Labor Regulation in Social Democratic America

I think that the US should move in a more social democratic direction, emulating the successful Nordic welfare states. This is the first part of a series of posts that I will be writing to explain how I’d build the welfare state in an ideal social democratic America.

We need a fundamental change in the power balance between workers and employers. We don’t just need greater regulation and workplace rights, but strong unions. Unions must play a role in setting economy-wide labor standards too. We also need more democratic workplaces.

Employment Contracts

All workers must have a written employment agreement (individual or collective).
Expand full labor protections and union rights to workers in the so-called ‘sharing economy’ who are not genuinely self-employed contractors.

Working Hours

Employees’ contracts must specify guaranteed hours that the employer will offer (that the employee would be expected to be available for). Workers could not penalized for refusing hours beyond these minimum hours. If the employer does not provide the guaranteed hours of work, the employee would still be entitled to compensation.
A form of ‘casual’ employment could be created where both employers and employees would neither be expected to provide work, or expected to accept work. Restrictions on employees working elsewhere, and requirements for employees to be available for work, would not be allowed. This would be for jobs where there is no expectation of continuing employment and an intermittent or irregular work pattern. This would not be a substitute for part-time employment.
Employees may not be required to work more than 48 hours per week, on average, including overtime.
40 hours shall be considered a normal working week, and 8 hours a normal working day. This should be gradually reduced to 37.5 hours, and then 35 hours. Any hours worked in excess of a normal working week would be overtime, paid at time-and-a-half.
Employees would be entitled to weekend pay — 1.25x pay for work on Saturday and 1.5x for work on Sunday.
Employees would be entitled to the following minimum paid breaks: 10 minutes for every 4 hours of work — this must be given separately from meal breaks.
Employees would be entitled to the following minimum unpaid breaks: 30 minutes for a meal break for every 5 hours worked. An employee cannot be asked to take the meal break during the first or last 90 minutes of the workday, and must be offered it within at least 5 hours of the workday beginning.

Annual Leave

Employees would be entitled to 25 days of paid vacation annually, and 10 days of paid public holidays (on days they normally work).
Workers would be entitled to a day off on a public holiday, however if they accept offered work, they would be entitled to time-and-a-half, as well as an additional day of paid leave in lieu. If an employee does not want a day in lieu, they would could receive 2.5x pay when they work on a public holiday.
For employees in casual employment relationships where it would be unreasonable (due to irregular employment) for an employer to provide 25 days of annual leave, paid vacation would accrue as a 9.6% bonus in pay-checks.
Employees would be entitled to 7 days of employer-paid sick leave, and 14 days employer-paid with two years of service. All workers would be entitled to 7 days of job protection in the first year. After 12 months of employment, job protection will be extended to 30 days, and after 36 months it will be extended to 60 days.
Employees would be entitled to one year of job protection for parental leave, after working for at least 5 months. This would be extended to two years after 30 months of employment.
Employees would be entitled to 3 days of paid bereavement leave per year, following the death of a close family member or partner.
Employees would be entitled to 12 weeks of job protection for carers’ leave, to care for a seriously ill family member, after working for at least 5 months.
Employees would be entitled to 45 days paid long service leave, after 10 years of continuous employment with the same employer. This is in addition to paid vacation.

Wages and Unions

The minimum wage should be raised to $15 an hour, phased in over a number of years. It should be indexed to inflation and the median wage, whichever is higher.
The NLRB should facilitate sector-wide bargaining to establish minimum standards for an industry (and/or region), above the national minimum labor standards.
Promote sectoral bargaining to introduce and expand industry-wide collective agreements. Aim to ensure the majority of workers are covered by a collective agreement.
Pass the Workplace Democracy Act, empowering unions by allowing card-check recognition, expanding enforcement, banning right-to-work laws, and strengthening the bargaining process. Expand the right to strike, including for political purposes and sympathy strikes. Remove the ban on the closed shop.
Ban the hiring of replacement workers for employees who are on strike. Employers should not be able to temporarily replace striking employees.
Ensure that unions have the right to access, in good faith, workplaces during working hours to organize and inform employees, and to inspect working conditions.
Ban employers from disseminating anti-union messages or otherwise attempting to influence an employee’s decision to join or not join a union.
Restore full collective bargaining rights for federal employees and other public sector workers. Ensure all workers are equally covered by labor regulations and collective bargaining rights.
Look into amending laws that restrict how unions use members’ dues for political purposes.
Introduce a system of easily accessible labor tribunals for employees to bring grievances on the grounds of discrimination, unfair dismissal, wage theft, harassment, etc. The tribunals would have the power to fine employers, order compensation for employees, and order reinstatement. Decisions by the labor tribunals would be able to be appealed, by employees, at a court of law.

