Put yourself in the shoes of a manager who believes that a dispute is preventing two co-workers from working together effectively. What do you do? Possibilities might include encouraging them to get along, locking them in a room until they work out their differences, threatening them with consequences if their work doesn’t improve, giving one of them authority over the other, reassigning one of them, or extending a deadline on a project to give them more time. But here is an important complication: each of these possible solutions will only work if it matches the actual source of the dispute. So before jumping to a preferred intervention, we need to explicit identify the sources of a particular dispute.
In the case of the ineffective co-workers, there are numerous causes. Perhaps the two workers believe that they are competing for scarce resources, such as administrative support or a single promotion opening. Maybe the workers come from different cultural backgrounds and perceive a lack of respect for each other. Perhaps one had an emotional outburst that created lingering bad feelings. It could be the case that they disagree over tasks because they foresee different uses for a product they are developing. Maybe one or both of them face difficulties communicating. Maybe all (or none) of these causes underlie this particular dispute. Not all dispute or conflict resolution methods will be equally effective in these different scenarios, and a failure to diagnose and resolve the source(s) of a conflict can cause it to persist if not escalate.
For a dispute resolution method to be successful, the parties must first understand the sources of the conflict to choose an appropriate solution. But what are the possible sources of conflict? Alex Colvin (Cornell), Dionne Pohler (Toronto), and I scoured the multidisciplinary scholarly and professional literature on conflict and have created a three-part typology of the roots of conflict. We label the three key categories as structural, cognitive, and psychogenic.
Structural conflicts are result from the relationship between the parties’ interests or goals, rights, and sources of power. The classic conflict over scarce resources is when these interests are focused on things to satisfy material needs and desires. But conflicts are also possible over clashing value orientations (e.g., differing emphases on fairness, inclusion, or respect) or identity needs for a sense of purpose and meaning in one’s life, including those connected to group affiliations such as racial, ethnic, or religious affinities. We label this category “structural conflict” because the nature of these conflicts is determined by the rules, institutions, and practices in which this relationship is situated—in other words, by the structural nature of the relationship.
Cognitive conflicts relate to mental functioning. This is a broad category that includes a variety of ways in which cognition may cause or contribute to a dispute: interpretation, perception, information processing, decision-making, and communication. The human brain is not unitary or always internally consistent. So conflicts can arise because individuals perceive the same problem differently, such as when one uses a heuristic and another approaches it analytically. Common types of cognitive bias that result in conflict include loss aversion, anchoring, framing, fixed-pie perception, exaggeration of conflict, illusions of transparency, decision fatigue, and overconfidence. Individuals can also be motivated to process information in ways that validate preexisting beliefs, rather than by a search for accuracy, and in ways that magnify in-group/out-group differences. Individuals may also have different preferences or differences of opinion over how to interact or solve a problem, perhaps influenced by cultural or other differences. Lastly, communication is a cognitive activity that can lead to conflict when it breaks down. Miscommunication can result in many ways, such as noisy communication channels, different meanings, incorrect filtering of intent, and misinterpretation of nonverbal cues and personal demeanor.
Lastly, psychogenic conflict arises from the psychology of feelings. This has two main subdimensions. First, emotions and moods can cause conflict through the behaviors they create or by influencing decision-making. For example, anger, frustration, contempt, jealousy, and other hot emotions can lead to aggressive communication behaviors (e.g., criticism, contempt, and shouting) while lessening constructive communication behaviors (e.g., active listening). The recipient of negative emotions often tries to counter this by lashing out or other responses that distracts them away from processing information and making sound decisions; conversely, happy individuals tend to make riskier decisions which can also be a source of conflict. Second, personality differences can also cause or contribute to disputes. Individuals with high values of neuroticism and extraversion and/or low values of agreeableness may be more likely to be contentious, antagonistic, irritable, and even want to dominate others, whereas those who score low on openness and conscientiousness tend to be inflexible and disorganized, which can clash with those who prefer a different approach. Personality can also affect conflict by affecting an individual’s attributions—for example, different personality types tend to see a conflict as either task- or relationship-based.
Returning to the opening scenario, did you stop and consider possible sources of conflict before moving ahead to an intervention? Effective dispute resolution must be rooted in a comprehensive and accurate understanding of a conflict’s roots. But disputes can be multi-faceted with numerous causes that interact in complicated ways. Just look at the complexity of the conflict over NFL players kneeling during the national anthem. My co-authors and I submit that it is important to conceptually distinguish different aspects of the full range of sources of conflict to appreciate the nature of each particular dispute. So in analyzing any conflict, look for structural, cognitive, and psychogenic aspects. Not all will be present in every dispute, but it’s better to look for them and rule them out than to not look at all and miss a major factor.
Source: John W. Budd, Alexander J.S. Colvin, and Dionne Pohler (forthcoming) "Advancing Dispute Resolution by Unpacking the Sources of Conflict: Toward an Integrated Framework," ILR Review. Click here to read the full paper.
This past week I had the pleasure of speaking about the current state of labor relations to a local community group. It was great to see their interest in the topic, and the audience asked many good questions and had numerous important observations. I wasn’t sure how to structure my presentation, but they had provided me with a list of possible questions so I decided to approach it like a “State of Organized Labor FAQ.” Here are some highlights:
1. How many union members are there in the United States? What is the trend is union density (the fraction of workers who are union members?
We can answer these questions by this graph I’ve constructed:
The total area shows the number of union members. While less than its peak membership 45 years ago, there are still a lot of union members in the United States (over 14 million, roughly even split between private and public sector workers). Trends in union density (the fraction of workers who are unionized) are indicated by the blue (private sector) and green (public sector) lines. There is a clear divergence in these two trends over the past 50 years. Specifically, public sector density has been relatively stable at around 35 percent for a couple of decades, while private sector union density has been falling since the 1950s, and now stands around 6.5 percent. Comparing the red area with the blue line, we can that the decline in union density is less about losing members and more about failing to keep pace with employment growth.
[Update: On January 18, 2019, the Bureau of Labor Statistics released its annual statistical report on union membership. For 2018, total union membership is 14.7 million, with density rates of 6.4 and 33.9 percent in the private and public sectors, respectively.]
2. Why has union membership declined, or not?
Again, looking back at the graph, union density decline is a private sector issue. By why? For starters, note that the decline in private sector density started way back in the 1950s. So this is a long-term issue which likely reflects a combination of factors, and we can’t blame recent things (even as far back as President Reagan’s firing of the air traffic controllers) for the entire decline. Commonly-cited factors include structural change (e.g., decline of manufacturing, demographic shifts, globalization), decreased demand for union representation (e.g., laws and paternalistic human resource management provide some of the protections that unions provide, or unions have failed to keep up with what workers want), and most controversially, employer opposition (legal and illegal). In the final analysis, it’s likely to be a combination of these factors.
But why the stability in public sector? That sector has also experienced demographic shifts (making it a less satisfactory explanation for the private sector decline), but the economic shifts have been less pronounced in this sector (e.g., the decline of manufacturing is purely a private sector issue). Moreover, robust union density in the public sector also seems to undermine demand-based explanations for the private sector decline. But due to differential norms and an inability to shift much of public sector work (e.g., schools need to remain in their district), there might be less scope for union opposition by public sector managers. This might be a key reason for the difference in the private and public sector trends.
3. Is it imaginable that the software engineers in Silicon Valley could be unionized?
Sure. There are many independent-minded skilled workers who are unionized, such as airline pilots, university faculty, and lawyers. Actors and professional athletes are also unionized. And the recent walkout among Google employees to protest Google’s handling of sexual harassment indicate that collective action is one strategy these workers are already using.
