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I just finished reading James Chamberlain’s new book Undoing Work, Rethinking Community: A Critique of the Social Function of Work (Cornell University Press). It’s an ambitious theoretical work that raises fundamental issues regarding not only the meaning of work but also the construction of society. But let me first back up. My own book, The Thought of Work, is intended partly as a statement of the diverse ways in which work is important—materially, psychologically, sociologically, and so forth. Behind this is an assumed default in which work’s diverse values are not fully appreciated, especially when it is reduced largely to an income-generating activity. That is, capitalism and neoliberalism devalue work by prioritizing the monetary aspects and reducing work to being seen as simply a commodity.

Undoing Work comes from a seemingly-opposite perspective—that work is too central in today’s neoliberal, capitalist societies.  So whereas I want to raise the value of work, Undoing Work wants to, well, undo it. Why? Because neoliberal social norms require an individual to be working full-time for pay in order to be fully welcomed and included as a citizen—normatively if not in fact. But this raises at least two problems. One, the highly-unequal nature of capitalism limits the opportunities for full-time, paid work to a privileged set, thus excluding from full citizenship many who have traditionally been marginalized, whether on the basis of race, ethnicity, gender, class, or other bases. Two, the material and social pressures for full-time salaried or waged work limit human freedom by coercing people into spending more time at work than they would choose if they were truly free.

Chamberlain strongly argues that at a fundamental level, these norms are rooted in how society is constructed. That is, Undoing Work argues that neoliberal, capitalist societies are seen as collections of individuals who form societies (communities) because they benefit from exchanging their work. So the twin features of individualism and work lie at the core of a capitalist society. Through the Marxist lens that grounds Undoing Work, this is highly problematic because capitalism always degrades work and because individualism always leads to hierarchy and exclusion. So how can individuals—or maybe I should say, members of communities—be free to follow their self-determined rather than neoliberal needs and wants?

A popular proposal these days is for a universal basic income, the (simplified) theory being that reducing people’s dependency on work for subsistence will allow them to choose from a broader set of life activities. An interesting contribution of Undoing Workis showing how the thinking that lies behind many of the proposals for universal basic income do not break with traditional views of work and society to the extent needed to really bring about a large-scale change in the centrality of work. Which brings Chamberlain to the heart of his argument: for humans to truly be free, the basis of society needs to be seen as something other than work. So it’s not just about rethinking work, it’s about rethinking the definition of community. Maybe it’s my own lack of sophistication, but unfortunately, after reading Undoing WorkI’m left with a much greater appreciation of the nature of this problem than for the author’s solutions. And by this, I don’t just mean practical solutions—which the author admits are challenging given that he believes this entails a rejection of capitalism; rather, I’m referring to the conceptual solution. Maybe I’ve been studying work for too long, but I can’t figure out what it would mean to undo work.

Undoing Work is clear (at least towards the end), that work would remain important (otherwise I think we’d really be getting into utopian territory), but what would seem to be left of value are psychological rewards and caring. This strikes me as a movement towards the more individual aspects of work—which make sense in some respects because it’s the social aspects of work in terms of exclusion and lack of solidarity that are at the root of the problem presented in Undoing Work. But on the other hand, this seems contradictory with the overall direction advocated—that is, this movement toward individualism does not seem consistent with the overall goal of trying to reconstitute society on basis of something other than a collection of individuals.

So where do we go from here? I think Professor Chamberlain would agree with me that work is too important to be left in the hands of neoliberal thinkers or propagandists. But dedicated readers of my blog will know that I’m a pluralist scholar rather than a critical, heterodox (including Marxism) scholar. So imbalances of labor market power are important, but can be alleviated. This requires continued attention to the material institutions that shape work—laws, unions, and the like—as well as the normative institutions. Going back to The Thought of Work, my goal is that if society can more fully recognize the ways in which work is important—including the dimensions that Undoing Work rightly recognize, like inclusion, citizenship, and solidarity—then we can design institutions that will better support inclusion, citizenship, and solidarity. And empowered individuals can pursue something that comes closer to their desired forms or conditions of work and do so with dignity.

But as I admit in my own writings, this is challenging because we don’t want to elevate work to such a level of importance that it is the only way of creating an individual and social identity. I think Undoing Work is premised on that ship having sailed. I maintain that somehow it’s still possible. But we can both agree that these issues are too important to not discuss as scholars and a society.  

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This past weekend I was at an ILR Review-sponsored conference “Toward New Theories in Employment Relations.” A predictable theme was the gig economy. But more interesting were repeated themes of the importance of ideas (whether from the bottom up rooted in individual cognition (a paper I presented) or from the top down in the form of contested ideologies) and the importance of identity. Identity politics, of course, are everywhere today, even in superhero movies (Black Panther).

This presents a particular challenge for employment relations because traditional scholarship has emphasized material interests rather than identity needs, and traditional institutions (especially labor unions) have been organized around materialistic class interests rather than (non-class) identities. That is, workers are portrayed simply as workers, not women, Latinxs, and the like. 

Or at least that’s how the traditional perspective is now painted. In my view, this simplification of the past is more accurate for industrial relations scholarship than practice.

