State Regulation and the Workplace




Workplaces are highly regulated spaces. As Edelman and Suchman (1997) state, they ”are immersed in a sea of law.” In regulating the workplace, the state attempts to control the behaviors of employers, managers, and workers using a system of incentives and penalties and a variety of policy tools. In the US, the government has at least some say – and often much say – over discrimination in the workplace, union activities, workplace safety, wage levels, hiring practices, work hours, employee leaves, plant closings, and compensation for injuries at work. The two main areas of workplace regulation in the US are employment law and labor law. Employment law encompasses anti discrimination law, affirmative action policy, and equal pay law. Labor law, on the other hand, regulates trade union organizing, collective bar gaining between workers and employers, and strike action by workers. Both areas have received substantial attention by researchers in sociology as they try to make sense of the law’s development over time and its impact on employment relations.




Employment Law

The 1960s were a watershed in US employment law. In 1963 the Equal Pay Act was passed, requiring employers to pay men and women equally for equal work. And in 1964, in response to the Civil Rights Movement, Congress enacted the Civil Rights Act, which greatly broadened the state’s ability to restrict race and sex discrimination, including in the workplace. Prior to this time, workplace discrimination against women, African Americans, and other minorities was commonplace. Employers routinely refused to hire blacks, ethnic minorities, and women for a variety of jobs, and even when hired these social minorities were segregated into occupations and jobs deemed culturally “appropriate” for them (Hodson & Sullivan 2002). Title VII of the new law made it unlawful for employers to treat employees differently because of their ”race, color, religion, sex, or national origin.” The law also established the Equal Employment Opportunity Commission (EEOC) to oversee the law’s enforcement. Title VII fundamentally altered the cultural environment of workplaces by instituting due process rights. But as Reskin (2001) points out, enforcement of Title VII has often depended on the perseverance of the victims of discrimination to carry their cases forward. This stems primarily from underfunding of the EEOC. In addition, the nature of Title VII and of EEOC procedures obscures the intersectionality of discrimination by requiring that plaintiffs choose among their social identities when filing cases (Crenshaw 1989). The unique experience of a black woman, for instance, can be overlooked if, as the law requires, she must identify herself as either female or African American to file her case.

Another key development in anti discrimination law in the 1960s was the passage of Executive Order 11246 in 1965 by President Lyndon Johnson. This affirmative action policy, as it has come to be known, requires that a company doing business with the federal government ”take affirmative action to ensure” that employees and applicants for jobs are not discriminated against with regard to ”race, color, religion, or national origin.” In 1967, Executive Order 11375 included ”sex” in its affirmative action provisions. Affirmative action policies are thus proactive workplace regulation, mandating that companies with governmental contracts establish workplace policies that give preference, particularly in hiring, to qualified female and minority applicants in order to address the effects of past discrimination. The policies, however, have been controversial and support for them has declined over time among whites (Sears et al. 2000). Moreover, many workplace policies have called for only minimal adjustments in hiring and promotion practices and thus have had a limited impact in reducing occupational race and sex segregation (Reskin 1998). But research indicates that the policies have helped some workers, particularly women and minority men seeking professional and managerial positions, where most affirmative action programs have been targeted (Tomaskovic Devey 1993). Research also shows that the effectiveness of affirmative action depends on the organizational resources devoted to the programs, the commitment of company leaders, and the duration of the programs’ existence within a business (Konrad & Linnehan 1999).

Research on anti discrimination law has also explored the impact of these policies on race and gender wage inequality. Wage data document that an earnings gap continues to exist between men and women and among racial and ethnic groups, with white men being substantially advantaged (Padavic & Reskin 2002). Various studies, however, indicate that the 1960s shift in employment law helped to narrow the disparity. McCrone and Hardy (1978) find that the racial wage gap declined significantly under Title VII. Burstein (1979), using indicators of EEOC funding and the number of lawsuits decided in favor of the plaintiff, shows that women’s and minority wages increased with greater agency enforcement, resulting in greater equality. A number of US states have enacted comparable worth or pay equity laws that go beyond the 1963 Equal Pay Act and stipulate (for public employers but as yet not for private employers) that compensation systems must pay workers equally for comparable, and not just identical jobs. The US federal government, however, has not yet enacted comparable worth legislation. Instead, federal comparable worth law has developed as a result of wage discrimination suits filed within the courts (Guthrie & Roth 1999).

A more global perspective finds affirmation of equality in the workplace in both the United Nations’ Declaration of Human Rights and its International Covenant on Economic, Social, and Cultural Rights (see especially Article 7). The International Labor Organization as well states in its Declaration of Philadelphia that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.” Most western countries today have adopted such principles in their body of law. Some recent developments include Northern Ireland’s Fair Employment Act of 1989 (which places restrictions on discrimination based on religious affiliation) and Germany’s Frauenforderungs gesetz of 1994 and Israel’s Civil Service Act of 1995, both of which provide for fair gender representation in government service (Ben Israel 2001). Other nations have also made important strides in establishing equal employment law. China enacted a law to protect women’s right to employment, and India and Belize now have policies to prevent sexual harassment in the workplace (United Nations Office of Public Information 2000).