4. Has immigration (documented and undocumented) been a plus or minus or a zero for unions?
Yes. Wait a minute, which is it? This isn't a yes or no question. Well...like many other things in labor relations, it’s complicated. There are cases in which immigration can be bad for organized labor, whether because of desperate workers willing to work for less, immigrant workers who are fearful of being deported and therefore don’t want to make waves, prejudice against immigrant workers by union leaders or members, or other reasons. But there is another side to this story. Many immigrants to the United States come from cultures that are more collectivist and less individualistic than in the United States, and shared experiences of living and working together in specific neighborhoods and jobs can provide a strong sense of solidarity. Indeed, in Minneapolis, CTUL has been very successful in building collective power among janitors and other low-wage workers, many of whom are Latinx, Somali, or members of other non-majority groups, and Somali workers recently forced Amazon to negotiate with them. We should not dismiss immigration as entirely a negative for the labor movement--indeed, quite the contrary.
5. Do unions make their firms or industries less productive and hence less competitive? Do unions put firms out of business?
A common stereotype about unions pertains to extensive, restrictive work rules, which might reduce productivity. But once again, there is another side to the story and there are ways in which unions might increaseproductivity (e.g., workers protected by a grievance procedure might feel empowered to speak out about work practices more honestly than nonunion workers). What happens in practice? Everything. In some cases, unionized workplaces are less productive; in other cases, it’s the reverse, or in some cases there aren’t meaningful differences. So it’s really about the nature of any particular situation. Moreover, from a pluralist perspective in which unions are necessary to better balance an otherwise unequal employment relationship, unions are not intended as productivity-enhancing devices so this should not be a major element on which they are judged.
In terms of whether unions put companies out of business, that too is always a complicated story. Sometimes a strike might prove to be the final straw, but there could have been business-related problems for a longer period of time. In the 1990s in the Twin Cities, Country Club Markets closed after a strike, but there were many factors at play, including a lack of investment back into the business. Indeed, it’s not in a union’s self-interest to systematically put companies out of business, and research does not find that unions destroy firms.
Envision here a picture of the end zone at Giant’s Stadium in New Jersey. But of course I don’t have an answer to this, but given that some people in audience grew up in Detroit, I thought this would be funny to throw in. Moreover, it gave me the opportunity to point out the following. In response to some union corruption (which it’s important to not overstate), the Landrum-Griffin Act was passed in 1959 and essentially has the philosophy that requiring greater disclosures and transparency among unions will prevent union fraud (it’s harder to commit fraud when others can see what’s going on). Sounds sensible, but it took lawmakers until 2002 to treat companies in the same way (that is, Sarbanes–Oxley has essentially this same underlying logic). Seems like a big double-standard. In contrast, what I often emphasize is that unions are like other private, public, and nonprofit sector organizations: most are effective, most are good, but a small number are not. The same can be said for leaders of unions, businesses, public sector agencies, and non-profits. Unions should not be singled out, especially when it comes to corruption or other negative behaviors.
8. Why the controversies over right-to-work laws, free riders, and agency fees (fair share fees)?
Misleading named, right-to-work laws prevent unions from negotiating contract clauses that require workers from paying any union dues, even though the union has a legal obligation to represent them. Most right-to-work laws were passed in the 1940s and 1950s. But the issue sparked back to life around 2012 when a number of Republican governors and state lawmakers began championing laws in states with traditionally strong labor movements, such as Wisconsin and Michigan. Debates over right-to-work laws are very divisive, with proponents arguing that they are necessary to protect individual liberty and opponents countering that the true goal is to weaken unions. The controversies have become amplified because it now really more of a political issue than an economic one, with some conservative strategists being bold in revealing their desire to destroy the Democratic Party. In addition to state-level legislative initiatives, there has also been a paired movement to achieve right-to-work through the courts--a movement that achieved success when the Supreme Court made the entire public sector a right-to-work jurisdiction with its 2018 ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Though in the longer-run, this Janus decision could actually make unions stronger.
Paid family leave is back in the U.S. news again, this time with a proposal by Senator Mario Rubio called the Economic Security for New Parents Act, which would provide paid leave to parents who agree to delay taking social security benefits by an amount to offset the paid leave. I’m not going to get into the merits and controversies of this approach (for that, see this by the proposal’s originator, Kristin Shapiro, and this piece).
Rather, my key point is that simply offering a family leave policy does not automatically alleviate workers’ concerns about income loss or other potential negative consequences of taking a leave. So while new ideas about universal policies are important—and actually enacting policies would be even better!—we also need to better understand the factors that prevent workers from taking a leave, and ways to reduce these barriers.
So to think about the barriers to a leave, Tae-Youn Park (Vanderbilt), Eun-Suk Lee (KAIST), and I develop a four-part framework consisting of all A’s: availability, awareness, affordability, and assurance. These four elements reflect the key considerations for whether any worker takes many kinds of leave from work: 1) the policy needs to be available, 2) if available, the worker needs to be aware of it, 3) even if aware of an existing policy, the worker needs to believe he or she can afford a leave, and 4) even if affordable, the worker needs to have assurances against negative consequences that might result from taking a leave (e.g., a promotion going to someone else). We think this framework can help guide research into leave-taking barriers.
In a paper titled “What Do Unions Do for Mothers? Paid Maternity Leave Use and the Multifaceted Roles of Labor Unions,” the three of us focus specifically on the potential impact of labor unions. For starters, based on existing research on what unions do, it’s clear that unions have the potential to positively affect all four of these key steps (and not only in the United States). They can bargain for (better) leave policies; help spread awareness through newsletters, one-to-one interactions, and the like; make leaves more affordable through higher wages and better insurance coverage; and combat reprisals through bargaining, grievance procedures, and other means. But what happens in practice?
To find out, we turned to the National Longitudinal Survey of Youth 1997 (NLSY97) which, importantly, is a nationally-representative sample. Due to some data peculiarities, we are only able to analyze women taking paid maternity leave, but future analyses of paternity leave taking would also be valuable. Our final data set has 27,472 observations from 4,108 female workers across a 15-year period. Ultimately we find that union-represented workers are at least 17 percent more likely to use paid maternity leave than comparable nonunion workers, and that unions facilitate this leave-taking through the availability, awareness, and affordability channels. We also find that mothers who take a paid maternity leave experience a post-leave penalty—specifically, their wage growth is slower when compared to those who did not take a leave. Surprisingly, we did not find that labor unions lessen this penalty, which would be one aspect of the assurance dimension.
At one level, this research is about what unions do with respect to the important issue of helping new parents take the amount of leave they deserve after a birth or adoption. In looking at the aggregate picture, they appear to be helping in some ways, with perhaps room for expanding their activities. What happens on a case-by-case basis, we cannot observe. But at a higher level, this research is about continuing to deepen our understanding of the barriers to parental leave taking, which can help with policy design when (hopefully!) a policy is (finally!) enacted in the United States.
The workplace is not like Las Vegas—what happens at work, often doesn’t stay at work. Nearly 250 years ago, the father of modern economics, Adam Smith, worried that mind-numbing jobs would cause workers to lose the ability and motivation to be thoughtful, engaged citizen-people outside of the workplace (The Wealth of Nations, Book V, Chapter I, Part III, Article II). This is perhaps one of the few areas where Karl Marx would have agreed with Smith, and Marx’s rejection of capitalism is deeply rooted in his concerns with the far-reaching, negative effects of work. The detrimental effects on someone’s personal life and on their community might be fairly obvious for workplace injuries, and there is increasing recognition of the mental health risks of lousy work. But does the nature of the workplace affect other aspects of society, like political participation?