That is, scholarship has seen workers as generic in theory, but in practice it's a different story: real workers and institutions have been anything but blind to identity issues. Indeed, it would have been better if they were. Go back 100+ years and many AFL craft unions were discriminatory and openly hostile toward anyone except white men. The Pullman Company trained African American workers for skilled positions to keep the skilled labor force divided by racial tension. Worker solidarity across occupations was also weakened through racial and gender segregation—on Pullman cars, for example, conductors were always white and porters were always black; men cleaned the exterior of the railroad cars, women the interior. So when appreciating the importance of identity in today’s worker centers—as just one example—we should not overlook the importance of racial identity in the struggles and victories of the Brotherhood of Sleeping Car Porters all the way back in the 1920s led by A. Philip Randolph and others (this is captured by the movie “10,000 Black Men Named George”).

This is not to deny that identity has become both more central and more complex in contemporary society—and therefore in contemporary employment relations practice. So continuing to deepen the theorizing and evidence around identity issues in employment relations is needed. But I think this will be most productive if we see this as building on past practice, and even on past scholarship, rather than as something that is seen as a break from the past. 

OK, I will admit that I have self-interested reasons for believing this. In particular, in a recent blog post I (selfishly) argued that my trilogy of efficiency, equity, and voice continues to be a powerful way to capture the key objectives of the employment relationship. Some might see these as more materialistic and as ignoring identity issues. Indeed, in my own presentation of efficiency, equity, and voice I have not explicitly recognized identity concerns. But I assert that the framework of efficiency, equity, and voice is flexible enough to include shifting conceptualizations of these interests. 

Moreover, while identity is different from interests, I think the way that identity concerns are realized and satisfied in the employment relationship is through (a) being treated in desired ways consistent with one’s identity demands, and (b) being able to express yourself in ways consistent with your desired identity. The first of these falls under the category of equity, the second under the category of voice. Put differently, in the context of the employment relations, violations of individuals' and groups' identity needs by discriminating against certain groups and by repressing expressions of that identity are violations of equity and voice in the employment relationship. 

Indeed, both equity and voice as key objectives of the employment relationship stem from the essential qualities of being human, which, in turn, means that workers as humans are entitled to dignity and self-determination. Identity is an essential part of dignity and self-determination, and hence of equity and voice. So even in this era dominated by identity politics and identity theorizing, the key goals of the employment relationship remain efficiency, equity, and voice. In the future, I will try to do a better job of explicitly noting the identity aspects of equity and voice.

So let’s continue to seek ways to deepen our understandings of identity within employment relations theorizing and practice. But personally I think it’s most productive to do so in ways that build on rather than reject where we’ve come from. And that preserves my own desired sense of identity…

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Sinclair Broadcasting Group has recently been forcing news anchors at its stations across the country to broadcast statements that echo President Trump’s attacks on the news media as propagating “fake news.” These anchors have then been criticized for following along rather than quitting. But they signed employment contracts in which they can be assessed sizable monetary penalties for quitting, and they also signed non-compete agreements preventing them from working at another TV or radio station for six months. Coincidentally, last week, Professor Evan Starr visited my department to present his research on non-compete agreements in the U.S. labor force. Among many important findings are these: the use of non-competes and their effects on outcomes are unrelated to the extent to which non-compete agreements are legally enforceable in each worker’s state. Moreover, a third of non-compete agreements are forced on workers after they have already accepted the job, and less than 20 percent consulting family, friends, or a lawyer before signing it. What emerges from this, among other things, is a picture of workers who don’t really understand the legal parameters under which they are agreeing to work.

The economists in the audience had a hard time accepting this picture. Economists are trained to think that rational agents make informed choices based on good information. But there is a lot of evidence that workers don’t have great information about their own employment conditions. Two years after the Family and Medical Leave Act (FMLA) was enacted, not even 50% of nonunion hourly workers had heard of it and barely one-third thought they were eligible (Budd and Brey, “Unions and Family Leave: Early Experience under the Family and Medical Leave Act,” Labor Studies Journal, 2003). In Britain, I’ve found that it’s common for two-thirds of workers to not know that some types of employer-provided family-friendly policies are available to them (Budd and Mumford, “Family-Friendly Work Practices in Britain: Availability and Perceived Accessibility,” Human Resource Management, 2006). In a survey of U.S. companies emphasizing “shared capitalism,” 20-25% of employees’ responses to questions about whether they were covered by profit-sharing, gainsharing, or individual incentive plans didn’t match what their employer reported (Budd, “Does Employee Ignorance Undermine Shared Capitalism?” in Shared Capitalism at Work: Employee Ownership, Profit and Gain Sharing, and Broad-Based Stock Options, 2010).

You can try out your own knowledge. Consider the following scenario: 

An employee (in the United States) is accused of dishonesty. The supervisor knows that this employee is not dishonest but fires him anyway because she dislikes the employee personally. The employee’s job performance has been satisfactory.

Is this termination legal or illegal? Did you say "illegal"? If you did, you're not alone, but you're WRONG. Except for a minority of workers (those covered by a union contract with unjust dismissal protections or similar civil service protections, or those working in Montana where this is an unjust dismissal law), this termination would be legal because of employment-at-will. But Pauline Kim found that over 90% people think this is illegal (“Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protection in an At-Will World,” Cornell Law Review, 1997). Other research also finds high rates of employee ignorance about workplace law violations and how to remedy them (e.g., Alexander and Prasad, “Bottom-Up Workplace Law Enforcement: An Empirical Analysis,” Indiana Law Journal, 2014).

