Regular workers need security of ‘Just Cause’ protections

 Bill Knight column for 10-21, 22 or 23, 2021

Bad managers enjoy the freedom of being able to discipline workers “At-Will.” Good workers appreciate “Just Cause” protections.

At Will management empower bosses to be free to be unfair or arbitrary, with workers vulnerable to being punished for being sloppy, a Brewers fan or no reason whatsoever – except in contracts such as collective bargaining agreements, personal-services pacts, Civil Service jobs, or instances related to discriminations based on gender, age, race, able-ness, etc.

In the U.S., 49 of the 50 states operate under the At Will principle (excepting Montana), and 66% of Americans work under it, according to J.H. Verkerke in 2009’s “Labor and Employment Law and Economics.” However, legislators never passed an At Will law. It resulted from court rulings, deriving from an 1877 paper by lawyer and Vermont legislator Horace Gay Wood (titled “Master and Servant”!).

In Illinois, the legislature has a pending measure to become the second state ensuring job security.

“At-Will employment has been a longstanding problem in the state and At-Will termination has long endangered the stability of our communities,” said State Rep. Carol Ammons (D-103rd), sponsor of the Employment Security Act (House Bill 3530); Sen. Celina Villanueva (D-11th) is its sponsor (Senate Bill 2332).

Ammons and Villanueva’s measure would require written explanations for worker discipline or discharge, ban “constructive discharges” (where workers are forced to “resign”), provide for severance pay upon dismissal, give fired workers the right to sue employers, and more – creating a “Just Cause” law.

Basically, Just Cause says workers can only be punished for documented reasons tied to poor job performance. preventing unfair retaliation and disguised discrimination.

Most of the world’s employers operate under Just Cause, which generally has seven “tests,” says attorney and author Robert M. Schwartz – There must be prior notice of workplace rules; rules or orders must be reasonable and recently enforced; investigations are required; inquiries and/or hearings must ensure due process; allegations must be proven by substantial evidence; enforcement of the rule or order must apply equally to all workers; and penalties must be progressive (i.e., with at least one step letting workers improve), appropriate, and consider mitigating circumstances.

“Just Cause protection marks a sharp dividing line between union and At Will workers,” Schwartz writes. “With few exceptions, employers may not dismiss union workers unless they engage in egregious or repeated misconduct. On the other hand, employers can fire At Will employees for a single mistake, an argument with a supervisor, an unintentional violation, off-duty conduct, or even for reasons that are patently false.”

The National Employment Law Project and Chicago’s Raise the Floor group report that 37% of Illinois workers are unfairly discharged and 42% have been fired for no reason.

Elsewhere, New York City last year passed a Just Cause ordinance for 67,000 fast-food workers, and Philadelphia the year before did the same for about 1,000 parking-lot attendants.

In Springfield, lawmakers have passed progressive legislation: approving a Clean Energy plan, abolishing cash bail, legalizing recreational marijuana and a increasing the minimum wage. But since April, SB 2332 version has been in the Assignments Committee and HB 3530 in the Rules Committee.

Illinois unions, policy organizations and community groups working as the Stable Jobs Now coalition are lobbying for Just Cause. Its unions include the Amalgamated Transit Union, Chicago Teachers Union, SEIU, and the United Electrical, Radio and Machine Workers of America. But the state AFL-CIO hasn’t signed on.

“The American labor movement has this weird, total exception to the rule that we base this right in collective bargaining,” said Shauna Richman, a Just Cause advocate. “It’s time to get over that. This really should just be a law. It sucks up so much time in collective bargaining. Also, workers know they will be fired for organizing a union. Let’s make it a law that you can’t be fired unless it’s for a good reason, and then we’ll get more unions.”

Organized labor should back the campaign, says Michael Migiel-Schwartz, a Harvard Law School student with the Labor and Employment Lab. He says more unions should join the effort because:

* it takes a little-known need and helps make it acceptable, like labor did with “Fight for $15”,

* the public supports the idea (67%, according to a May poll by Data for Progress), so it broadens grassroots involvement, and

* it could encourage non-union workplaces to organize without fear of reprisal.

 

“Rather than taking away an incentive for workers to unionize, workers under a Just Cause standard will have less to fear over asking for a wage increase, communicating safety complaints, or organizing a union,” Migiel-Schwartz says. “Efforts to enact Just Cause will force employers to speak openly regarding how much dominion they want to wield over employees.”