Some argue that the workplace can be a breeding ground for pro-democratic attitudes and political behaviors. That is, the use of deliberative and other participatory skills in one’s work can give someone the confidence and the skills to want to participate in the political arena. And hearkening back to Smith and Marx, the absence or repression of autonomous decision-making in the workplace can undercut attitudes and skills that promote political participation, thus weakening political engagement. But does this actually happen in practice, at least to a magnitude we can observe across many workers?
To investigate this, my co-authors and I analyze European Social Survey data on over 14,000 workers across 27 European countries. These workers reported their level of political participation in nine activities (such as voting, contacting a politician, wearing a campaign badge, and belonging to a political party) and also their interest level in politics. Moreover, they also answered several questions on the extent to which they have autonomy and participate in decision-making in their jobs. We combined these several questions into an index of individual voice or workplace democracy.
We then undertake a number of multivariate analyses and find that that employees with greater levels of individual voice at work are indeed significantly more likely to engage in a broad array of pro-democratic behaviors, and we find strong results even when controlling for a wide-range of employee and job characteristics. Or to put this in a negative frame reminiscent of Smith and Marx, dictatorial and authoritarian workplace practices are likely to be related to reduced political participation in the democratic arena.
This relationship appears just as strong as the commonly-accepted relationship between labor unions and political participation. We further show that the results do not appear to be driven by a small number of specific countries; rather, the relationship between workplace democracy and political democracy is one that is apparent across diverse countries, and hence across diverse institutional environments.
These results imply that the importance of organizational practices extends beyond the workplace, and public policy interventions might be warranted to prevent dictatorial work regimes that dampen political engagement. And while we use accepted econometric techniques to account for the possibility that the causal arrows runs from the workplace to the political arena, our findings are still important if causality actually runs from the political arena to the workplace. In such a case, then a participatory workplace should be seen as an important outlet for individuals valuing political involvement. In particular, workplace participation can prevent individuals from getting frustrated or losing their deliberative skills, thus reducing the likelihood that they withdraw from the political arena. So regardless of which way the causal arrow points, the workplace-political engagement nexus is an important one that deserves greater attention.
What happens at work, doesn’t stay at work. Rather, work is an inseparable part of our lives and our communities. As such, it deserves continued scrutiny by all of us.
I’ve been reading Bullshit Jobs by LSE anthropologist David Graeber (Simon & Schuster, 2018). Graeber defines a bullshit job as “a form of paid employment that is so completely pointless, unnecessary, or pernicious that even the employee cannot justify its existence even though, as part of the conditions of employment, the employee feels obliged to pretend that this is not the case” (pp. 9-10), and identifies five major types:
Flunky jobs make someone else look or feel important without any other real purpose,
Goon jobsare those with an aggressive element that exist only because someone else has also created them and has an advantage if they are unmatched,
Duct-taping jobs fix problems that shouldn’t exist,
Box-ticking jobs make an organization look like it’s doing something when it’s not,
Taskmaster jobs manage others who don’t need managing.
The common theme here is that these are all pointless jobs. They are not bad in the conventional sense of having lousy pay and working conditions—indeed, Graeber notes that many bullshit jobs are corporate and government jobs with good pay and safe working conditions—but they don’t have any real value. Citing the fact that 37% of survey respondents said that their job does not make a meaningful contribution to the world, Graeber then claims that “if 37 percent of jobs are bullshit, and 37 percent of the remaining 63 percent are in support of bullshit, then slightly over 50 percent of all labor falls into the bullshit sector in the broadest sense of the term” (p. 62).
Suppose that this is true, and, as Graeber argues, it’s largely a post-war phenomenon. Then this means that in that time period, “upward of 50 percent to 60 percent of the population has, in fact, been thrown out of work” when we equate work to doing something meaningful (p. 265). That’s a provocative way to think about what might be happening in the world of work. Moreover, Graeber also points out that “if you combine this with the bullshitization of useful occupations (at least 50 percent in office work; presumably less in other sorts), and the various professions that basically exist only because everyone is working too hard (dog washers, all-night pizza deliverymen, to name a few), we could probably get the real workweek down to fifteen hours—or even twelve—without anyone noticing much” (pp. 62-3).
Admittedly, I’m not convinced that the true magnitudes are as large as claimed. In Bullshit Jobs, the supporting anecdotes perhaps represent the worst cases and I'd be surprised if we couldn't find dsyfunctional examples in all occupations. But it's entire occupations that are then characterized as being bullshit, as in this description of goon jobs: “If no one had an army, armies would not be needed. But the same can be said of most lobbyists, PR specialists, telemarketers, and corporate lawyers” (p. 36). By the end, pretty much all administrative and finance-related jobs have been labeled as useless, including human resources. So I think we need to be concerned with fallacies of composition. But even if the actual number of bullshit jobs is (a lot?) less than claimed, the implications in the previous paragraph are still important to confront, albeit perhaps better phrased as questions (e.g., how many people have essentially been put out of (meaningful) work?).
On a personal level, having a bullshit job is a problem because work should be providing meaning and rewards beyond a paycheck (as I’ve written about in The Thought of Work and elsewhere). In this way, the micro-level problems with bullshit jobs are contained within Karl Marx’s articulation of the problems of worker alienation under capitalism. But I’m not seeing how this aspect of Bullshit Jobs improves upon the concept of alienation. In fact, it seems that workers in bullshit jobs are all alienated, but the concept of alienation importantly also draws attention to the ways in which non-bullshit jobs can also be alienating.
Graeber goes onto argue that bullshit jobs create a moral envy in which workers with bullshit jobs feel resentment toward those with meaningful jobs, even though in Graeber’s eyes these meaningful jobs often have worse pay and working conditions. In fact, envy and resentment among managers, who are all seen as occupying bullshit jobs, towards those below them who are doing real work “is a key part of the justification of underpaying such workers” (p. 248). Frankly, I’m skeptical of this. Indeed, I would argue the opposite—blue collar and service workers are paid less because of prejudice and bias (not envy) that subconsciously allow managers to overstate their own importance while devaluing the contributions of manual and service work. Graeber also gives a lot of power to the finance industry and government officials in intentionally creating processes that lead to bullshit jobs in order to line their own pockets or prevent others from being able to navigate social safety nets. The former seems compelling but I’m not sure how much of the big picture it can explain, while the latter might be the unfortunate result of other priorities that are seen as legitimate by policy-makers (e.g., fraud).
But in some respects, these might just be second-order squabbles. For what Graeber really seems concerned about are the polarization in society (which is connected to work in one way or another) and freeing up work so that individuals can choose their own meaningful paths (including the freedom to find fulfillment without working at all). These are critically important issues that deserve all the attention they can get, and Graeber's ideas on the primary concerns are worth serious reflection. So in the end, if the provocatively overstated style of Bullshit Jobs causes more to confront these deeper issues, then I can overlook—OK, you know I have to say it—the bullshit.
Update (January 14, 2019): Just published research finds that the fraction of workers who report that their jobs are socially useless is a lot lower than what's claimed by Graeber, but it's still non-negligible.
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.
Last month, the New York Times and the Star Tribune reported on conflicts between Somalian workers and management at Amazon’s Shakopee (Minnesota) warehouse. The workers’ concerns include increases in their workload, lack of advancement opportunities, and prayer breaks.
There are many interesting angles to this story, including the community built among Somalian workers (at least partly facilitated by the Amazon-provided bus that brings them from and back to downtown Minneapolis each day) and the role of the Awood Center (a worker center for East African workers in the Twin Cities). But then there’s this from the New York Times article by Karen Weise:
“Now, tied together by a close cultural connection and empowered by a tight labor market, they appear to be the first known group in the United States to get Amazon management to negotiate. After modest protests over the summer, the workers have had two private meetings with management in recent months.”