Why is this lack of understanding such a problem? Because our laissez-faire labor market is premised on fully informed workers making wise choices such that the employment relationship is an equal one among consenting parties. When workers lack a true understanding of what they are signing up for, then the employment relationship looks more like an unequal one in which workers are disadvantaged, if not exploited. Steve Befort and I have therefore argued that U.S. employers should be required to provide a written statement to all employees disclosing all terms and conditions of employment, including being subject to employment-at-will (Befort and Budd, Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, 2009). By itself, this might not change the actual terms and conditions of employment, but it would at least paint a truer picture of what workers are signing up for. 

It must also be said that another pictures emerges from the Sinclair Broadcasting mandate and from research on non-compete agreements--namely, workers lacking options which would allow them to refuse to sign these contracts. Fighting the myth that workers know what they are signing up for and creating ways to facilitate a better understanding of the true nature of the employment relationship probably won’t solve this imbalance, but it’s a good place to start.

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Looking back on the now-defunct (or hibernating) University of Minnesota faculty organizing drive, it’s striking the number of things that were said that implied that certain good or bad outcomes were inevitable. From the vantage point of someone who studies and teaches about labor relations, I only see one thing as inevitable if any group of employees vote in favor of unionization—namely, representatives of the business and of the employees will be obligated to bargain in good faith over terms and conditions of employment. That’s it. Everything else is up to numerous participants in the process—in the University of Minnesota case, this would include faculty, deans, a president, regents, union leaders, and others; in other cases this could include CEOs, other corporate leaders and supervisors, or in the public sector, governors, mayors, school board members, etc.

Let’s consider some things that were said during the University of Minnesota faculty (UMF) organizing drive that implied something was inevitable:

A lengthy process will continue to drag on. Yes, union organizing drives are typically lengthy affairs. The UMF organizing drive started back to 2014, and the union filed for an election in January 2016. The parties disagreed over the definition of the bargaining unit (in particular, should contract faculty be together in the same unit as tenured and tenure-track faculty), and the state Bureau of Mediation Services (BMS) finally issued a ruling in September 2016. The following month, the University appealed this ruling to the Minnesota Court of Appeals, which then took a year to overrule the BMS ruling. Shortly afterwards (October 2017), the union withdrew the petition seeking an election. So after three years, the drive was formally over and an election was never even held.

So yes, organizing drives are often lengthy affairs. But does a drive have to drag on? Is this inevitable? No. The ball is essentially in the employer’s court. In the UMF case, an election could have been scheduled quickly if the university had agreed to the definition proposed by the union. Employers like the university may feel that they have good reasons for challenging and appealing the unit determination process. But then administrators or corporate leaders need to recognize that they are making the choice to lengthen the process. [As a footnote, in the UMF case, we also have the Minnesota state legislature from several decades ago to thank for unnecessarily limiting flexibility and creating additional legal controversy by oddly trying to write the bargaining units into state law.] Bottom line: a lengthy process is likely, but it’s a choice, not an inevitability.

A rigid, one-size-fits-all collective bargaining agreement will be negotiated. It is common to stereotypically associate labor unions with rigid contracts that spell out specific outcomes in great detail. In the UMF case, this translated into a fear that unionization would take autonomy away from colleges or departments and mandate one-size-fits-all compensation structures, evaluation procedures, and the like. This certainly could happen. But it’s not inevitable. Professional athletes and Hollywood movie stars are represented by unions, and have collective bargaining agreements that allow for individual variation in compensation and other terms. Policies rather than outcomes could certainly be negotiated that empowered employees while allowing colleges to tailor practices and outcomes to their unique cultures, market conditions, and priorities. It all depends on who gets involved on both sides of the table and the choices they make. Bottom line: rigid collective bargaining agreements are possible, but not inevitable.

 Everyone will have to pay union dues. In the United States, if a union is voted in, it is true that it must represent everyone, and if negotiated, a collective bargaining agreement must apply to everyone. So individuals can’t opt out of being covered. But can they opt out of paying dues? In right-to-work states, they can. In the UMF case, Minnesota is a fair share state which means that unions are allowed to collect a fair share fee to cover the cost of representation, not to exceed 85 percent of regular dues. It’s likely that the Supreme Court will rule that this is unconstitutional and that no public sector employee can be forced to pay even a fair share fee (Janus v. AFSCME). In the meantime, it is true that public sector employees in Minnesota can be forced to pay at least the fair share fee, and the same is true to private and public sector employees in other non-right-to-work states. But a union does not have to force this issue; rather it’s something that is negotiated into contracts. In reality, unions likely do prioritize this (after all, they have expenses representing all workers). But once again, this is a choice. Bottom line: mandatory dues requirements are highly likely in non-right-to-work states or sectors, but are not inevitable.

Better off employees and colleges will lose out to worse off employees and colleges. Unions commonly try to benefit the worst off. After all, that’s what social justice is about. But whether this comes at the expense at employees and colleges who are currently better off depends on where the resources come from. It typically seems that university budgets are a zero sum game. If that’s accurate and unchangeable, then winning greater gains for the worse off will likely represent a redistribution away from the better off. But if new resources are created (for example, by stronger lobbying at the legislature) or found elsewhere (for example, administrative expenses), then it’s this doesn’t have to be a zero sum gain. Moreover, the extent to which this is a priority in the union, and how it is pursued, depends on who gets involved and how the agenda is shaped. Similar dynamics occur in any heterogeneous bargaining unit (for example, skilled crafts and assembly line workers; RNs and LPNs; etc.). Bottom line: uncertain.

