Employee Free Choice Act

To At will or not To At Will…

…that is the question! The Employee Free Choice Act is the single most important piece of legislation before Congress since the Emancipation Proclamation!


As a mediator of general civil and employment issues I have witnessed how the present predominant "At Will" doctrine has and is failing both employer and employee. This form of employment relationship is applying 19th century doctrine to the 21st century. There have been a few changes in the workplace since then. I'm an employee who decided years ago that learning basic employee rights not only made sense but was mandatory particularly in an At Will environment.


At-will simply put means an employee can be fired at any time, for any reason or no reason. The employee can also fire the employer for any or no reason. If the employer fires you, your employment with that organization is over. The burden of proving your termination not being justified is on you! If you are employed At Will, your employer does not need good cause to fire you.


However, if you are terminated directly for any reason that violates laws protecting employees against discrimination or retaliation for reporting abuses, At Will doesn't apply. I have experienced and have seen how insidiously employers use At Will termination tactics. For example, Amy Employee is fired for alleged insubordination when in truth she was 55 years old and the company wanted a younger person in that position.


Amy then files a complaint for age discrimination with the Human Rights Commission. The employer refutes her claim and because Amy like most employees did not educate herself about basic employee rights, now faces an uphill battle. Employers have legal teams that know the game very well. The district court gives a "summary judgment" in favor of the employer and now if Amy has legal representation will have to incur further cost to keep her complaint alive.

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The company Amy worked for knows what her salary or compensation was and the likelihood that short of securing a loan to pay legal fees, her complaint like most won't survive past this level. This is due to the economic burden and the lack of preparation in proving the charge. Amy's legitimate complaint dies a horrible death and she struggles to move on disillusioned and bitter.


The supervisor with the help of upper management/ownership or human resources is emboldened by the "victory" to continue to use these tactics as a part of normal day-to-day business practice. Hey, after all it's "At Will" employment right? Then along comes Elaine who has taken the time to learn basic employee rights and is terminated for alleged insubordination, which was a pretext for refusing the sexual harassment by her supervisor.


Elaine files suit for sexual harassment and wins a huge monetary award against the company. I believe the Employee Free Choice Act would significantly remove the employers' ability and will to discriminate and retaliate against the workforce. It would also save the employer financial cost and embarrassment. Every state in America with the exception of Montana is "At Will".


For me the employment coin has had three sides, I have functioned as an employee, manager and business owner. I currently function as an employee and have a passion for educating job seekers and workers about basic employee rights! The Employee Free Choice Act by design creates a true partnership between employer and employee. In my view, "At Will" doctrine has spawned and reinforces an employment environment that is;

(1) adversarial by creating an "us versus them" in the American workplace employment mindset
(2) emboldens employers to maintain, sustain and perpetuate discriminatory employment practices
(3) monumentally wasteful of monetary resources and public goodwill in needless litigation

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According to the language of the Employee Free Choice Act, it will:

(1) give employees greater liberty to form unions and establish employment contracts
(2) punish anti union employer retaliation and harassment
(3) compel employers to deal timely and honestly in negotiating contracts

Money is the number one reason for an employee contract! These contracts may allow for termination of employment by the employer and employee. A Contract of employment is an agreement between an employee and employer that is mutually binding. These contracts specifically outline the duties and functions of the job. Many employment experts point out that a detailed contract of employment can be very good for both sides.


A good contract makes the conditions of the job predictable. Would you buy a business without knowing the exact details? Would you buy land without having ever seen it? When you apply for a loan, you have to read and sign a contract. Most people do not think about taking employment without first getting an employment agreement contract. A job is very important when it comes to keeping a roof over our heads, keeping the lights on, sending the kids to college, etc.


Unfortunately, most people are not aware of the need to have a written contract with the businesses that hire them. The perception is that employers do not want a contract to limit there ability to fire an employee. Why? I believe that elements of corporate America want to maintain an antiquated and out dated system of employment to preserve the ability to discriminate against certain groups and races. Here is the evidence to support that assertion.


In fiscal year 2007, 37.0% of all (EEOC) Equal Employment Opportunity Commission complaints filed were race discrimination based. 30.1% were sex discrimination or gender discrimination based and national origin is 11.4%. The American workplace is comprised of the good, bad and the ugly as any other society in the world.

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In an At Will environment employers routinely utilize different ways to stop workers from trying to form unions for the purpose of negotiating an equitable piece of the overall economic "pie". According to the American Rights at Work organization, "25% of employers fire at least one pro-union worker; 51% threaten to close a worksite if the union prevails; and 91% force employees to attend one-on-one anti-union meetings with their supervisors."


Hmmm, let's see you've just received a negative employee performance review from your supervisor whether justified or not. Now you are obligated under pain of potential termination to meet with that supervisor about you joining a union. According to the AFL-CIO, "Every day, corporations deny workers the freedom to decide for themselves whether to form unions to bargain for a better life.


They routinely intimidate, harass, coerce and even fire workers who try to form unions and bargain for economic well-being. America's working people are struggling to make ends meet these days and our middle class is disappearing. The best opportunity working people have to get ahead economically is by uniting to bargain with their employers for better wages and benefits. Recent research has shown that some 60 million U.S. workers would join a union if they could."


In my opinion, the Employee Free Choice Act will change the employment landscape for the better by obligating employers to recognize unions after a majority of workers sign cards authorizing union representation. This will also make mediation and arbitration mandatory for first-contract disputes. Under the present system even after a majority of workers vote for unionization, companies routinely drag out the process of recognizing the union for long periods of time.


This delaying tactic "waits out" union organizers causing employees to lose interest, creating more turnover and increased intimidation. This Act will provide stronger penalties for violation of the rights of workers seeking to form unions or negotiate first contracts.

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The Employee Free Choice Act will provide for employee majority sign-up instead of the present majority vote system, which is subject to management coercion and harassment. Employers typically use intimidation and threats adversely affecting the workers employment experience by:

(1) manipulation of compensation
(2) changing working conditions
(3) changing work hours
(4) demotion
(5) negative job reviews
(6) termination

These tactics are also synonymous with violations of federal discrimination and retaliation laws. I believe the Employee Free Choice Act will create a true power-sharing environment by reason of collective bargaining agreements that amount to employment contracts for most workers in all industries. In my opinion, the EFCA would foster trust, accountability and respect from both sides.


In my experience as a mediator when two disputing parties reach amicable resolution or a "win-win" they come away with a greater level of understanding and mutual respect for each sides position. Just as the paradigm shift in audio media technology finally forced me to put down my cassette player and learn to use a cd/dvd player, "At Will" employment is another dinosaur whose time has come for a decent burial.

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Yancey Thomas Jr. has functioned as a certified and trained mediator in alternative dispute resolution of employment and general civil issues for over 10 years. He is a national panel mediator/neutral through the Cornell University Alliance for Dispute Resolution with emphasis on employment/workplace disputes. As an employee, he has a unique perspective on how to prepare for the employment experience. Yancey's You Can Learn Basic Employee Rights, Employee Rights Guide and Employee Workplace Rights and Employee Rights Videos sites offers the job seeker and employee must have information on achieving workplace success!

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