Kudos to the workers for this achievement. I’m a fan of worker voice in many forms (and here, too). And these issues are probably particularly ripe for constructive conversations. It’s important to put a human face on workload demands, frustration with advancement could be a win-win issue to work through, and requests for prayer breaks involve obvious cultural differences that are hard to overcome without an understanding that comes from personal interaction. And this dialogue has resulted in what seems like some constructive changes, again quoting from the New York Times article:
“Last week, Amazon offered some compromises at its facilities in the Minneapolis area. The company said it would require a general manager and a Somali-speaking manager to agree on any firings related to productivity rates, designate a manager to respond to individual complaints within five days and meet with workers quarterly.”
But focusing solely on the process of employee voice, there is room for tremendous improvement. According to these reports, there have only been TWO meetings, and Amazon has only committed to a quarterly meeting with workers. As in four times a year? Employee voice should be ongoing rather than letting problems fester. And committing to respond to individual complaints within five days hardly seems responsive—that can be a long time for a worker to suffer. Employee voice should be embraced as something worthy of immediate attention whenever feasible.
In fact, the workers have scheduled a protest because they do not believe their concerns have been fully addressed. Employee voice is not a magical solution that will make these issues disappear, but dialogue is certainly worth trying more than once a quarter. For Amazon, further discussions could hopefully resolve these issues and avoid work disruptions. For the workers, voice allows them to participate in shaping their work life in ways consistent with human needs and dignity. So keep talking with your workers. No to your workers. With your workers.
“You can’t say ‘orange’ to your boss.” Wait a minute, what?!? Is “orange” some kind of offensive slang I’m not aware of? I don’t think so…so taken in isolation, this sentence from David Graeber’s book Bullshit Jobs (p. 282) seems odd. But it’s actually quite important. “Orange” is being used here as an example of a safe word analogous to what someone would have in erotic role-playing involving bondage, discipline, dominance and submission, and sadomasochism (BDSM). Graeber is right—you don’t have a safe word at work, but you should.
It’s easy to envision a sadistic boss who enjoys humiliating or inflicting pain on others. We might also joke that only a masochist could put up with certain bosses or jobs that look painful to us. But at a more fundamental level, many, if not all, jobs can be seen as having a (non-sexual) sadomasochistic nature because of the dependency nature of the employment relationship. In her book Sadomasochism in Everyday Life, Lynn Chancer argues that “many workers, like the masochist, find themselves subject to chains of command that induce extreme dependency and a tendency toward the experience of oneself as inferior relative to an allegedly superior authority” (p. 106). And for bosses, “perpetually insecure himself or herself (why else would the capitalist need to figuratively bind and restrict the freedom of the worker?), no level of control really satisfies” (p. 109) so there is a sadistic-like (in psychological terms) continual push for dominance. Chancer further argues that the feeling of power is more satisfying or authentic when the subordinate exhibits some resistance or independence (hence bosses want employees with initiative), but not so much as to threaten the hierarchy.
So paid work in a hierarchical system with economic, legal, and other inequalities has important elements of a sadomasochistic relationship. But (non-pathological) BDSM role-playing has other critical features (Elena Faccio et al., Forbidden Games: The Construction of Sexualityand Sexual Pleasure by BDSM ‘Players,’Culture, Health & Sexuality, 2014). Specifically, BDSM players design the rules of the game, are aware of their roles, and can withdraw their consent at any time by the use of an agreed-upon safe word. As Graeber notes, “This is precisely what’s lacking in real-life sadomasochistic situations. You can’t say “orange” to your boss. Supervisors never work out in advance in what ways employees can and cannot be chewed out for different sorts of infractions, and if an employee is…being reprimanded or otherwise humiliated, she knows there is nothing she can say to make it stop” (pp. 121-2).
You might say, but a worker can say “I quit.” But this is only a safe word if a worker can easily find similar work and pay elsewhere—an assumption frequent in mainstream economic (neoliberal) thought and associated public policies, but often not a reality for many workers.
Graeber argues that a universal basic income would turn “I quit” into a safe word because at least some level of income would not be dependent on a particular job. I would add that there are other things that could also be done to make work more like BDSM role play that fulfills the BDSM “safe, sane and consensual” (SSC) code:
· Require employers to provide a written statement to all employees disclosing all terms and conditions of employment, including being able to be fired at any time for almost any reason. This might not change the actual terms and conditions of employment, but it would at least give workers more clarity about what they are signing up for.
· Enact statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace. Again, this might not change the actual terms and conditions of employment, but it could give workers more power to articulate their desires and object to certain things.
· Grant workers the right to meet with their employer to request a flexible work schedule, a certain number of hours, or other scheduling items. This could help workers be part of designing at least some of the “rules of the game.”
· As Steve Befort and I have argued in Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, the United States should enact an American Good Cause Termination Act in which employees can only be fired if there is “good cause” for such an action. A just cause standard is nearly universal in U.S. union contracts, and in CEO contracts. By outlawing both bad and irrelevant reasons for dismissing employees, this could give workers greater power to object to onerous conditions without having to quit, and could also better protect them if they wanted to form a union to improve their power.
None of these would necessarily fully solve the dependency issues inherent in the modern employment relationship. That is, work for many might be hopelessly sadomasochistic. Which means that it's important for us to think about ways to create a better balance to promote what I've called "employment with a human face." Or as provocatively put forth by Graeber (p. 283): “What would be the equivalent of saying “orange” to one’s boss? Or to an insufferable bureaucrat, obnoxious academic advisor, or abusive boyfriend? How do we create only games that we actually feel like playing, because we can opt out at any time?”
Perhaps surprisingly, then, making the employment relationship more like (non-pathological) BDSM role-playing with its SSC principles would be a good thing. You should be able to say “orange” to your boss. And many other things, too.
In 2018, all eyes in the labor relations community were focused on the Supreme Court in anticipation of its ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Workers who are represented by a labor union cannot be forced to join a union and pay full dues, but in the absence of a right-to-work law, it has been possible to require them to pay an agency fee (equivalently, “fair-share fee”) to cover the costs of representing them. The question in Janus was whether mandatory agency fee arrangements in the public sector violate an individual’s free speech rights. This is only a question relevant to the public sector because the Constitution only prohibits the government from infringing on speech—there are no prohibitions against a private sector employer limiting an employee’s speech.
The free-speech argument against public sector agency fees is that mandating these payments means that a governmental body is forcing someone who does not belong to the union to subsidize the speech of others (the union) who they don’t agree with. Note carefully that this requires seeing public sector collective bargaining as rising to the level of public expression that enjoys constitutional protections. Opposed to this view is a counter-argument based on seeing collective bargaining as part of the employment relationship, not part of public discourse. So if states want to allow agency fees and prevent free-riding, then this should continue to be within their authority as regulators of the public sector employment relationship, consistent with other precedents in which public sector employees do not have free speech rights when speaking as workers rather than citizens.
When the Janus decision was issued last week, no one was surprised by the verdict: five conservative justices outnumbered four liberal justices in declaring that mandatory agency fee arrangements in the public sector are unconstitutional free speech violations. This makes the entire U.S. public sector a right-to-work sector in which public sector unions will only be financially supported by union members. As such, this is arguably the most significant Supreme Court ruling affecting labor relations in a long time. It is also a highly-charged decision because Janus and related cases have been funded by conservative political groups seeking to weaken the labor movement as a counterweight to Republicans in the political arena. Indeed, President Trump’s tweet in support of the ruling boasted “Big loss for the coffers of the Democrats!”:
So this case is about much more than individual free speech. But will it be successful in weakening the labor movement?
