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Wake-Up Call

Firing for just cause, not just because


The National Labor Relations Board recently expanded and strengthened the penalties on employers who illegally demote or terminate employees for their union activity. The trick is, of course, in the definition, scope and enforcement of the too-often malleable concept of "illegality.”

No longer will an employee's reinstatement with lost wages be sufficient under the law. That was an incentive for employers to maintain their abusive practice, since the worst that could happen to them for their wrongful behavior would be a return to the status quo. 

The NLRB's ruling means that to fulfill the requirement that employees be "made whole,” they must also be compensated for, among other debts, the costs of lost health insurance, credit card late fees, lost investment income, child care costs, payments for visa or immigration-related documents, and surcharge fees for bills they couldn't pay because of their having been economically kneecapped by their employer's wanton behavior.

Towards the finishing line of justice, that's definitely not a sprint, but is a decent step, arguably a stride.

Employers must be stung as though by a thousand wasps for their knowing malicious intimidation of workers. Harassment is always wilful. It should cause systemic infection to their enterprise beyond simply being factored into the cost of doing business. 

The abusers' liability must never be tax-deductible.

Employers plot with furious vigor to operate under the radar to achieve their forbidden goals. If they are barred from axing employees for pro-labor activism, they will find creative solutions that will enable them to get away with it under the guise of another theoretical offense that doesn't fall under the NLRB's umbrella.

Retaliation against workers who assert their rights should be the labor law equivalent of a felony.  A wide net should be cast in categorizing such reprisals.

There are many dastardly HR bibles and playbooks. Employers are perfectly at home "getting at" employees for other than stated reasons. They pit worker against worker with goody bags for snitching.

Companies like Amazon, Chipotle, Apple and Trader Joe's have all codified distaste for unions into their standard operating procedures, though less so in their press releases. Too often, when the law holds employers' feet to the fire, it's the workers who get burned, because the bosses manage the furnace.

If "facial recognition" technology (that Mr. Dolan is using to keep his detractors out of Madison Square Garden, and that China employs to penetrate and pierce the private lives of its citizens), could be used to keep tabs of the thoughts and designs of employers, it would be scary and revolting.

A financial penalty that is a drop in the bucket is not a meaningful sanction against bosses who have pissed into the ocean so copiously as to disturb the balance of nature.

Penalties against employers should have built-in, compulsory, expedited penalties that are stringent to begin with and are exponentially increased when not paid within a narrow time frame.

The law must shut down all escape paths for billionaire recidivism.

Shed the phony blindfold and the scales. Justice is not for building friezes; it's for workplaces!  The American world-view and self-image has always been that "justice is blind" because under the same circumstance and context, we are supposedly all treated the same regardless of social and economic standing.

Blindness is in the eye of the beholder. History illuminates this fact with bizarre shadows. Whether justice is blind or not blind enough may depend on whether its eyes are swollen closed or directed to what its abusers envision it to be.

Workers must cherish pro-labor rulings even when they are flawed, as is the case in the recent NLRB decision.

Aggrieved workers will still be required to submit irrefutable, clear-cut (impeccably chiseled in hardest) proof that they were directly harmed by their employer. The sadistically brilliant attorneys in the union-avoidance industry are geniuses at vaporizing what has been authenticated.

The NLRB's sliver-thin 3-2 vote beefs up, maybe with vegetarian meat, penalties levied for employers' unfair labor practices. Nonetheless, it gives teeth to the remedies, even if those teeth are dulled and wobbly. But those "teeth" may be nothing more than soft gums because, according to Bloomberg Law, the NLRB "lacks the power to levy monetary fines or impose punitive damages." 

The two Republican members of the NLRB both opposed the board’s finding; it was passed because all three Democrats voted in favor.

The GOP couldn't confess outright that their core belief is that workers benefit most from the character-building thrill of being kept one paycheck away from destitution. In trying to bring us to our senses, they explained that  "...attempting to calculate consequential damages will make compliance proceedings unnecessarily long and delay workers from getting pay, and invite intrusive and potentially humiliating inquiries into employees' personal financial circumstances.”

The Republicans habitually carp about government treating its workers as children by claiming to know better what's good for them than they know for themselves. Here we see the Republicans vowing to support their air supply by means of strangling them.

"Think not what your company can do for you. Think what you can do for your company.” That's a presidential-sounding goading from the commander-in-chief of an imaginary corporate federal republic.

Remember the old  television cartoons where figures give long, drawn-out caricatures of a kiss. That's the kind of smooch that the National Federation of Independent Business plants with wet rubbery lips on the butts of management. Weighing in on the recent NLRB case, they pleaded with the NLRB to limit compensation for victimized workers to their net pay and absolutely, and positively nothing more, period.

When motion pictures were first made, it was hard for skeptics to realize that the "motion" was an illusion, created by the rapid movement of a succession of still photographs, too fast for the eye to detect, even while beholding.

Job termination is like such a primitive motion picture. The governing legalisms are like the individual images, but the final product, after the hidden blurs, is foreclosure of hope and sometimes of property.

Federal, state and local governments must, with their administrative machetes, hack away at the jungle overgrowth of legal dispositions that are garments with loopholes through which corporations can strut and defy accountability.

According to the New York Attorney General's website, "In New York State, a private-sector employer is not required to have good cause to discharge an employee … while an employer can fire someone for no reason, it is not allowed to do so for a prohibited reason".

Isn't that cute? Why risk the error of firing for a prohibited reason when no reason at all will get the job done?

In an answer to the question “My employer fired me for an unfair reason, or for no reason at all. Is that legal?” the AG site candidly admits "in many cases, yes.”

Unaffected by the recent ruling, the NLRB continues to let employers “lock out employees defensively,” “discharge employees who engage in an unprotected … strike,” “discharge sympathy strikers who refuse to cross a picket line at another employer,” “choose to go out of business entirely, even if (their) decision to do so is motivated by anti-union considerations.”

The NLRB and labor-related law do not in their arsenal have any "silver bullets" against oppressive employers.  All we can do is pray that any weapon that backfires does not shoot us with cyanide-laced bullets.


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