The best faculty (workers) will leave and it will be harder to recruit new faculty (workers). There isn’t any direct evidence on this. If the faculty unionize and the relationship becomes adversarial, and rigid, one-size-fits-all policies and high levels of redistribution are negotiated, then yes, the university could become less attractive to certain faculty (and more attractive to those who have less power otherwise). If the relationship is productive and things are negotiated that further support and empower faculty in flexible ways, then unionization might be attractive to some people and a non-issue for others. There are many things that determine whether a job is attractive. Bottom line: Possible, but certainly not inevitable.

In conclusion, there is no doubt that there is much at stake in any organizing drive. Unionization could possibly transform important policies, procedures, and relationships. It’s certainly reasonable to debate whether these changes would be for the good, or not. But it’s better to debate them in the context of what might happen and by recognizing that this depends on the choices that many people will make. Not much is inevitable.

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Earlier this month, an Australian colleague (Rae Cooper) tweeted that Tony Dundon’s AIRAANZ keynote presentation made the point that the “war for talent” narrative is macho and narcissistic, and undermines collaborative employment strategies. I agree. In fact, there are many war metaphorsused in business: in addition to the “war for talent,” we can see references to competitors as the enemy, strategies as plans of attack, cash as a war chest, competition as a battle (“capture market share”), sometimes even employees as troops (“rally the troops”). All of these portray business as focused on beating the competition rather than producing an excellent product or service and make it legitimate to do this by any means necessary. War metaphors make it seem necessary for business to adopt hierarchical, authoritarian, military-like chains of command. All of these should be rejected. Business should be viewed as focused on  excellent products and services, not winning. Business requires cooperation, shared interests, and agreed-upon rules of conduct, not war.

But it’s not just war metaphors that are problematic. Here are some other popular metaphors used in business, all of which should be rejected and discarded:
  • “It’s a Jungle Out There”: Business is viewed as uncivilized, lacking rules, and dominated by a killer instinct. This survival of the fittest mentality justifies and even promotes selfish behavior. But to the contrary, and as noted above...business requires cooperation, shared interests, and agreed-upon rules of conduct. Inside and outside of organizations, humans need to be members of communities, not atomistic, isolated individuals.
  • Machine Metaphors: Employees as cogs, corporations as machines, knowledge as input, rest periods as downtime. These narratives reduce workers to impersonal machines without needs, rights, and knowledge. These narratives also emphasize static efficiency rather than dynamic effectiveness. But to the contrary...organizations are human communities. Workers deserve more than being reduced to a machine, and effective management requires more than technical optimization and a soulless deployment of labor (oops, back to war metaphors). 
  • Game Metaphors: playing fields, players, coaches, and scorecards. This creates a focus on keeping score (money) and winning. This gives legitimacy to seeking thrills and challenges without regard for the public who are reduced to spectators. But to the contrary...business is an integral part of society, not a sideshow for entertainment. Corporate “playing fields” are not isolated from society and business is not just about winning through profits.

Employment relations scholarship and practice has long sought to embrace a broader conception of business than simply making profits. Many of the major theories in business ethics similarly reveal and advocate for this broader conception. These theories also discount the popular emphasis on competition over cooperation as the driving force in business. Rather, it is emphasized that business is “a fully human activity” that requires a sense of community, extensive cooperation, and a deeper purpose than simply making money (as just one example, see Robert C. Solomon, Ethics and Excellence: Cooperation and Integrity in Business (Oxford University Press), which is also a good reference for the negatives of business metaphors). 

But note that the common metaphors described above (and by Solomon) capture very narrow views of business. The rhetorical power of these metaphors is illustrated by the negative practices that these metaphors support. In studying and practicing employment relations and human resources (and anything thing else related to business, including policy making), it’s important to break through these narrow metaphors. 

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A Politico story by Danny Vinik was published this week with the headline “The Real Future of Work” and a provocative subtitle: “Forget automation. The workplace is already cracking up in profound ways, and Washington is sorely behind on dealing with it.” This is an important story that deserves to be read widely. Automation has the potential to shake-up the labor market, but as this story carefully documents, there is a more immediate trend that is already here and needs to be reckoned with. Yet, to mix my metaphors, I would add to this that there are still more layers to peel back to find underlying root causes.

But let’s back up. How is the workplace “already cracking up in profound ways”? This quote from the article summarizes it nicely:

Over the past two decades, the U.S. labor market has undergone a quiet transformation, as companies increasingly forgo full-time employees and fill positions with independent contractors, on-call workers or temps—what economists have called “alternative work arrangements” or the “contingent workforce.” Most Americans still work in traditional jobs, but these new arrangements are growing—and the pace appears to be picking up.