In the short-term, Janus is likely to reduce the financial strength of public sector labor unions in non-right-to-work states (agency fees were already prohibited in right-to-work states) as nonmembers stop paying dues. Labor unions might also have to spend more time and money fighting additional lawsuits that will likely be filed by conservative groups seeking to get previously-paid agency fee amounts returned to workers. But it might not be all bad news for organized labor.
Some states might take legislative steps to lessen the impact of the Janus ruling. Possibilities include not requiring unions to represent nonmembers in grievance hearings; allowing unions to charge nonmembers for specific services such as grievance representation or arbitration; giving unions time during new employee orientation to meet new workers; making it difficult for anti-group workers to contact workers; and giving union members paid release time to recruit others into the union. It might also be legal for public sector unions to negotiate an agency fee arrangement that includes an opt-out clause allowing objectors to donate their fee to a charity.
At an even more fundamental level, recall that the Janus decision relies on elevating collective bargaining to a level of public speech that is entitled to constitutional protection. Ironically, then, this could bring new levels of legal protection to public sector collective bargaining. For example, state laws that restrict collective bargaining to narrow occupations or prohibit it altogether might be now be unconstitutional violations of free speech. Attempts to legislate further limitations on public sector bargaining, as in the case of Wisconsin, could also be challenged on this same basis. These issues will take years to work through the legal system, however.
So without waiting for favorable legislative or legal action, what can the labor movement do? The labor movement has had several years to prepare for this kind of ruling, and the primary response is to focus on internal organizing. This emphasizes relationship-building with bargaining unit members so that workers feel that they are a necessary part of a vibrant organization that effectively represents their interests. When this is successfully, not only will workers join their union and pay dues, but they will also be more engaged which further creates a more dynamic organization. Janus might also contribute to a feeling among public sector workers that they are under attack, making them receptive to collective action, as was demonstrated earlier this year in the statewide teacher strikes in West Virginia, Oklahoma, and Arizona. So there is the distinct possibility that the labor movement ends up stronger than it was before the Janus decision.
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.
Suppose you think that your employer is engaging in wage theft by intentionally misclassifying you as exempt from overtime (or substitute many other possible grievances that are shared by co-workers, such as being misclassified as contractors, enduring systematic discrimination or harassment, or being forced to work off the clock). In the absence of a union, what alternatives do you have?
One classic response is “if you don’t like your job, quit.” But this is far from satisfactory. This puts most of the burden on the employee. Even if it is possible to find a similar job relatively easily (which isn’t always the case), there are still significant adjustment costs like switching health insurance providers. Indeed, employers have increasingly forced workers to sign non-compete agreements which makes it even harder for workers to find comparable new jobs. Moreover, if the worker has been denied something they are entitled to, like overtime, then quitting doesn’t make them whole. And if an employer has broken the law, quitting doesn’t hold it accountable, nor does it provide a deterrent against other violators. So we shouldn’t force workers to rely on quitting.
Instead of quitting, perhaps a worker can complain internally. But let’s be realistic. If an organization is intentionally misclassifying workers, engaging in systematic gender or racial discrimination, or other unethical practices, it’s hardly likely to respond positively to an internal complaint.
So, of course, the natural venue for trying to redress potential legal violations is to file a lawsuit. But over half of the U.S. workforce is now forced to sign a mandatory arbitration agreement. This prevents them from filing a lawsuit. To be fair, arbitration could have some advantages for employees, primarily in terms of being able to access a more affordable venue for resolving this issue. But there are potential drawbacks because employers have the resources and expertise to dominate the arbitration process. In fact, it’s the employer that determines the structure of the process that will be used. Within some modest boundaries, the employer can structure the process as it desires, and presumably does so in ways that serves its own interests, not those of aggrieved workers. Moreover, note that the employee has to sign away his or her rights to file a lawsuit in very unfair circumstances: they won’t get the job if they don’t sign, they haven’t yet experienced the workplace firsthand, and they are waiving their rights far in advance of any grievance materializing so they don’t really know what they are giving away or signing up for.
Because of these disadvantages, some workers have filed class action lawsuits in order to get to their case into court, even when seemingly prevented by a mandatory arbitration provision. For example, employees at Epic Systems, a Wisconsin-based health IT company, filed a class action lawsuit accusing Epic Systems of denying them overtime due to intentional misclassification. Even though they had previously been required to agree to submit wage-and-hour claims to individual arbitration, they argued that filing a class action lawsuit is a form of collective activity protected by the National Labor Relations Act (NLRA). Indeed, this argument was successful in the lower courts.
But Epic Systems appealed to the Supreme Court, which then ruled earlier this year that the arbitration agreements must be enforced. So employees who are forced to sign individual arbitration agreements—far in advance of any actual dispute—are prevented from any kind of legal action. Rather, they must seek justice in individual arbitration hearings. Low-paid workers are unlikely to be able to afford an attorney, and broad-based violations are less likely to come to light. And since the employer but not workers are repeat players in arbitration, arbitrators have incentives to favor employers.
So what’s left for workers? Well, they could try to unionize but that’s very time consuming. So perhaps ironically, it’s striking what’s left after the Epic Systems ruling. Yes, I mean that literally. Employees who face a similar grievance such as misclassification or discrimination can go on strike. The NLRA seeks to protect workers who band together to enhance their collective power and voice in determining wages, hours, and terms and conditions of employment. This is because the NLRA is premised on a belief that the employment relationship is an unequal one, and it will work better for all if workers act together rather than individually to better balance corporate power.
So collective activities to have a voice over wages, hours, and terms and conditions of employment are protected, which means that workers cannot be discharged, disciplined, or other discriminated against for engaging in these activities. When multiple workers feel aggrieved by work-related issues, they should remember these protections. If things are so bad that workers are ready to quit, they should instead think about going on strike. That is, as a group, they can collectively refuse to work until their grievances are resolved. The company doesn’t have to pay them or give into their demands. But it cannot fire them for this protected activity.
When there are mandatory arbitration agreements in place, the employer would likely claim that these would trump the right to strike. So we’d have a similar legal controversy as faced in Epic Systems. But unlike class action lawsuits, going on strike is clearly protected by the NLRA so I would expect a different legal outcome that allows striking even in the presence of an arbitration agreement (though I’m not a lawyer…so maybe I’m missing something).
In any case, going on strike isn’t ideal. Workers lose their pay and they can be replaced. Business and customers suffer, too. In fact, one of the major goals of the NLRA is to promote labor peace, along with a more balanced and therefore healthier employment relationship. Rulings like Epic Systems and Janus v. AFSCME, push us in exactly the opposite direction. So what may look like victories for employers might actually turn out differently in the longer run if the quality of employment relationship deteriorates and workers become more desperate. Those championing these rulings should be careful for what they wish for. Instead, our Labor Day 2018 wish should be for a healthier balance in the world of work.
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…
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.
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.
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.
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.
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.
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), but based on Test #3 this still might not be enough to protect them in this case.]
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. We could then see a continued protest as a protest against this work-related rule rather than as a political protest. Under Test #2, this is now more germane to their employment. That's the good news, in terms of this labor law analysis. But the bad news for the players is that refusing to stand for the national anthem in protest to a requirement that they do so would likely amount to unprotected insubordination. This would be a situation where players refuse to obey this one policy while complying with other policies (e.g., playing the game!)--that is, the players could be seen as selectively refusing to follow managerial directives that they dislike while complying with other directives. Labor law protects workers' solidarity actions, but it doesn't give them the right to pick and choose which managerial directives to follow and which to ignore. So this would likely be 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.
