Alan Grayson. (AP Photo/Evan Vucci)
In a Tuesday interview, Congressman Alan Grayson (D-FL) announced the introduction of a bill to dramatically expand the legal remedies available to non-union workers who are punished for workplace activism. “Retaliation in the workplace today when people exercise their right to organize is pervasive,” Grayson told The Nation, “and the law against it has become utterly impotent.”
Grayson’s bill has been referred to the Republican-controlled House Committee on Education and the Workforce, where it is virtually guaranteed to languish. “It may not pass today,” said Grayson. “It may not pass tomorrow. But it indicates the direction that we have to go in if we’re going to preserve the middle class in America.” A spokesperson for Congressman John Kline, the committee’s chairman, did not respond to a request for comment last night. The committee is scheduled to take up two GOP bills restricting union recognition tomorrow.
Retaliating against workers for engaging in protected forms of workplace collective action is already illegal under the seventy-eight-year-old National Labor Relations Act (Grayson noted that his bill “gives a broad and explicit definition” of the crime). But pro-labor advocates and academics have long argued that the law does too little to dissuade companies determined to squash organizing or suppress free speech. Communications Workers of America President Larry Cohen last year slammed existing US labor law as “a scam,” “garbage” and “a fucking lie.” Grayson’s new “Worker Anti-Retaliation Act,” which he introduced June 11 but has not previously announced, addresses several of the NLRA’s perceived weaknesses when it comes to punishing retaliation.
Whereas current law limits workers’ legal recourse for retaliation to the National Labor Relations Board—an agency whose process can take years to reinstate a fired worker—Grayson’s bill would separately guarantee most employees the right to sue their boss in civil court for retaliating, and the chance to seek an injunction to swiftly reverse the alleged retaliation. “The private right of action,” said Grayson, “means that the fact that a government bureaucrat is lazy or bored or not interested in your case,” or “hostile to workers in general,” would no longer “mean that you have no case. It means that you can take your case to court yourself.”
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Grayson would also give workers the option of bringing a civil suit directly against the person who carried out retaliation—rather than just the corporate entity they work for—and ban the company from paying that agent’s legal costs or fines. Grayson told The Nation that “when designing laws that involve corporate misconduct you often have to take special care to think through what it will actually take to significantly influence the corporation given the impossibility of incarceration.” Asked whether he foresaw the law being used to sue lower-level managers or higher-level executives, Grayson replied, “Anyone who carries out an anti-organizing campaign against workers who are exercising their lawful rights can and should be punished under the law.”
While the worst-case scenario for companies under the NLRA is usually just being required to reinstate a fired worker with back pay (after deducting whatever money the employee’s made at a different job in the meantime), Grayson’s bill—HR 2311—would have courts fine malefactors damages and back pay, plus attorney’s fees and triple damages, or “$1,000 per violation, per affected employee, per day.”
Grayson said that it was “too early to say” whether President Obama would back HR 2311, and that he had not yet begun discussing it with his colleagues, but that he expected support from labor unions, other members of Congress and outraged Americans in making the case for the bill. The United Food & Commercial Workers International Union, which is closely tied to the non-union retail workers’ group OUR Walmart, plans to soon announce its strong support.
As The Nation first reported, OUR Walmart has recently alleged a fresh and widespread wave of retaliation against its members: since Friday, the retail giant has allegedly disciplined at least thirty-five workers who this month went on strike; ten of those thirty-five were fired. That includes Lisa Lopez, a central Florida employee whom Grayson showed up to support during last November’s “Black Friday” strike. Walmart maintained Monday that the disciplinary actions “had everything to do with what was a violation of attendance policy and nothing to do with a specific protest.” But Grayson called Walmart “a lawless corporation, an unscrupulous corporation that consciously and systematically deprives its own workers of their rights,” and said that the question for the American public is, “How long are we going to put up with this?”
Citing “the same way that unfortunate tragedies like Newtown galvanized support for gun safety,” Grayson said that retaliation against workers for workplace activism is “almost pervasive and an integral part of so many people’s lives. So I think that in a situation like that Congress can’t help but notice it.”
HR 2311 follows the slow death of the Employee Free Choice Act, a union priority during President Obama’s first term that never received a floor vote when Democrats controlled both houses of Congress. While virtually guaranteed not to become law, the bill could offer unions an opportunity to draw public attention to the rash of reported retaliation in the US workplace—a task that activists have argued organized labor failed to pull off effectively during the EFCA debate.
Reached by e-mail, Aaron Albright, a spokesperson for Democrats on the House Committee on Education and the Workforce, said the bill “opens a timely discussion in light of repeated attempts by the right wing to shut down the NLRB.” Albright called the NLRB “the only place workers can go to seek justice when their right to organize is violated,” and warned that if Republicans succeed, “striking workers who were recently fired or disciplined by Walmart, for example, may have a right to reinstatement but no legal recourse to actually win their job back.”
Labor attorney Moshe Marvit, the co-author of the book Why Labor Organizing Should Be a Civil Right, praised Grayson’s bill for offering workers recourse to civil court, which he noted could offer a comparatively wide-ranging discovery process regarding management campaigns to crush organizing. Marvit, a fellow at the Century Foundation, added that exposing individual managers to legal risk for retaliation could make a major difference: “Even if the company can survive a legal attack, those individuals might not be willing to put themselves at risk.”
Kate Bronfenbrenner, a scholar of anti-union campaigns who directs labor education and research at Cornell, told The Nation that Grayson’s proposed right to sue “won’t be any good to low-wage workers who don’t have access to unions and workers’ centers” willing to pay to hire private attorneys. But she said its penalties could prove “more substantial” than the NLRB’s, which she compared to mere “parking tickets” for wealthy corporations.
While Marvit said that Grayson’s bill is “not going to pass in the house anytime soon,” he noted the example of the proposed Employment Non-Discrimination Act to ban anti-LGBT discrimination, which has been introduced in nearly every Congress since 1994 and has gained traction over time. But Bronfenbrenner warned that, while backing a bill like Grayson’s may be a sensible way for the UFCW to highlight Walmart retaliation, “what I fear most is the labor movement getting on board a labor law strategy and not doing the work of organizing.”
“The right to organize is the only practical tool that ordinary people have to confront the greed and rapacity of the bosses, of the people who are in charge,” said Grayson. “And I think that if we don’t protect these rights, then you could kiss middle-class America goodbye.”
Five recently fired Walmart employees were arrested at Yahoo! headquarters, where they were protesting againt CEO Marissa Mayer, a Walmart board member.
