The first answer most of us are likely to give to this question is: from the Constitution.
Every one in the United States likes to say to himself or herself, "I've got my rights." It's natural to suppose that our constitutional rights travel with us wherever we go.
Unfortunately, this answer is wrong. The Constitution protects us only from action by the government. It does not protect us from private employers. If you work for a city, or a state government, or the Federal government, your employer is the government and you can claim constitutional rights to free speech, to freedom from unreasonable search and seizure, to due process, to equality before the law. However, in the private sector the employer has no legal obligation to respect your constitutional rights.
In the private sector, when you punch in you leave your constitutional rights in the glove compartment of your car. In the private sector, you do not have a constitutional right to free speech. If your employer makes a product which is unsafe, and you "blow the whistle" on him by telling the press, the Constitution will not protect you from being fired. (There may be a law that protects you, however.) Likewise, in the private sector, you are not innocent until proven guilty. When an employer disciplines or discharges you, you don't stay on the job until the grievance is arbitrated. Instead, you are off work and lose pay, and get the money back only if you win the grievance.In the private sector the Constitution does not protect us, but there are two other sources that give us some of the same protections we are entitled to outside the workplace.
Rights Protected By Contract
One source of rights in the private sector is a contract. In non-unionized shops it may be possible to argue that an exchange of letters between the employer and an employee, or an employee handbook or personnel manual distributed by the boss, constitutes a contract. At present these are ordinarily questions of state law, so that your rights under this kind of contract will vary from state to state.
A collective bargaining agreement gives you contractual rights in a unionized shop. Seniority, for instance, comes from this source. Seniority provides partial equality before the law. It ensures that the person who has worked longest will be fired last, but it does not mean that foremen will be governed by the same rules as hourly employees. If an hourly employee starts a fight, he or she is likely to be fired because of a shop rule against fighting. But that rule doesn't necessarily apply to the foreman when he starts a fight. Thus the union and the collective bargaining agreement create a halfway citizenship, but not a full citizenship.
Keep in mind that rights created by contract can also be changed by contract. For example, many workers in the 1930s did not favor a strict seniority system when it came to layoffs. They negotiated work-sharing arrangements so that if the shop was working at 80 per cent of capacity, every one went down to four days, instead of putting younger workers on the street. My own Legal Services office did the same thing when President Reagan cut our budget 20 per cent at the beginning of the 1980s.
Rights Protected By Law
A second source of rights in the private sector is Federal and state law. These rights were created by struggle. Thus the eight-hour day was finally recognized by Congress in the Fair Labor Standards Act (the "Wages and Hours Act") of 1938. The struggle for the eight-hour day began at least as early as the 1880s, when the whole labor movement in the United States took part in political strikes on its behalf.
A partial list of rights recognized by Federal law includes:
1. The right to engage in concerted activity for mutual aid and protection (Section 7 of the National Labor Relations Act).
2. The right not to be enjoined by Federal courts when engaging in such concerted activity (Section 4 of the Norris-LaGuardia Act).
3. The right to refuse to perform abnormally dangerous work (Section 502 of the National Labor Relations Act, and the Occupational Safety and Health Act).
4. The right to equal pay for equal work (the Equal Pay Act).
5. The right to a minimum wage and to overtime pay after forty hours work in a week (the Fair Labor Standards Act).
6. The right not to be discriminated against because of race, color, religion, sex, national origin, age, or disability in hiring, promotion, or discharge (Title VII of the Civil Rights Act and other laws).
7. The right to free speech about union affairs, and to a minimum of due process when disciplined by a union (Title I of the Labor Management Reporting and Disclosure Act).
8. The right to pension security (the Employee Retirement Income Security Act).
The Idea That Rights Can Be "Waived"
Courts will enforce a so-called "waiver" (surrender) of rights under some circumstances.
Individuals who settle an administrative charge or law suit against the employer are often asked to give up certain rights, such as the right to bring further legal action. Always consult a lawyer before waiving your rights as an individual. Never give up rights that are "prospective," that is, that do not yet exist. For example, never give up a right to bring an occupational disease claim that does not yet exist at the time you are asked to make your waiver.
Individuals who apply for early retirement are sometimes asked to waive rights. For example, in 1993 General Motors offered hourly workers an early retirement ("special accelerated attrition") agreement. In order to retire under the agreement, a worker was forced to sign a statement that said in part:
There is no doubt that this agreement was illegal. State law prohibits an employer from requiring an employee to give up the right to file a workers' compensation claim, for instance. But GM, supported by the UAW, required workers who wished to retire under this agreement to agree to the above quoted waiver.
Rights can also be waived or given up by collective bargaining. The leading example is the right to strike.
Close to 100 per cent of collective bargaining agreements contain a promise not to strike or slow down during the duration of the contract. You might wonder how this is possible, since no less than three provisions of the National Labor Relations Act (Sections 7, 13, and 502) expressly protect the right to strike.
The answer is twofold. The courts often say: "You have the right to strike, but if you choose to give it away by ratifying a collective bargaining agreement with a no-strike clause, you have the right to give it away, too." This is misleading because the ordinary worker has very little control over what goes into his or her collective bargaining agreement. It is pure fiction to say that union members have knowingly or voluntarily given up, or "waived," the right to strike.
Also, the courts often say: "It's all right to take away your right to strike because now that you have a union, you don't need it any more." The assumption here, which the United States Supreme Court has put in so many words, is that Congress gave workers the right to strike and picket only to help them form unions. Once unions come into existence, according to this theory, workers should be prepared to let the union represent them in the grievance procedure rather than continuing to take direct action on their own behalf.
This argument is legally erroneous, because there is nothing in the text or legislative history of the National Labor Relations Act to justify the conclusion that the right to concerted activity ends when collective bargaining begins.
More important, it is not in the self-interest of workers to give away their right to direct action, including the right to strike. In fact the rest of this book will try to help you hang on to (not give up) your right to engage in concerted activity for mutual aid and protection: your right to practice solidarity.