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 propose this definition. If an employer objects and prefers a broader or narrower definition, then a neutral, expert governmental agency investigates and determines the exact definition of the appropriate bargaining unit based on input and evidence. This is exactly what happens in the U.S. private sector (with the National Labor Relations Board empowered by federal law to handle 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 the Minnesota Public Employment 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 decide whether it was best to include contingent faculty with tenure-track faculty, or to define two separate units, based on input, hearings, and the facts of this particular situation at this particular time. 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 a neutral, expert agency has the ability to adjust to changing trends based on input from the relevant parties, hearings, and evidence about the particular realities of each case. 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 on a case-by-case basis will revert back to BMS under sections 179A.04 Subd. 2 and 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.
It’s been an “interesting” week. First, a Googler was firedfor his infamous memo on the alleged biological roots of gender inequality. And now Top Dog, a California hot dog chain, has fired a cook because he was identifiedon social media as a participant in the white supremacist demonstration in Charlottesville. These firings are probably legal in the United States because of employment-at-will, but should they be?
Most workers in the United States are at-will employees. As explained by a Tennessee court way back in 1884, this means that employers “may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.” Employment-at-will is not unlimited. Workers covered by union contracts or similar civil service rules are likely shielded from the vagaries of at-will employment by policies that require a just or good cause for being disciplined or terminated. And there are legal exceptions, such as nondiscrimination protections (you can’t be fired because of your gender or race, for example), and some very specific judicial exceptions. But these exceptions are much narrower than most people believe. Most workers can’t be fired for a reason that violates a specific nondiscrimination law, but otherwise employers generally do not need a good reason to fire someone. So even if the cook has been misidentified, he can still be fired because Top Dog doesn’t need a good reason for firing someone.
But what about the First Amendment protection of freedom of speech and expression? Doesn’t this protect the Google engineer and the hot dog cook? No. The First Amendment protects freedom of expression by restricting governmental limitations on freedom of speech; it does not prohibit private organizations like Google and Top Dog from limiting speech and expression. Contrary to popular beliefs, U.S. workers generally do not enjoy the right to free speech and expression. So the firings of the Google engineer and the hot dog cook were likely legal.
But should they be? In our book Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, Steve Befort and I advocate for broad freedom of speech protections for employees. The effectiveness of the political process as well as respect for human dignity require that employees be able to exchange ideas, complain, attend meetings and demonstrations, and blog or tweet about issues of either public or private concern. With that said, a difficulty with any free speech protection is how to accommodate views that are unpleasant and contrary to our own. These difficulties will never disappear, but currently they are solved in the work arena by giving employers all the power. I think it would be better to have some protections.
And yet, the events of the past week dramatically highlight that these protections should not be unlimited. Rather, there should be statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace absent a legitimate business justification for a specific limitation. If a worker who has been disciplined or discharged can make a case that this stemmed from expressive activity (which isn’t in doubt for the two workers here), then the employer must demonstrate a "substantial and legitimate business reason" for the action to be legally acceptable.
What would this mean for the Google engineer and the hot dog cook? Would their reprehensible actions be protected? Probably not. Behavior that harms the employer’s reputation as well as behavior that causes other employees to be unable to work with him or her are generally seen as giving the employer a legitimate business reason to discipline or fire a worker even when that worker is protected by a just cause contractual provision (as in the United States) or wrongful discharge statute (as in Canada). So firing the Googler and the cook would likely be legal. We do not have to concede all employee rights to freedom of expression in order to denounce the behaviors of the past week.
Admittedly, there might be other circumstances which might make us uncomfortable. Would firing a worker who attended a Black Lives Matter rally be acceptable because racist co-workers refused to work with this individual? Or would it be illegal to fire someone charged with sexual assault outside of the workplace if that worker doesn't work with anyone else (see the Ontario case of Merritt v. Tigercat Industries)? There are no easy answers here, or in many other areas of legal standards. But I submit that some standards are better than none.
So the Google engineer, the hot dog cook, and many other U.S. workers should have greater speech and expression protections than is currently the case. But these protections shouldn’t be unlimited. Granted, this isn’t as efficient as giving employers unilateral authority. As with many other aspects of the employment relationship, we need to find a balance between complex, competing interests.
If one had to come up with a shorthand for the values of the field of employment relations, a strong contender would be “industrial democracy.” For starters, employment relations scholars seek to understand the rules of the workplace. Organizations are therefore seen as industrial governments that can be autocratic, technocratic, or democratic. The employment relations ideals of fairness and self-determination are best served by the democratic form of industrial government (“industrial democracy”) in which unilateral, unchecked managerial authority is replaced by orderly rules, participatory rule-making, checks and balances, and due process in dispute resolution. That (non-Marxist/critical) employment relations scholars see the employment relationship as analogous to a pluralist political society in which multiple parties (e.g., employers and employees) have legitimate but sometimes conflicting interests reinforces the preference for decision-making and dispute resolution processes that respect a diversity of rights and interests.
The main vehicle for delivering industrial democracy has typically been labor unions because imperfectly competitive labor markets and capitalist legal systems favor employers over individual employees. Labor unions that are legally and financially independent of management are the needed counterweight to managerial power, and are therefore necessary for giving employee voice legitimacy through the negotiation and enforcement of collective bargaining agreements. Consistent with this thinking, labor unions have a long history of promoting collective power as a way to bring democracy to the workplace, and to strengthen political democracy by creating independent and responsible rather than subordinate and repressed citizen-workers.
We’ve already seen what happens to employment relations and labor unions when the “industrial” part of industrial democracy disappears. That is, the decline of manufacturing and traditional blue collar occupations have paralleled the steady decline in private sector U.S. union density. Though the relationship isn’t necessarily causal, it’s hard to deny that labor unions have struggled as the nature of the economy and the workforce have shifted, and probably not coincidentally, the size of the field of employment relations has simultaneously declined.
But clearly there should be an important space for post-industrial worker voice as well as for employment relations scholarship. Unions are experimenting with different representation strategies, new institutions (especially worker centers) are emerging to give non-traditional workers a voice, and employment relations scholarship is broadening beyond a traditional focus on labor unions.
But perhaps a new challenge looms…the decline of support for democracy. In “The Democratic Disconnect” (Journal of Democracy, July 2016), Roberto Foa and Yascha Mounk report disturbing trends from individual responses to the World Values Survey. For example, 26 percent of U.S. millennials characterize choosing leaders in free elections as unimportant and 24 percent indicate that democracy a bad way to run a country. These percentages are significantly higher than those reported by older generations. Similarly, 72 percent of Americans born before World War II say that it’s essential to live in a democracy, but among millennials that percentage plummets to 30 percent.
I incorporated these statistics into a presentation I made earlier this month entitled “Two More Problems Facing the Field of Employment Relations, and the Need for Inclusion” at the annual conference of the Labor and Employment Relations Association (LERA). To be honest, I did this primarily to be provocative, and maybe we shouldn’t place much weight on attitudinal surveys. But other indicators keep popping up. In "Why Republicans (and Trump) May Still Win Big in 2020 —Despite 'Everything'," Grover Norquist outlines how the Wisconsin strategy to eviscerate public sector unions (via Act 10) provides a desired model "for Republican political dominance" because "if Act 10 is enacted in a dozen more states, the modern Democratic Party will cease to be a competitive power in American politics" (Ozy, May 28, 2017). In other words, Norquist is championing a blueprint for one-party politics. Other examples consistent with a decline in support for democracy include trends toward greater restrictions on free speech ("Under Attack," The Economist, June 4, 2016) and toward increased support for dictatorships ("America’s Foreign Policy: Embrace Thugs, Dictators and Strongmen," The Economist, June 3, 2017).
The industrial change was a compositional one, not one in fundamental values. But if support for democracy is truly declining, this could be much more damaging for industrial democracy and for the field of employment relations. The tendency to defer to strong leaders in the name of efficiency and expediency is even stronger in business than in government. If democracy isn’t robustly supported in the political arena, it will presumably be even harder to generate support in the workplace. If achieving post-industrial workplace democracy has been a challenge, imagine the challenge of post-industrial post-democracy.