Discrimination, Equality and Harassment

Expand anti-discrimination laws to include gender identity and sexual orientation.
Expand pay equity protections, and mandate that large companies publish the gap between male and female employees at their companies. Make it illegal for employers to punish employees for discussing their pay with other employees.
Expand protections for people with disabilities, expanding requirements for employers to reasonably accommodate workers’ disabilities.
Expand affirmative action laws to promote the employment and promotion of women and minorities, including looking into voluntary or mandatory quotas for company boards.
Introduce comprehensive protections against workplace harassment. This would make it illegal for employers and employees to harass, offend, insult, bully, or intimidate other employees on the basis of sex, race, ethnicity, nationality, gender identity, sexual orientation, age, disability, pregnancy, or religion (and sexual harassment). This would include, for example, telling insulting jokes about a racial group, using hate speech, or displaying offensive or insulting images in the workplace. It is important to recognize that even a small, one-time incident must be punished. Employers would also have a duty to investigate and record complaints, and punish employees who do this.

Workplace Democracy

Introduce a system of German-style co-determination to ensure workers have a voice in the management of their workplaces at large companies.
Introduce a comprehensive health & safety law that would, in industries considered dangerous (regardless of company size), delegate authority to an elected health and safety representative who would have the power to stop unsafe work.
Co-operative ownership should be promoted. Employees should have a statutory right to put up a bid to buy out a firm which is being sold or is shutting down. Employees should be given notice in advance of the company being put up for sale or shutting down, and adequate time to pool money.

Dismissal Procedure

At-will employment should be made illegal. Employment protection shall begin immediately when employment commences, with ‘trial periods’ being made illegal.
Employers must have a good reason for dismissal. This may include disciplinary action (in most cases, after multiple warnings), laying off workers, or unsatisfactory performance (after multiple warnings and offering assistance to improve performance). Dismissal for reasons that are protected in the law, like discrimination, harassment, taking leave entitlements, or union activity would be illegal. Dismissal must be done in good faith. Otherwise, the employee has a right to bring a grievance to the labor tribunals and may receive compensation or reinstatement.
Employers should investigate any issues of misconduct, without prejudice, before dismissing an employee. Unless the misconduct is so severe that it warrants immediate dismissal, the employee should be warned in writing. The employee should also be given clear standards to meet when being warned, and an opportunity to improve.
If an employee is dismissed, the employee shall have the right to request (up to 60 days after being dismissed) a detailed reason for being dismissed. The employer must provide a written response within 14 days. If the employer fails to meet this request, the employee may raise a grievance.
For the purposes of the dismissal protection law, a forced or coerced resignation would be considered dismissal. If employees are pressured or forced to resign, or work is made intolerable for an employee, the employee may raise a grievance. For example, resigning after being told you have a choice between resigning or being dismissed would be considered a dismissal.
Employers should have the right to lay off employees when their positions are made redundant. This must be about the employee’s role, not performance. An employee taking parental or sick leave, for example, is not grounds for being laid off. The employer must act in good faith, and should consider other options like reducing working hours. If an employee believes the layoff was unfair or not done in good faith, the employee may bring a grievance.
If a large company is bought by another company, or merges with another company, employees should have a reasonable expectation that employer will continue their employment, in good faith.
Employees who have worked for their employer for at least 12 months, and are laid off, would be entitled to severance pay. This would be equal to 2 weeks’ pay for each year worked, capped at $35,000. This would not affect entitlement to unemployment benefits, and the first $20,000 would not be considered taxable income.