Indeed, the data suggest that between 2005 and 2015, “all net job growth in the American economy has been in contingent jobs.” The article also does a nice job of convincingly showing that this is a much bigger issue than the gig economy, which might only account for 10 percent of the growth in contingent work. My friend David Weil has also captured the breadth of the “fissured workplace” in his book, and as recounted in this article, did a heroic effort at the Department of Labor during the Obama Administration trying to combat worker misclassification in which firms classify workers as contractors to avoid labor standards that apply to regular employees.

So there is really a twin phenomenon at work here: 1) the actual subcontracting of work and increased reliance on contingent workers, and 2) paperwork maneuvering to misclassify regular workers as contractors and temps. In both cases, the fissured workplace is a serious issue because “For many employees, their new status as “independent contractor” gives them no guarantee of earning the minimum wage or health insurance,” and the negative effects of insecurity are far-ranging. It’s hard to imagine a robust, democratic society with healthy families and communities when so many workers are stuck in insecure, contingent work arrangements. Anyone still doubting the pervasiveness of the trend toward contingent work arrangements needs to read Danny Vinik’s article. And remember that what happens at work, often doesn’t stay at work so the importance of bad work is magnified in our communities.

But what’s behind this powerful shift? The article doesn’t say. My own answer: in a (long) word, financialization. Financialization represents a multidimensional shift away from industrial capitalism in which corporations focused on making a profit by producing valuable goods and services, to financialized capitalism in which financial markets, motives, results, and institutions become dominant. An important part of financialization has been the rise of the ethos of shareholder value maximization.

In response to Japanese production methods, U.S. industry rationalized its operations in the 1980s; with the rise of digital technology, employment has been increasingly marketetized; and in response to globalization, employment has been globalized.  Each of these trends were initially driven by corporate strategies to restore competitiveness by restructuring the productive capacity of their workforce in the face of changing technology and competition. But under the pressure of maximizing shareholder value, these efforts turn into cost-cutting exercises for the sake of increasing short-term profitability and driving up stock prices. Workers face wage and benefit concessions, jobs are subcontracted and made contingent, the workplace fissures, and workers are intentionally misclassified—even when companies are profitable.

This is because under the banner of maximizing shareholder value, investors are insatiable in their demands for perpetually higher financial returns. I submit that this represents a fundamental shift in values. We can also see the importance of values in the private equity dimension of financialization in which the shareholder value ethos is pushed to the extreme by seeing companies solely as assets to be traded for maximum profit. All of this is important because values are hard to legislate. If I’m correct, then this means that while efforts to address worker misclassification and other abuses, to make benefits more portable, and other initiatives are important, they do not get at the heart of the problem (or at the lack of a heart).

With that said, this shift in values has been accompanied by institutional practices, specifically deregulated financial institutions, shareholder-friendly laws, corporate governance structures with outside directors, activist shareholders, and massive stock incentives for corporate executives. Consider this last element: these incentives can lead to stock repurchases, which have grown tremendously in recent years. Rather than retaining and reinvesting cost savings and earnings back into the business as was the norm before the shareholder-value movement, cost savings and earnings are increasingly being used to repurchase shares of the company’s stock. This “downsize and distribute” strategy drives up the stock price which not only benefits investors, but also top executives because of their sizable stock options.

To really confront the key trends undermining stable and rewarding work that supports healthy families and communities, we need to dig into the roots of these trends. Financialization is likely a key root, if not the taproot. The better we can do identify causes, the better will be the discussions over what can be done. If financialization is important, then combating contingent work requires a combination of normative shifts (that are hard to legislate) and public policy changes (that are hard to implement). So where to start? Recognizing the harm of shutting workers out of corporate governance and of massive stock options are just two possibilities. Work is too important to be left to Wall Street.

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I just received news that my first book—Employment with a Human Face: Balancing Efficiency, Equity, and Voice—will be translated and published in Turkish. I have Dr. Fuat Man, a professor of HRM at Sakarya University to thank for this, and I’m particularly grateful and honored because he has already translated my The Thought of Work (Çalışma Düşüncesi). For personal reasons, I often think about Employment with a Human Face around the holidays (I’ll return to this below), and this news about a Turkish language edition has magnified these reflections.

I can’t believe that it’s been 14 years since Employment with a Human Face was published. It’s now a full-fledged teenager! How is it holding up? Here are the first two paragraphs of the book:

Employment is a critical feature of modern society. The nature of employment determines the quality of individuals’ lives, the operation of the economy, the viability of democracy, and the degree of respect for human dignity. It is therefore essential that modern society establish societal goals for employment. Economic prosperity demands that employment be productive, but should economic performance be the sole standard of the employment relationship? No. Work is not simply an economic transaction; respect for the importance of human life and dignity requires that the fair treatment of workers also be a fundamental standard of the employment relationship—as are the democratic ideals of freedom and equality. Furthermore, the importance of self-determination for both human dignity and democracy mandate employee input and participation in work-related decisions that affect workers’ lives. In short, the objectives of the employment relationship are efficiency, equity, and voice. This book is about these objectives, and the alternative ways in which they can be achieved.

