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crossposted from unbossed

That is not a hypothetical when it comes to workplace rights. It is hard to think of a workplace law that judges have not undermined.

That means that the millions and millions of us who depend on a job for our livelihood are not getting the protections that the laws on the books are meant to give us. Given how important work is, this is a serious problem that affects every person in this country. It is a problem that deserves to be on our radar screen . .  and yet it isn't.

It is possible to take action to change this situation, and that is most of what I want to talk about. But first, we need to look at the problem.

First, let me give you some quick examples.

The Americans with Disabilities Act
Last week, I wrote about efforts by Congressman F. James Sensenbrenner, Jr., (R-Wisconsin), an author of the Americans with Disabilities Act, to restore the rights Congress intended disabled Americans to have. In decisions after decision, the Supreme Court has chipped away at the ADA and made it a virtually useless law. They have limited the definition of what a disability is and created impossible to meet procedural and definitional barriers, to name just a few.

Family and Medical Leave Act
The FMLA is a critically important piece of legislation, even though it fails to provide important rights. What it does provide though is a right to get your job back if you need to take off time for your own medical problems or to take care of a family member. It does not guarantee paid leave, but by protecting your right to get your job back it removes one worry at a time when sickness in the family means you have a full plate.

But the courts have not been kind to the FMLA. In decision after decision, they have cut back on the rights set out in the law. Workers now have all sorts of notification requirements, and employers feel free to ignore FMLA requests. This point is amply demonstrated by a recent case in which Blue Cross denied a worker FMLA leave to care for her sick toddler. I discussed the case and its implications recently in another context, one that is equally serious. link here.

Whistleblower Protection Act
The Whistleblower Protection Act of 1989  was enacted to protect the American public from bad actions by government agencies. The point of the law is to provide public workers with protections that give them the spine to blow the whistle:

SEC. 2. FINDINGS AND PURPOSE.
     (a) FINDINGS- The Congress finds that--

           (1) Federal employees who make disclosures described in section 2302(b)(8) of title 5, United States Code, serve the public interest by assisting in the elimination of fraud, waste, abuse, and unnecessary Government expenditures;

           (2) protecting employees who disclose Government illegality, waste, and corruption is a major step toward a more effective civil service; and

           (3) in passing the Civil Service Reform Act of 1978, Congress established the Office of Special Counsel to protect whistleblowers (those individuals who make disclosures described in such section 2302(b)(8)) from reprisal.

     (b) PURPOSE- The purpose of this Act is to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by--

           (1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and

           (2) establishing--

                 (A) that the primary role of the Office of Special Counsel is to protect employees, especially whistleblowers, from prohibited personnel practices;

                 (B) that the Office of Special Counsel shall act in the interests of employees who seek assistance from the Office of Special Counsel; and

                 (C) that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.

But in a comment to a recent Daily Kos cross-post of mine  you will see that Deep Harm raised a similar problem with the WPA. Deep Harm said:  

The Whistleblower Protection Act.  The only category of civil suit less likely to succeeed in court than a disrimination case is the category of pro se complaints by already-convicted prison inmates.  Even when discrimination cases win, the judge reduces the jury's award more often than in other kinds of cases.

The judiciary (particularly administrative judges) frequently makes decisions that seem unfair. But, another part is the failure of Congress to pass solid legislation.  Too often, what emerges as law is a composite of hastily drafted legislation with last minute amendments created to appease one faction or another more than to achieve a sensible result.  Not until a law is reviewed in courts does it receive thorough scutiny of the wording and implications.

In fact, she is amply correct. If you don't believe me, have a read of a wonderful book by C. Fred Alford, Whistleblowers: Broken Lives and Organizational Power (Cornell University Press, 2001).

Alford gives chapter and verse on how whistleblowers suffer for doing what their conscience says they must do and what the law says is a protected right. Whistleblowers suffer

devastating reprisals on whistleblowers, including ostracism, reprimands, forced transfers, referral to psychiatrists, assignment to menial duties, dismissal and blacklisting.

link

National Labor Relations Act
And the law that Congress enacted to protect the rights of workers to make common cause, including talking about their working conditions.  link  and link  

The NLRA is a majestic law that was intended to radically change the power relationship of employers and employees and to do so to preserve this country. It intended to do this by promoting collective bargaining, something workers had fought for  unsuccessfully for centuries.  

You can imagine then that with this as its goal, it would be a particular target. In fact, that is exactly what has happened and continues to happen. Equality of bargaining power and the right to bargain collectively is still the stated goal of the NLRA, but judges have chipped away at the rights there and sometimes even taken a meat axe to them. The law on the books is still the same, but the way courts apply it is not.

Here is just one example.

The National Labor Relations Act says that the right to strike shall not be abridged, and it says that workers who make common cause to improve working conditions, which includes strikes, are protected by law. Two years after the NLRA was enacted, the Supreme Court gave employers the right to undermine strikes by firing strikers. Oh, they didn't call it firing, but when an employer permanently replaces you for striking, it is hard to see the difference.

And there are so many more examples. But enough with pointing out the problem. Let's take action.

So what are we to do?
If every time Congress passes a law that protects workers, must we just resign ourselves to its destruction?

There is hope, but it is not easy. It demands a serious commitment, and the liberal blogosphere needs to be on board with this program. Our jobs, our livelihood, our country, our welfare all depend on it.

See part II for more.

Originally posted to shirah on Wed Apr 18, 2007 at 07:22 AM PDT.

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