Should Your Employer Have to Provide a Reason to Fire You?

This November Coloradans will have a chance to vote on a simple proposition:  Should employers have to provide a legitimate reason before they fire an employee? 

Virtually all states already prohibit firings on the basis of race, gender, age or religion and many other criteria; Colorado's Ballot Amendment 55 would merely boil employer responsibility down to a simple requirement that they provide a "just cause" reason for terminating any employee.  Of course, employers should be able to fire an employee for incompetence, substandard performance, violations of written employment policies, insubordination or other forms of willful misconduct -- and the amendment makes clear that these will still be appropriate grounds for terminating an employee.

The rightwing business lobby is spending quite a bit to defeat the ballot amendment, backed by editorials like this one in the Denver Post, which compares the proposal to turning Colorado into "France."  The hint of truth there is that France, along with every other industrialized country in the world already provides "just cause" protections for its employees.  But then so do almost all of our own country's government and union employers. And most states have more limited versions of job protection for non-union private employees as well.

The Montana Precedent: But why even talk about France when Colorado's neighbor to the north, Montana, has had a statute offering just cause protection for employees since 1987?  A new report by the American Constitution Society (ACS) asks the question, "Did the Big Sky Fall?" when Montana enacted just cause?  And the answer is not only didn't Montana suffer economically, but it's unemployment rate fell from nearly 8% in 1987 down to 3.2% by December 2007. 

Now, no one is arguing that the Montana just cause provision led to this fall in unemployment, since Montana's decline in unemployment paralleled states like Idaho and Wyoming.  But that's the point -- labor protections aren't the determinants of employment levels, despite repeated, overheated claims by the rightwing business lobbies that policies like the minimum wage or just cause spell economic doom.  As ACS writes in their conclusion, "Employers do not put themselves at a competitive disadvantage by legislation that protects their employees from arbitrary and unfair discharge decisions."
What just cause does do is stop bad managers from making arbitrary and biased firing decisions -- and both workers and employers benefit when managers are held accountable for explaining the reasons for termination decisions. France and Montana aren't usually considered to have much in common, but other states like Colorado will only benefit from sharing with them just cause protections for employees.

"Mediated Elections" Process for Farmworkers Moving Forward in California

Reacting to a spate of recent farmworker deaths, both houses of the California legislature have approved a new "mediated election" process for farmworker unions.  AB 2386 will strengthen farmworkers abilities to form labor unions and address workplace conditions.

Six farmworkers have died this summer of suspected heat illness and 15 have died since 2003 despite requirements adopted in 2005 that employers provide minimum heat illness safeguards.  AB 2386, sponsored by Speaker Emeritus Nuňez, proposes a new process that allows farmworkers to quickly vote by mail with two choices on the ballot – to directly vote for the union on the ballot or to vote for a more traditional union election later, with the whole process overseen by a mediator jointly chosen by the union and the employer.

The bill is supported by the United Farm Workers, which likens the process to absentee voting: "Just like an absentee ballot, you get your ballot, you vote at home, you turn it back in," UFW organizing director Armando Elenes said by telephone. "In this process that currently exists ... you're talking about incredible amounts of coercion and intimidation right before the voting starts."

AB 2386 passed the Assembly in May and passed the Senate in a different last month. The bill is currently being reconciled and then will move to the Governor’s desk. Two previous pieces of legislation SB 180 (Migden) and SB 650 (Padilla) that would have given farmworkers the ability to form unions via a majority sign-up process were vetoed last year. Nunez specifically crafted mediated elections to address the Governor’s concerns with the previous bills.

How Traditional Union Election Processes Fail Workers: The California bill addresses the problems that workers typically face when they try to form unions. Since 1975, there have been 151 union recognition elections. In 143 of those cases, 95%, there were findings of employer violations of the law compared to just 8 violations of the law by unions. According to a Cornell University survey of 400 traditional ballot box union elections conducted in 1998 and 1999, 36 percent of workers who vote against joining a union explain their vote as a response to employer pressure. Both Canada and Britain have successfully used card check and neutrality procedures. 

Mediated and similar union election procedures like card check streamline the process by which workers can form unions and provide them the ability to choose their own representatives. According to a recent Associated Press article, “Sen. Darrell Steinberg, D-Sacramento, said helping farm workers organize is the best way to improve working conditions and avoid more field deaths. California could hire dozens more inspectors to enforce regulations designed to prevent heat deaths and not have as much effect.�

The farmworker bill is just following the example of states like New York, Illinois, New Jersey, New Hampshire, Oregon, and Massachusetts which have card check processes for for public employee unions.  Tribal casino workers in New York and California already have the ability to join unions through card check and employer neutrality agreements. Illinois airport workers also have the right to card check elections. The Hawaii legislature passed a card check bill this session, which was then vetoed by Gov. Linda Lingle.  With the rising death toll in California's fields, the farmworker bill is a necessary solution to an urgent problem.