In some situations, efficiency, equity, and voice are mutually reinforcing. A productive workforce provides the economic resources for equitable working conditions that include employee voice in decision making. And equitable treatment and employee participation can provide the avenues for reducing turnover, increasing employee commitment, and harnessing workers’ ideas for improving productivity and quality. But the more important question is: What should happen when efficiency, equity, and voice conflict with each other? This is the critical question that makes the analysis of the employment relationship a dynamic topic with diverse perspectives. Should efficiency—and the closely related property rights of employers—automatically trump equity and voice concerns? Or should the reverse be true—should equity and voice have priority over efficiency needs? Neither of these extreme options is preferable; rather, a democratic society should seek to balanceefficiency, equity, and voice. The power of free economic markets to provide efficiency and economic prosperity is important and should be encouraged, but respect for human dignity and democratic ideals further require that the power of economic markets be harnessed to serve the quality of human life and provide broadly shared prosperity. As such, the imperative for the drivers of employment—individuals, markets, institutions, organizational strategies, and public policies—is to provide employment with a human face—which I define as a productive and efficient employment relationship that also fulfills the standards of human rights. The International Labour Organization (1999) calls this simply “decent work.”

Maybe I’m biased, but I think this is as true as ever. Indeed, in recent years there has been an increased recognition of the deep importance of work, which magnifies the need to think seriously about the goals of the employment relationship, imbalances in this relationship, and to reject pure commodification and efficiency approaches. And there remains a pressing need to strive for a better balance in the workplace and in our societies. In fact, I just received a press release from the World Inequality Lab that confirms the tremendous increase in inequality that has occurred over the last few decades around the world, and calls for “more ambitious policies to democratize access to education and well-paying jobs in rich and emerging countries alike.” In other words, we need to actively strive for a better balance between efficiency, equity, and voice in and out of the workplace, even though this can be difficult, it requires institutional innovation, and there are diverse perspectives on how to best achieve this.

Since the time I wrote Employment with a Human Face, there has been increased thinking around citizenship rights as an alternative to human rights. Although the differences can be subtle, citizenship rights stem from membership in a human community such as a nation, rather than from being part of overall humanity, and thereby more clearly place obligations on the nation to provide citizenship rights. Moreover, whereas human rights are seen as universal, citizens have obligations as well as rights; so characterizing workers’ rights as citizenship rights rather than human rights also makes it easier to allow for workers’ interests such as equity and voice to be balanced with other objectives such as efficiency. The teenage Employment with a Human Face could be slightly more nuanced that the original by connecting equity and voice to citizenship rights rather than focusing on a human rights narrative. 

But in either case, I think the imperative is clear. I started with the introduction, and I can close with the book’s concluding passage, to which the teenage Employment with a Human Face would also add pressures from financialization as further impetus for new thinking and new policies:

Public discourse that emphasizes competitive markets, efficiency, and marginal productivity justice; the frequent lack of appreciation for employee voice; the continued turbulence of the 21st century workplace; the focus of employment research on the operation of the existing processes (often solely with efficiency in mind); and the need for “explicitly recognizing the role of moral choices in the labor market” (Osterman et al., 2001, 12) all make it imperative to ground the study of employment in the objectives of the employment relationship—efficiency, equity, and voice. This grounding provides the basis for a fuller understanding of all aspects of the employment relationship, including the alternative behaviors, strategies, institutions, and public policies for balancing efficiency, equity, and voice. From such analyses can come workplace governance practices and systems that fulfill the economic and human needs of a democratic society and foster broadly shared prosperity.

And if you are curious about why I often think about Employment with a Human Face around the holidays, here is my story. The very first copy of the book (so the very first copy of any book I had written), was delivered to my home on Christmas Eve in 2003. But no one heard the delivery person. My wife and I were up late getting things ready for Christmas morning. At around 1 in the morning (so it actually is Christmas by this point) a light snow is falling and for some reason I opened our front door, and a package falls into our front entry. Completely unexpectedly it was the very first copy of Employment with a Human Face. I won’t go so far as to say that it was a Christmas miracle because that would cheapen the significance of the holiday season, but it was a touching moment, complete with a gentle snow on an otherwise still night, that I will always remember.

Happy Holidays, and may your 2018 be filled with efficiency, equity, and voice.
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With Thanksgiving comes football, and with football comes…well, this year, maybe politics. While perhaps not as heated as in September and October, the NFL player anthem protest controversy has not been completely resolved. Before reading further, I’d like you to think about what underlies this dispute. Have you thought about it? Once you have thought about it, be honest—how many factors did you identify? My hypothesis is that most people would identify one main cause, or maybe two at most. People might differ in what cause they identify, but my point here is that it’s common to not think very deeply about the diverse factors that contribute to any particular conflict. Rather, the emphasis is typically on dispute resolution mechanisms.

There is a long history of this. New popes are elected through a papal conclave. “Conclave” comes from the Latin cum clave which means “with key.” Following the death of Pope Clement IV in 1268, cardinals met in Viterbo in central Italy to choose a successor. But political infighting prevented an agreement for many months. As the dispute dragged on, frustration with the lack of progress led city officials to lock the cardinals in the Palazzo dei Papi di Viterbo (hence “with key”), reduce their food rations, and even to remove the palazzo’s roof to expose them to the weather. After 33 months, Gregory X was elected pope, and he implemented rules for papal conclaves that included seclusion, food rations reduced to a single meal after three days, further food reductions after eight days, and the stoppage of any payments to them from the papal treasury during the conclave.

