Legal Commentary

Matt Bodie asks a smart question about the many lawsuits I write about in my book, The Big Squeeze: Tough Times for the American Worker.

I write about various types of litigation that seek to vindicate the rights of mistreated workers, for example,  class-action lawsuits against off-the-clock work, Fair Labor Standards Act lawsuits for failing to pay the minimum wage and overtime, N.L.R.B. charges against companies that fired workers who were campaigning for a union, various complaints filed with OSHA and the EEOC.  Professor Bodie poses an excellent question:  Did these legal actions successfully vindicate workers' right or were they exercises in futility?

I devote a chapter to the horrifying (and ennobling) story of Kathy Saumier, a courageous worker at a plastics factory  just outside Syracuse. She led the efforts to protect and vindicate workers' rights after four of the factory's 190 workers had fingers amputated over a 13-month period.  Saumier led a drive to unionize the plant and filed complaints with OSHA and the EEOC complaint.  She accused the company of discrimination because 19 of the top 20 jobs on the factory floor were held be men, while women held more than 90 percent of the worst, lowest-paying jobs.  So what did Saumier get for speaking out? The company not only fired her, but sought to disgrace her by accusing her of sexually groping two male workers right on the factory floor.

The United Steelworkers, which was seeking to unionize the plant, filed an NLRB complaint to have Saumier reinstated, and thanks to intense news media attention, the NLRB sought to act hastily in the case. Nontheless, it took 14 months before Saumier was reinstated, and that was only after a federal district court judge (acting on a motion for an injuction) ruled that the company had concocted the sexual charges against her as a pretext to get rid of her.

In a sense, Kathy's rights were vindicated by the reinstatement. But the fact that the company fired her -- and the fact that she was gone for 14 months -- effectively killed the unionization drive. Most of the factory's workers became too scared to talk up the union when they saw their courageous, rank-and-file leader get fired (capital punishmenton the job). So in a sense, the NLRB reinstatement was too little, too late.

I also tell the story of a nursing home aide who led a unionization drive in Florida. He, too, was fired on concocted charges, with various levels of judges finding that management had fabricated the story that he was fired because he had sought to choke a nurse. It took six years of litigation before he was ordered reinstated, and his reinstatement came only after the U.S. Circuit Court of Appeals in D.C. ruled on the matter, upholding the NLRB. Incredibly, even though the nursing home aide had been fired six years earlier, the nursing home had to pay just $1,757 in back wages.  The back wages were so small because the nursing home aide had found another job soon after he wsa fired (as a translator for Catholic Charities) and all the wages on that job were subtracted from the years of back pay the nursing home would have owed. During those six years, the unionization drive had fizzled out. (For the nursing home, the $1,757 was a smart investment to kill off a unionization effort.)

In Saumier's case at the plastic factory, OSHA hit the company with a $720,700 fine for not installing proper safety guards on its equipment and for not reporting more than 60 injuries on its safety log. The good news is that those penalties went far to get the company to clean up its act on safety. As for the EEOC complaint, the company announced a $782,000 settlement. As a result, dozens of women received money to compensate them for the discrimination. The bad news is that a worker still at the plant said that a vastly disproportionate share of the best jobs were still held by men.

In The Big Squeeze, I also write about the dozens of lawsuits filed against Wal-Mart, accusing its managers in various states of squeezing employees to work unpaid hours off the clock. In direct response to these many embarrassing lawsuits (and the embarrassing newspaper articles about these illegal practices), Wal-Mart jumped to attention and moved to stamp out such illegal practices (although some workers say some of these practices persist).  Wal-Mart felt even more pressure to clean up its illegal act when several judges and juries ordered it to  pay millions of dollars -- in one California case $172 million -- when it lost lawsuits over off-the-clock work and not giving workers their required breaks.

In my view,  a key lesson here is that when the NLRB, OSHA, EEOC or a plantiffs' lawsuit hit companies over the head hard enough, companies will often clean up their act, effectively vindicating workers' rights. But if legal actions result only in a slap on the wrist, many companies will blithely continue their improper practices, leaving workers' rights weakened, rather than vindicated.