The Vanishing Employee: Putting the Autonomous Dignified Union Worker Back to Work
This paper was presented at a symposium, hosted by the Florida International University Law Review during March 2011 to celebrate the 75th anniversary of the enactment of the National Labor Relations Act. Dean R. Alexander Acosta, himself a former Board member, tasked the panelists not only with predicting the Board’s future but also with commenting on the extent to which the Board’s fate is simply to wither away. I chose to demonstrate that the Board and the NLRA are not simply withering away but have been repressed by all three branches of government. I chose to demonstrate that proposition through an historical account of the changing definition of the statutory term, “employee.” That account reveals what I call, the vanishing employee.The NLRA’s definition of employee is significant because it is the gateway to all worker protection under Section 7, which includes the fundamental rights to self-organize, bargain collectively, and band together for mutual aid or protection. Although the Supreme Court has characterized that statutory definition as “striking[ly]” broad, all three branches of government have worked together to narrow that definition and, in doing so, narrow the gate through which meaningful opportunity for free association resides.This paper examines that statutory definition with reference to (1) the plain language, (2) the legislative history, (3) congressional amendment, (4) Supreme Court interpretation, and (5) administrative interpretation. I begin with a deconstruction of the statutory term employee and show that there is an affirmative definition and a negative definition. Building on the work of labor law theorists such as Marion Crain, Ellen Dannin, Matthew Finkin, Harry Hutchinson, Risa Lieberwitz, Ken Matheny, Marley Weiss, among others, I show that, although the plain language of the affirmative part of the definition does in fact broadly include “any employee” and expressly “shall not be limited to the employees of a particular employer,” that definition has been narrowed by all three branches of government. First, Congress added two important exemptions to the definition – independent contractors and supervisors. Second, the Bush II Board, based in part on recent Supreme Court precedent, has interpreted those exemptions, especially the supervisory exemption, in a way that punches a gaping hole in an otherwise broad definition. Third, notwithstanding court precedent, the Bush II Board more recently attacked the affirmative definition of employee by removing wholesale classes of employees from the statutory definition, merely because, in its view, those workers did not have “the economic relationship contemplated and protected by the Act.”I end by arguing in favor of congressional amendment, in particular, by eliminating the supervisory and independent contractor exemptions. In my view, eliminating these exemptions is the best way to maximize worker autonomy and dignity. Recognizing that congressional amendment is unlikely, I describe several other more modest changes that could protect more workers. For example, administrative and court interpretation of the NLRA in light of its purpose – to promote “the practice and procedure of collective bargaining” – would go a long way toward eradicating some of these problems. I also touch upon the experience of Canada to briefly consider whether distinguishing between independent and dependent contractors might broaden the definition of employee by narrowing those who are currently exempted as independent contractors. I conclude by arguing that the best chance for revitalizing workplace participation will be to ensure organization rights to those who meet the statutory definition through the internet and other social networking activities.
Not a Limited, Confined, or Private Matter: Who is an Employee under the National Labor Relations Act
Congress defined employee under the National Labor Relations Act to say that an employee is any employee and is not limited to employees of a single employer. It was the intent of Congress that worker rights and labor organizing was to extend beyond the scope of a single employer, because only in this way could the bargaining power of employers and employees be equalized. Only protections based on such a broad definition could permit employees to overcome the inequality of bargaining power that was created by corporation law.The courts, however, have not only not enforced the plain meaning of the statute nor the intent of Congress, they have gone so far in some cases as to define employee as limited to the employees of a single employer. The common law system of judicial decision-making means that judges continue to veer farther away from the rights Congress intended to provide employees. This article explores that legislative history and current cases pending decision in which the question of the definition of employee is critical to the outcome.
Analysis: The Agenda 2007 Proposals: Evolution or Revolution?
On 10 February 2004 the Commission published its proposal for the financial perspective 2007-2013. A week later it adopted the third report on economic and social cohesion. These two documents form the basis of the so-called ‘Agenda 2007 reforms’. They will be the greatest challenge for the enlarged EU after the intergovernmental conference, since they will determine the financial basis for EU policy-making until the middle of the next decade. The Agenda 2007 proposals certainly hint at courageous reforms, because they place a previously unheard-of emphasis on performance and quality. Under the proposals, structural operations should generate value for money, and the funds should focus on projects which generate added value at a European level. Overall the Commission’s proposals point in the right direction, because they balance, on the one hand, solidarity for the new Member States and weak regions in the old Member States with, on the other hand, investments in future tasks. Moreover, they constitute a paradigm shift. For the first time, the Common Agricultural Policy will not be the dominant expenditure category. Now it is up to the Member States to examine the proposals politically and find a compromise between sometimes very divergent interests. It is to be hoped that, during the debate over expenditure limits and division of funds, national interests do not outweigh European interests.