Using their bully pulpits, U.S. political leaders have occasionally tried similar strategies to force labor negotiators to reach agreements. President Lyndon Johnson called labor and company negotiators from the steel industry (1965) and copper industry (1968) to Washington, DC, and pressured them to negotiate in the Executive Office Building until they reached agreements. In 2016, Minnesota Governor Mark Dayton called negotiators from Allina Health and the nurses union to the governor’s residence and asked them to keep negotiating in that location until they settled their strike, which they did. While these political leaders don’t have the legal authority to sequester the negotiators cum clave, and they were not deprived of food or a roof, the spirit of these tactics are similar to the conclave pressures—increase the pressure on negotiators to settle a dispute.

By itself, these pressures do nothing to address, or even consider, the underlying factors leading or contributing to a particular dispute. Rather, these tactics assume that the dispute is structural in nature—a power struggle between groups with competing interests—and the solution is increased pressure to compromise. Of course, there are many other options for resolving disputes, including mediation, arbitration, rules, and legal proceedings. Mediation is perhaps the only one that has a chance to address the root causes of a dispute, and even in this case I assert that we need a greater explicit attention on the root causes of a dispute.

Returning to the NFL players anthem protest, when the focus is on rights (“is this legal?”) and consequences (“they should be fired or suspended”), this implicitly reduces the dispute to its structural aspects—who has the power to do what? But there many other layers. For example, miscommunication has contributed to the dispute, as when one of the team owners said “We can’t have the inmates running the prison,” and then issued a statement saying that this was not what he meant. There are also diverse cognitive aspects, including cultural differences that shape people’s judgements, interpretations, and priorities, often magnified by emotional reactions. It’s not just one thing, and how to best or fully resolve a dispute requires tailoring dispute resolution processes to these underlying causes.

So if you find yourself in a conflict on Thanksgiving as relatives with clashing political views gather, or on any other day in myriad other situations, pay more attention to the multiple contributing causes to a dispute before either escalating or jumping to a dispute resolution intervention. And watch this space for more about these issues because I'm working with Alex Colvin (Cornell) and Dionne Pohler (Toronto) to address the frequent oversimplification of, if not lack of attention to, the roots of conflict. Happy Thanksgiving. 

Further reading: For an early view of our research on the causes of conflict, see our conference paper "Advancing Dispute Resolution by Unpacking the Sources of Conflict: Toward an Integrated Framework," which we were honored to present earlier this month at the ILR School conference honoring David Lipsky.
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The raging controversy over the kneeling by NFL players during the playing of the national anthem took yet another turn recently, this time with labor law in the spotlight. Specifically, there has been publicity and press over the possibility that the National Labor Relations Act (NLRA) protects protesting players against being fired or other reprisals for their actions. Perhaps most notably, the New York Times published an article tree days ago with the headline "N.F.L. Players May Have an Ally in Their Protests: Labor Law." But just like a Hail Mary pass by a desperate football team as time runs out, I think this has low odds of success.

The classic applications of the NLRA pertain to situations involving labor unions, including workers trying to form a union, unions and companies bargaining contracts, and strikes by unionized workers. But as I have blogged about in at least one previous entry, the NLRA’s protections are not limited to situations involving formal union actions. Rather, the NLRA more fundamentally protects collective efforts by workers to improve their work situations. This is the relevance of the NLRA in this situation because even though the NFL players are unionized, their protest actions during the national anthem are not in the context of formal union activities like forming a union or bargaining a contract.

In this context, the New York Times article correctly indicated that “To be protected under federal labor law, an employee’s action must be conducted in concert with co-workers, it must address an issue of relevance to their job, and it must be carried out using appropriate means.” Given the widespread nature of the protests, Test #1 (conducted with co-workers) is satisfied. But unlike the experts quoted in the article, I’m skeptical that the remaining two tests are satisfied.

Test #2: addressing a job-relevant issue. The NLRA seeks to protect workers who join together to improve their wages, hours, and terms and conditions of employment. This has been interpreted in broad terms, including prohibiting employers from preventing employees from sharing their salary information with each other. Political activities are included in these protections, but only when those activities are sufficiently connected to employment conditions. To date, the NFL player protests have been about social justice, police brutality, and inequality. Obviously these are important issues, and I applaud the players’ stands, but these are not issues that are connected to their employment. [With that said, if the tenor of the protests shifts, for example, to expressing solidarity with a player who was reprimanded for protesting, then that solidarity action would fit within the scope of the NLRA. Unfortunately, the implication is that the players would have greater protections under labor law if their actions were more selfish (I guess the NLRA is very American after all).]

Test #3: conducted in an appropriate way. It’s important to remember that the NLRA’s protections are not unlimited. Rather, the law’s key challenge is balancing workers’ and employers’ rights and interests (hence the title of my textbook, Labor Relations: Striking a Balance). So actions that harm an employer’s business are not necessarily protected. In classic doctrine, workers can be prohibited from talking about unions or wearing buttons if this disrupts the employer’s business by undermining efficiency and discipline, by affecting customers, or by harming its public image. Presumably the NFL could argue that the protests are harming its image and business. The burden of proof would be on the NFL so it’s not clear which way a legal ruling would go, but my point is that it’s certainly not clear that labor law is on the players’ side.

Adding to this, insubordination is not protected by the NLRA. Suppose the NFL tried enforcing a policy of standing for the national anthem. Players refusing to obey this one policy but complying with other policies (e.g., playing the game!) could be seen as selectively refusing to follow managerial directives that they dislike while complying with other directives. This would then be more of a case of (unprotected) insubordination than of (protected) collective protest. 