So what's to be done? I don’t think there are any easy answers. We need to monitor these democracy-related trends, and if they are real, they need to be reversed. The industrial democracy values of employment relations continue to need champions. Whether post-industrial or not, the values and value of industrial democracy need to be explicitly recognized, not taken for granted.
I’m no expert on stock options or executive compensation. So maybe you should stop reading, and I should stop writing. But here I go anyway…Target Corporation’s latest executive pay plans were revealed yesterday in its proxy filing with the SEC.
The CEO didn’t get an incentive bonus. Makes sense…Target hasn’t been hitting its financial performance targets. Some other top executives received bonuses for strategic initiatives. I have no basis for doubting that these are valuable strategic initiatives, so this makes sense, too.
But I became more confused when the Star Tribune reported the following in today's paper:
Target's board decided to offer more stock options to executives to help keep pay levels up since the company's recently lowered growth targets for the coming year would likely mean financial and performance goals previously used to trigger bonuses won't be reached in coming years.
So…executives are given incentive pay in order to push their performance. And when those performance targets are not met, the natural consequence is to not receive rewards. Hopefully my personnel economics students can tell you that that’s a fundamental principle of incentives. But what Target’s board seems to have done is to add more stock options so that executives don’t miss out on payouts when the performance targets aren’t hit.
My first reaction was that this seems to be a confused understanding of incentives. It’s not really an incentive if there aren’t consequences for failure (alternatively, a lack of rewards for a lack of performance). So is executive compensation really just a game to give executives lots of pay, and the talk about incentives and performance is just a nice public relations spin?
I’m not sure. So I looked up Target’s proxy statement online. In that document, the compensation committee explained that Target has now committed over $8 billion in store and customer-experience investments. These are likely to reduce profitability in the short run, thus making long-term incentive performance targets unlikely to be achieved. So to make up for the presumed lack of long-term incentive plan payouts, additional price-vested stock options were granted.
The principle here seems to make more sense than I initially thought. Those investments are likely important, and it’s important that they be done well. But why not change the performance targets to reflect new realities? And more puzzling (to me, the admitted non-expert on executive pay), why the continued obsession with stock options? Wall St. is notoriously short-term focused. If these store investments are meant to have long-term payoffs, why magnify the linkage between compensation and stock options? And doesn’t this just further reinforce the incentive for executives to buy back shares rather than invest in the business? This latter phenomena is a major issue with our increasingly financialized world.
Admittedly, designing effective incentive systems are harder in practice than in theory (that's why I teach the theory!). But new approaches beyond stock options seem to be needed.
Earlier this month, a New York Times article “How Uber Uses Psychological Tricks to Push Its Drivers’ Buttons” received a lot of publicity for revealing how Uber is using “behavioral science to manipulate [drivers] in the service of its corporate growth.” A company trying to get workers to act in the interests of the organization? Shocking.
The point of managing workers is to get them to do things that benefit the organization that is issuing their paychecks (or not even issuing paychecks as with diverse forms of slavery and unfree labor throughout history). I can’t be the only one tired of an “everything in the sharing economy is new” mindset. Sure, some of the specific tools might be different in the sharing economy, but the tools for managing workers have always been changing. In the industrial revolution, workers were organized together into factories to be watched more effectively. The famous Hawthorne experiments in the 1920s uncovered the importance of social factors in shaping worker productivity. I’m sure there are examples of various workplaces with real-time information on production goals displayed on a chalkboard for all to see long before there were LED or smartphone displays.
But back to the New York Times article: Good news for industrial relations, bad news for human resources. Why good news for industrial relations? “Underlying the tension was the fact that Uber’s interests and those of drivers are at odds on some level.” There you have it, a central industrial relations premise that employers and workers have some conflicting goals. And when employers have the upper hand (“Uber is continuing apace in its struggle to wield the upper hand with drivers”), we need to take seriously the need for various mechanisms for looking out for workers' interests and well-being, whether through unionization, laws, or other supports. More on this in a minute.
And why bad news for human resources? An MIT Technology Review article followed up the New York Times story with its own headline: “Uber Is Engaged in Psychological Warfare with Its Drivers.” Here is part of what's labeled as psychological warfare: “To stem that tide [of many new drivers leaving before completing 25 rides], Uber officials in some cities began experimenting with simple encouragement: You’re almost halfway there, congratulations!” That’s right, Uber is “exploiting” that well-known human “weakness” of responding to encouragement toward a concrete goal. When encouragement is seen as manipulation, that can’t be good for human resources.
This begs the question as to what people think human resources should be doing. Do we want human resources to simply be an administrative function that hires and pays people? Human resources can and should be doing more. For at least a century, the leading edge of human resources has been trying to take what we know about human behavior (at that time) to find hopefully win-win ways to benefit employees and employers. Can ethical lines be crossed? Certainly. But the principle of using the science of human behavior--rooted in economics, psychology, sociology, and beyond--to design human resources policies that create mutual gain is longstanding and worthy.
I’m not intending to be an apologist for Uber. The rise of Uber and other sharing economy arrangements raise serious issues—too many to address here. As just one example, an academic paper “The Taking Economy: Uber, Information, and Power” by Ryan Calo and Alex Rosenblat discusses a number of ways in which Uber could potentially exploit its drivers. My interpretation of many of these is that they boil down to intentional or unintentional wage theft. For example, a driver may think they accepted 100% of ride requests, but bugs or manipulation may lead Uber to report a lower number, leading to negative consequences for the driver. Or a driver may wait the required 5 minutes to get a cancellation fee, but Uber doesn’t pay because its data shows a lower waiting time, again either due to intentional programming features or unintentional problems with connectivity and the like.
So how to address serious issues that arise out of the gig economy? Meaningful debates over the role of behavioral science in shaping managerial practices should be welcomed. Though rhetoric around "psychological warfare" probably isn't very helpful. Additionally, everyone can probably agree that Uber drivers should be truly free to sign off when they want, though there are different perceptions of what "truly free" means in this context.
And is this freedom enough? Certainly not for issues like wage theft that truly reflect unequal power and asymmetric information (what did you expect an industrial relations scholar to say??). Calo and Rosenblat argue for updating consumer protection laws for the digital age. That might be a good idea, but from an industrial relations perspective, we also should be talking about updating labor law. Rather than relying on government regulation to specify standards, identify violations, and remedy them, let’s figure out ways to empower workers—broadly defined to include Uber drivers and many others in the gig and contracting economy. Then they can act collectively with adequate power to give a meaningful voice to the material, psychological, social, and other concerns they identify as the most pressing in their own particular work arrangements.
It’s always interesting getting a new book, but it’s particularly exciting and rewarding when it’s the product of your own work! So I was thrilled when earlier this month I received a copy of the fifth edition of my textbook, Labor Relations: Striking a Balance, that is published by McGraw-Hill. But some might be thinking…labor relations?...people still study that?
Some dismiss labor unions as relics from a bygone era and therefore consider studying labor relations unimportant for business careers in the 21st century. Yes, unions represent a small percentage of the U.S. workforce, but this is still a large number of workers (> 16 million) in many of the country’s leading companies and in a broad range of occupations, including doctors, nurses, lawyers, writers, professional athletes, and even graduate students. Some local businesses—a Starbucks, a Target or Walmart, or a local hotel, for example—might have some employees who are thinking about unionizing, or at least some managers who are worrying about this possibility. Labor relations are therefore a relevant and dynamic area of study and practice.