US Labor Law

If the decade of major change in US employment law was the 1960s, in labor law it was the 1930s. In 1935 during the Depression, Congress passed the National Labor Relations (Wagner) Act, which institutionalized a system of collective bargaining and provided workers with a legal right to organize unions and to strike. The law also established the National Labor Relations Board (NLRB) to adjudicate workplace disputes. The US Supreme Court upheld the constitutionality of the new law in 1937. Prior to this time and largely through the courts, the government had regularly impeded attempts by workers to organize unions and mount strikes.

Both state and federal judges routinely issued labor injunctions to end strikes and enforce ”yellow dog” contracts or contracts which a worker signed to gain employment but in which he or she was also compelled to agree not to join a union. The courts’ use of injunctions significantly restricted the collective activities of labor (McCammon 1993b). In 1932, just before enactment of Wagner, the Federal Anti Injunction Act was passed. The anti injunction law was a response to labor and legal reformers who called for an end to the courts’ constraints on labor’s actions. The anti injunction act barred the federal courts from issuing injunctions to halt strikes; however, it did not go so far as to protect the right of workers to strike. This came with Wagner. The Wagner Act, a New Deal law, was passed in a period of acute unemployment and economic stagnation, but also one of increasing labor militancy. Workers struck to force employers to recognize their unions. But even with passage of Wagner, strikes continued, largely because employers ignored Wagner, refusing to recognize unions and participate in collective bargaining. Not until the Supreme Court affirmed the law in 1937 did employment relations gradually begin to calm.

The 1937 decision of the Supreme Court redirected the actions of employers away from attempts to repeal the law and away from open resistance to unionization in the workplace and instead toward establishment of bargaining relations with organized labor. In short, a new legal regime of employer-labor relations was instituted (Bowles & Gintis 1982). Prior to the New Deal era, the government’s legal policy concerning worker collective action was generally one of repressive intervention,” as it wielded the injunction to halt worker actions (McCammon 1993a). With passage of Wagner and the Supreme Court’s affirmation of it, however, the state’s legal policy became one of integrative prevention.” The law granted workers legal rights in their interactions with employers, viz., the right to organize, bargain, and strike. But the law also constrained these rights. The subsequent development of labor law after pas sage of Wagner, with the enactment of the Labor Management Relations (Taft Hartley) Act of 1947 and a number of pivotal Supreme Court decisions (e.g., Lincoln Mills, 1957; ”Steelworkers Trilogy” cases, 1960; Boys Markets, 1970; Buffalo Forge, 1976), meant that unionization and collective bargaining were increasingly regulated and the circumstances in which workers could strike became particularly limited (Wallace et al. 1988). While strikes over wages between labor contracts were legally permissible, strikes over issues that challenged employer control in the workplace were typically defined as illegal.

Moreover, the developing law provided employers with important tools for resisting worker organizing and collective action (Gross 1995). During union certification elections, for example, the law grants long delays between the filing of a petition for a union and the actual election, and whereas employers have free speech rights to communicate their opposition to a union with employees while employees are at work, union access during working hours is greatly restricted (Bronfenbrenner 1994). The law also allows employers to hire permanent replacements for striking workers, so that strikers may not be able to retain their employment. And although the law does not permit employers to discharge workers for attempting to unionize, the law’s minimal penalties for such action can make the strategy viable for some employers (Comstock & Fox 1994). Surveys suggest that employer intimidation of unionizing workers is more common among low wage, minority, and female workers (Comstock & Fox 1994). A number of researchers provide evidence that these provisions in labor law are at least in part responsible for the decline in the labor movement in the US today (Sexton 1991). Given that unions have played a significant role in increasing working class wages and augmenting the size of the middle class in the US, their decline and the role of state regulation in that decline are likely to be important contributors to rising economic inequality in the US today.

Antagonistic labor-employer relations are not limited to the US, but most Western European nations generally have a history of more harmonious relations. Collective bargaining exists in the UK and France similar to that in the US, although strikes are more common in France when bargaining breaks down (Hodson & Sullivan 2002). In Germany, Norway, and Sweden, workers have greater power in work place decision making, through works councils (composed of workers and management) in unified Germany and automonous work groups in the Scandinavian countries (Servais 1998). Arthurs (1998), however, suggests that in most western nations collective bargaining laws are no longer being strengthened as these countries’ economies adapt to competitive pressures in the global economy. He points out that only in ”newly reconstructed states,” such as South Africa, South Korea, and in Central and Eastern European nations, have labor’s legal rights been augmented in recent years.

References:

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