In closing, it’s great that labor law is being discussed in this context. Labor law applies to many more situations than is commonly believed, so anything that raises awareness is a good thing. Also, I don’t intend this as a criticism of the players who are protesting. I applaud their desire to raise difficult questions and seek social justice. But for better or worse, I think the extent to which labor law might provide protections in this particular case has been overstated in the media. Labor law can assist workers in many situations, but this might not be one of them. 
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Whether a group of employees wants to form a union to represent them in collective bargaining is a decision that those employees should be entitled to make. Unfortunately, contingent faculty (non-tenure-track instructors, lecturers, and teaching specialists) at the University of Minnesota will likely not get to make that decision themselves. Rather, the Minnesota State Legislature effectively prevented them from being able to make this decision when it enacted an unnecessary provision in state law over 35 years ago. In the wake of a state appeals court ruling earlier this month upholding this strange legislative provision, it’s time for the legislature to correct its earlier mistake and repeal this provision.

Perhaps some background is needed. When some employees want to form a union, an appropriate bargaining unit needs to be defined in order to specify exactly what positions would be represented by a union if an organizing drive is successful. Standard practice is for the employees or their desired representative (a specific labor union) to initially specify this definition. If an employer objects and prefers a broader or narrower definition, then an expert governmental agency investigates and determines the exact definition of the appropriate bargaining unit. This is exactly what happens in the U.S. private sector (with the National Labor Relations Board handling unit determination questions based on its judgement of which employees share a “community of interest”), and, as far as I can tell, in almost all public sector jurisdictions in the United States (for example, see South Dakota's Public Employment Labor Relations Act section 3-18-4 or Iowa's Public Employment Relations Act section 20.13).

When Minnesota Public Sector Labor Relations Act (PELRA) was first enacted in 1971, this standard practice was adopted by empowering the Bureau of Mediation Services (BMS) to determine appropriate bargaining units when a public sector employer objects to the workers’ proposed definition. For state agencies, the law contained a proviso that an appropriate bargaining unit should consist of “all the employees under the same appointing Authority” unless “professional, geographical or other considerations affecting employment relations clearly require” some other appropriate unit (section 179.74). As is common elsewhere, there were no special provisions for the University of Minnesota, school districts, or others covered by PELRA.

In 1980, however, the Minnesota State Legislature deviated from common practice by changing PELRA to specify 16 (now 17) state bargaining units and 12 (now 13) University of Minnesota bargaining units (see Minnesota Session Laws 1980 c 617 s 40) (in later years, court units were also specified). This has long puzzled me, especially because it runs contrary to standard practice, and it is likely rooted in a desire to impose operational stability or convenience by limiting the number of bargaining units that a state agency or the University of Minnesota has to deal with. But the effect is to impose an outdated occupational structure on contemporary realities and to deny employees their rights to form unions and engage in collective bargaining. This is clearly not the way to balance efficiency, equity, and voice—a principle that I have long advocated as the key objective of work-related public policy (also see this, and this).

Getting back to the plight of contingent faculty at the University of Minnesota, the way the process should have worked was for BMS to have had the discretion to use its expert judgement to analyze contemporary realities and decide whether it was best to include contingent faculty with tenure-track faculty, or to define two separate units. But with the unit definitions pre-specified by state law, contingent faculty are not allowed to have their own unit, and the state appeals court ruled that they are not part of the tenure-track unit. So this ruling means that contingent faculty are included in a catch-all unit of all professional and administrative employees at the University of Minnesota. The diversity of this unit is hard to grasp. By one count, there are over 300 job titles in it, presumably many more than in 1980. By my reckoning, this will kill the contingent faculty union drive because  in order to unionize they'll need to get a majority of accountants, cartographers, athletic trainers, and numerous others to all vote for a single union, which is close to impossible. It strains credulity to think that this diversity (a) represents a community of interest for these employee groups and (b) serves anyone’s interests except the administration of the University of Minnesota because it makes unionization almost impossible (which might explain why the administration spent 18 months trying to get this ruling).  

The processes of labor relations work best when they are allowed to be dynamic and to adapt to changing situations by those directly involved. Collective bargaining has proven to be adaptable to many industries and occupations, and can handle economic, technological, and other changes when labor and management negotiators have the freedom to determine the scope and tenor of their negotiations. Similarly, determining appropriate bargaining units should be a flexible process in which an expert agency has the ability to adjust to changing trends. The world of work has changed significantly since 1980, and it’s silly to think that even a well-intentioned legislative intervention in 1980 is still the best approach today (exhibit A: the tremendous rise of contingent faculty at the University of Minnesota).

But there is an easy solution: simply repeal sections 179A.10 Subd. 2 (defining state units), 179A.101 Subd. 1 (defining court units), and 179A.11 Subd. 1 (defining University of Minnesota units). No language is needed to replace these unnecessary passages. In their absence, the authority to determine appropriate bargaining units will revert back to BMS under section 179A.09, and common sense practice found throughout the rest of the state and most of the country will be restored. And contingent faculty at the University of Minnesota, and perhaps other employee groups, too, will be able to act like the autonomous, dignified human beings that they are and make a decision whether to unionize or not.
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