All managers and business professionals can benefit from learning about labor relations, whether or not they plan to work in companies where unions are present. Studying labor relations reveals the consequences of poorly managing a workforce. Also, U.S. labor law is very relevant for all workplaces, including nonunion ones. This is because a union does not have to be a large, formal, bureaucratic organization; a union is simply a group of workers acting together to influence their working conditions. So as just one example, it’s illegal to prohibit workers from discussing their wages and benefits with other employers, because this is a basic form of worker self-protection.
Studying labor relations can also help one appreciate the broader historical, social, and political influences on business and thereby help people better deal with the realities of managing a business in a complex world. Organizations are embedded in a complex environment, and at various points in my textbook, market forces, individual emotions, managerial strategies, forms of work organization, constitutional and legal issues, history, questions of human rights, negotiation and conflict resolution strategies, debates over globalization, pressures of financialization, ethical challenges, and other things are all shown to affect work and employee relations. For others who are interested in work and workers, labor relations offer an engaging subject for thinking about the world of work—what we want to gain from work, defining societal objectives for the employment relationship (striving for employment with a human face through balancing efficiency, equity, and voice--of course!), how to measure worker well-being, how work should be structured, the rights of labor, how to define and create public value(s), and other questions that greatly affect the type of society we live in.
On an intellectual level, stylized economic models conveniently assume a tidy world of rational agents interacting in perfectly competitive economic markets; most business courses consider only the objectives of businesses and consumers. In contrast, the study of labor relations considers the goals of workers and society, and it does not shy away from the conflicts that can arise between competing groups, especially in a real world characterized by imperfect competition. Labor relations can therefore help everyone understand and resolve conflict—in the workplace, in business relationships, and in everyday personal interactions. Moreover, an emphasis in my approach to labor relations is on understanding alternative intellectual perspectives rooted in different assumptions about the nature of the employment relationship. This is typically the only place in a human resource management curriculum that students consider alternative models of the employment relationship, such as unitarism and pluralism. In this way, studying labor relations remains essential for understanding HRM.
Lastly, studying labor relations should be intellectually stimulating and even fun. Labor relations have been influenced by everything from violent strikes to religious writings, from libertarians to Marxists, from radical union leaders to great industrialists. Studying labor relations draws on scholarship in industrial relations, management, economics, history, psychology, sociology, political science, law, working class and women’s studies, and philosophy. In my textbook, students encounter two characters named Big Bill, the brazen yet grandmotherly Mother Jones, and the still-missing Jimmy Hoffa—not to mention the colorful language of labor relations, which includes yellow dog contracts, the blue flu, hot cargo, whipsawing, and a narcotic effect. You can even read my book while listening to union folk songs or other songs about the working class. And then take a break by watching movies such as Norma Rae, On the Waterfront, Matewan, Billy Elliot, and Pride. Who says labor relations has nothing left to offer? Far from it.
Controversies around tipping are seemingly everywhere these days. Tip jars seem to be proliferating at the same time as some restaurants are experimenting with banning tips. It’s always hard knowing who to tip and how much, and even more so when traveling abroad. Even the New York Times ran a story on “To Tip or Not to Tip Your Uber Driver” last year, and class action lawsuits prompted Uber to allow drivers to put up signs indicating that tips are appreciated.
But have you ever stopped to think about the origins of tipping and the continued implications for workers who primarily rely on tips for most of their income? As someone who studies work, I’m embarrassed to admit that I had not. Until last week. It was then that the University of Minnesota’s Center for Human Resources and Labor Studies sponsored a provocative presentation by Saru Jayaraman (co-founder and co-director of the Restaurant Opportunities Centers United, Director of the Food Labor Research Center at the University of California, Berkeley, and as the author of Behind the Kitchen Door, a fellow Cornell University Press author), a visit that was facilitated by the Minneapolis worker center CTUL.
The precise origins of tipping are unknown but a key early step seems to be the expectation dating back to at least the 17th century that visitors to private English homes give money to the host’s servants because of the extra work they’ve had to do. These aristocratic origins made tipping seem un-American and un-democratic in the 1800s and early 1900s as those who received tips were seen as servile rather than equals. Indeed, starting in 1909 several states outlawed tipping, though these laws didn’t survive for more than a decade.
What did survive were the racist and sexist foundations of beliefs on who was lowly enough to be exploited by tipping, such as African-American porters and immigrant maids. As nicely summarized by Kerry Segrave in Tipping: An American Social History of Gratuities,
Tipping seems to have started with the traveling aristocracy and spread downward class by class. With the rise of wage labor in industrial capitalism, the number and position of servants declined. That same rise in industrial capitalism brought with it an increase in commercial eating and drinking establishments, hotels, and mass transportation wherein those who received tips—maids, valets, waiters, and so forth were found in large numbers. As a greater proportion of people dined out, stayed in hotels, traveled on trains, and so on, they found themselves in tipping situations. All of those who received tips in the past were regarded as social inferiors at a time when such distinctions were felt to be normal and natural—God’s will. All the services for which tips were given—serving meals, carrying luggage, making beds, drawing drinks, and so forth—were regarded as menial labor. Those legacies of who was tipped for what services remain with us today. (p. 5)
In addition to views on servility, another important legacy of the history of tipping is an enduring debate over whether tips should be included in the calculation of earnings when determining if workers reach at least some level of minimum earnings, . For several decades, the side favoring the inclusion of tips has been winning. Since 1966, U.S. federal law allows a lower sub-minimum wage for tipped workers. Currently, the federal minimum wage for workers who earn at least $30 per month in tips is a measly $2.13. And this has not increased since 1991! If workers do not earn sufficient tips, the employer needs to pay at least the standard (non-tipped) minimum wage, but this entails significant record-keeping and there are high rates of non-compliance.
Many states have their own minimum wage laws that exceed federal standards, but only seven states, including Minnesota, require that tipped workers earn the same minimum wage as others. An eighth state (Maine) recently enacted minimum wage changes that will lead to tipped workers earning the full minimum wage, though there is already a movement to undo this change. And Minneapolis is considering excluding tipped workers from a possible increase in a city minimum wage.
Which brings me back to Jayaraman’s provocative talk passionately arguing that this change being considered by Minneapolis would be a significant step backwards. You might be thinking, why is this a problem? Don’t tipped workers bring home more than the minimum wage? Well…not as much as you might think. Even including tips, tipped occupations are routinely among the lowest-paying jobs in the economy. And according to the Bureau of Labor Statistics, the median hourly earnings for waiters and waitresses in 2015 was $9.25 including tips; the 75th percentile was only $11.65.
But the more fundamental and eye-opening issue revealed by Jayaraman is the pervasive power differential created by a subminimum wage that leads to endemic sexual harassment. Most restaurant servers are women. And when their living depends on earning tips, they are exceptionally vulnerable to unwanted sexualization and sexual behavior because they are beholden to the customer. Indeed, the report "The Glass Floor: Sexual Harassment in the Restaurant Industry" by the Restaurant Opportunities Centers United revealed that 60 percent of women restaurant workers experience sexual harassment, and over 50 percent report that they experience harassment on at least a weekly basis. These rates of harassment are highest in states with the $2.13 minimum wage for tipped employees. As Jayaraman noted, this is a pretty disgusting way to introduce millions of young women to the working world. Consequently, the One Fair Wage campaign is pushing for an end to the subminimum wage for tipped workers—not an end to tipping, but an end to the subminimum wage. I recommend their video "The Time Is Now."
In 1896, Gunton’s Magazine wrote that rather than working for wages, tipped workers are “fawning for favors” and thus, tipping undermines the personal freedom and dignity of tipped workers (July, p. 16). More than 100 years later, this continues to be particularly true for tipped workers who lack the protections of the full minimum wage.
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