accomplished. Highly selective and sophisticated consumers, Millennials as students expect to be able to choose the kind of education they can buy, as well as what, where, and how they will learn it (Carlson, 2005). This selectivity will carry over to the workplace. Millennials list among their most important job components: work that helps others, allows them to impact the world surrounding them with idealistic and committed co-workers, and requires creativity. Nearly three-fourths say how they spend their time is more important than how much money they make… less important to millennials is working for a large corporation or global company or having a high-pressure work environment. Another challenge is many Millennials’ short attention spans, the result of the information barrage they have faced for most of their lives. As rigorous attention to the proper use of language has been de-emphasized finds that Millennials may be whizzes on communication devices, but may lack writing and personal communication skills. As many colleges have been forced to accommodate insufficient reading and writing skills through remedial coursework, workplaces may also need to provide training in the basic elements of business and professional correspondence. The millennials for the most part are not known for sticking around; they tend to stay at a place of employment for nearly five years before leaving and ultimately seeking employment in another company that meets their newest set of demands related to the fast paced world they live in.
Each of the represented generations play a major role on how unions will be in the current and future but with changing times and ideals how will this affect unions moving forward. They contribute or take away depending on which end of the spectrum they are a part of. The generations have and will always shape the fabric of America and dictate how the use and popularity of unions.
Conclusion
For the past forty years there has been a steady decline in both union membership and influence. There are several reasons for such a decline, the first having to do with employers keeping their businesses union-free. Some were active in their opposition and even hired consultants to devise legal strategies to combat unions. Other employers put workers on the management team by appointing them to the board of directors or establishing profit-sharing plans to reward employees. The second reason for union decline is that new additions to the labor force have traditionally had little loyalty to organized labor. Because more and more women and teenagers are working and their incomes tend to be a family's second income, they have a tendency towards accepting lower wages, thus defeating the purpose of organized labor. The third and possibly the most important reason for the decline in unions is that they are victims of their own success. Unions raised their wages substantially above the wages paid to nonunion workers. Therefore, many union-made products have become so expensive that sales were lost to less expensive foreign competitors and nonunion producers. This resulted in companies having to cut back on production, which caused some workers to lose their jobs, and hence, unions some of their members. Also, the recent shift in this country towards technology and service has made our economy less reliant in the types of industrial jobs that tended to be union strongholds. Today's worker tends to more highly educated and tends to the professional, white collar class. All of these have conspired to decrease union membership. So, do labor unions have a future in the US? Most analysts answer no. The downward trend in private sector union density shows no sign of abating, much less of turning around. Unions have failed to get the Congress to enact labor law reforms that would make organizing easier. Union leaders have put organizing at the top of the union agenda, but without any notable organizing successes. Public sector unions face attacks on collective bargaining amidst fiscal austerity that threatens their ability to function. But workplaces invariably create collective interests, and collective interests invariably produce collective actions. In years past unions have arisen from the grave, confounding expert analysts and surprising their own leaders as well as corporations and government. Unions grow in sudden sharp spurts in economic crises where workers see them as the only viable voice defending worker interests. Could the crisis created by the 2008 financial disaster and the ensuing jobless recovery and fiscal deficit problems change the union situation as the Great Depression did in the past? It is possible, and not just in the sense that “anything that is not ruled out by the laws of science is possible”.
What we know from past union growth spurts is that to meet the needs of workers in a crisis unions have to reinvent their structures, strategies, and tactics. If unions have a future in the US, they will not be your parents' or grandparents' union movement but one that fits today's Internet-based society, global economy, and financial world. Unions are searching for new forms to carry out their historic function of representing the interests of workers. If they find one that succeeds, they have the potential to rebuild themselves as a vibrant social force. If they fail, employees outside of the union movement, social entrepreneurs or even managers concerned about worker well-being, may find a way to rebuild labor's voice in the US economy. How might such a future employee organization/union movement differ from the unions of today? One possibility is that it would rely less on collective bargaining and more. Unions have played a significant role in the US workforce but what will they look like in the future.
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