States React to Arizona Court Decision on "Fair Fight Funds" in Publicly Financed Elections

After an Arizona federal district court, relying on a recent US Supreme Court decision, declared a provision of that state’s clean elections law unconstitutional, other states are having to decide how to move forward on clean elections in their states.

Given that this was just one decision by a lower court, the California legislature approved AB 583 on August 30^th, one day after the Arizona ruling.  This legislation, sponsored by Rep. Loni Hancock, creates a public financing pilot program for the Secretary of State race in 2014.  For the law to go into effect it must first be approved by voters next year.  On the other hand, New Jersey legislators overreacted to the decision and Assembly Speaker Joseph Roberts Jr. announced that he would not seek to renew clean elections legislation (AB 100) in the upcoming session. 

The Arizona Court Decision:   In Arizona, the decision focused on the "fair fight funds" that are given to publicly funded candidates who have been outspent by privately funded opponents or third parties.   In a case brought by the rightwing Goldwater Institute on behalf of Republican legislative candidates, the judge in the decision declared that “fair fightâ€? funds restrict the First Amendment rights of privately financed legislative candidates.   

The controversial ruling is based on the US Supreme Court’s recent decision Davis vs. Federal Election Commission which invalidated a separate and distinct provision in federal law, the so-called “millionaire’s amendmentâ€? to the Bipartisan Campaign Reform Act of 2002 (popularly referred to as “McCain-Feingoldâ€?).  That law allowed candidates outspent by self-funded opponents to accept larger contributions than their opponents, and applied unique disclosure and reporting requirements on the self-funded candidate.  The rightwing majority in that Supreme Court decision stated that “leveling the playing fieldâ€? in a political contest is not a legitimate government interest.

Why the Arizona Decision May be Overturned on Appeal:  When the Davis decision was released, some in the election law community took it as an indication that fair fight funds would also fail to pass constitutional muster because, according to their thinking, such funds are specifically designed to level the speech of the various candidates.  However, the Campaign Legal Center (CLC) has put forth a cogent counter-argument that outlines the critical differences between the two provisions and the additional, legitimate justifications for fair fight funds. 

As the CLC points out, the millionaire’s amendment placed significant burdens on the self-financed candidate that fair fight funds do not – accepting lower contribution limits and more reporting requirements.  Fair fight funds in contrast place no additional burden on a privately financed candidate’s speech; they merely amplify the speech of publicly financed candidates.  In addition, the state benefits by limiting campaign expenditures for publicly financed candidates, only giving them additional funds when needed to wage a competitive election.  This is clearly a reasonable way to ration scarce state resources.  The funds also induce participation in the public financing system, for without them participating candidates would be engaged in a type of unilateral disarmament.

The district court ruling will have no immediate effect in Arizona because the judge declined to grant a temporary restraining order to prevent the disbursement of fair fight funds citing the nearness of the upcoming election.  A hearing will be held in early October regarding a permentant injunction.  Whatever the outcome at the district court level, the issue of the constitutionality of fair fight funds will almost certainly be appealed to the US Supreme Court.

California and New Jersey Clean Elections Campaigns:  California's law is still waiting for the Governor's signature and voter approval, but it retains its fair fight provision, granting matching funds to outspent publicly financed candidates.  Funding for the program comes from increased lobbyist registration fees and a voluntary tax-form contribution. 

In New Jersey, it's unfortunate that Speaker Roberts has shelved the legislation, since he has been the sponsor and major legislative promoter of clean elections in New Jersey from when the first pilots were established in 2005.  The Arizona decision was in accord with a legal opinion from the New Jersey Office of Legislative Services, which also predicted that fair fight funds will be held unconstitutional under Davis.  Still, a press release issued by the Speaker stated that clean elections would merely be “on hiatusâ€? and lamented that “… an activist court half a continent away has thrown such a huge obstacle in the way of a good government ethics reform that was making real headway in changing politics in New Jersey for the better.â€? 

Given the fact that the Arizona decision has no legal bearing on New Jersey, and that many courts have upheld fair fight funds in the past, many were perplexed at the Speaker’s statement.  Multiple commentators have posited that the Arizona decision is a fig leaf for abandoning a issue that was being heavily attacked by opponents.