Approximately 70% of the employees in the United States are “at-will” employees; they can be disciplined, fired, or laid off without any reason or without any recourse.

On the other hand, employees represented by labor unions have rights and protections provided by federal and state laws, as well as by their union contracts.

 The most important law for U.S. workers is the National Labor Relations Act (NLRA). Passed in 1935, during a period of great labor unrest, the NLRA provides most U.S. workers in the private (non-governmental) sector with the right to join and establish a labor union, negotiate with their employer over the terms and conditions of employment, and take “concerted action”, including picketing and striking. (Most states have similar laws for state and local government employees.)

 If an employer violates any worker rights under the NLRA, an employee and/or their Union can file an “Unfair Labor Practice” (ULP) charge with the National Labor Relations Board. If the charge is substantiated, the employer will have to correct their actions and provide compensation. 

One of the most important rights union members have is not explicitly found in the NLRA, but resulted from a ruling by the U.S. Supreme Court that interpreted the NLRA. This is the so-called “Weingarten Rights” to union representation.

Weingarten Rights

The U.S. Supreme Court ruled that the NLRA gives union workers the right to request union representation during investigatory interviews by supervisors, security personnel, and other managerial staff.  Weingarten Rights help to ensure that, as an employee and union member, you are treated fairly and that you receive “due process” when management believes that you have violated a policy or rule.

An investigatory interview occurs if 1) management questions you to obtain information; 2) you have a reasonable belief that your answers could be used as a basis for discipline or other adverse action.

You must ask for union representation either at the beginning of or during the interview. Management does not have to remind you of this right.  (However, some HPAE contracts require management to provide you notice of your Weingarten Rights.)

If your request is refused and management continues asking questions, you may refuse to answer. Your employer is guilty of an Unfair Labor Practice if they force or try to force you to answer their questions without union representation.  Further, this would be a violation of the union contract.

“Just Cause” for Disciplines

In addition to Weingarten Rights, another crucial protection for union members is the requirement – found in all union contracts - that an employer can only discipline employees for just cause. An employer must have adequate reasons for disciplining employees; they cannot be arbitrary, unfair, or capricious in issuing discipline. But what does “just cause” mean? How do we know when management is acting according to this standard?

The following are the basic elements of just cause. Virtually all labor arbitrators recognize these elements and use them in their determination of grievance arbitrations regarding disciplines.

1.     Reasonable Rule - Was the rule or order reasonably related to the a) orderly, efficient, and safe operation of the department or b) standards of job performance that might be properly expected of employees?

2.     Notice - Did management give the employee adequate notice that the particular conduct would have disciplinary consequences? (Certain kinds of conduct, such as theft, are so serious that any employee is expected to know that such conduct will be punished on the first offense.)

3.     Sufficient Investigation - Before administering discipline, did management investigate (by questioning the employee and others who have relevant information)?

4.     Fair Investigation -Was the investigation fair and objective? Did the employee have the right to Union representation during the investigation?

5.     Proof - Did the investigation produce substantial evidence or proof that the employee actually violated a rule or order?

6.     Equal Treatment - Has management applied this rule or order even-handedly? Is the employee being treated more harshly than others?

7.     Appropriate Discipline - Was the discipline proportionate to the seriousness of the offense and the work record/seniority of the employee? Was progressive discipline followed?

Each of these elements of just cause ensures that a discipline is given only to those who deserve it and that it “fits the crime”. If management violates just one of these elements, their discipline may be inappropriate.

Key Federal and State Employment Laws

Both union and non-union employees have certain rights and protections based on a variety of employment laws that have been enacted in the last 40 years. Labor unions have played a key role in the passage of all of the following laws:

• Family Medical Leave Act (FMLA)

This federal law guarantees employees the right to take up to 12 weeks of unpaid leave for the birth/adoption of a child, a serious illness of the employee, or a serious illness of an immediate family member. The unpaid leave can be “intermittent.” All businesses in the private sector, public agencies and all public sector employers with 50 or more employees are covered by the law.

• New Jersey Family Leave Act

This law is New Jersey’s version of the FMLA. It provides 12 weeks of protected, unpaid leave for the birth/adoption of a child or for the serious illness of a family member. It does not cover the illness of the employee himself or herself. In some cases, an employee can take an FMLA leave and then a leave under this law.

• New Jersey Ban on Mandatory Overtime for Health Care Providers

This law bans the use of mandatory overtime
in hospitals and long-term care facilities except in “unforeseeable, emergent situation.”
Health care providers with direct patient care responsibilities are included in the law. Violations will result in fines to the employer.
If you’re unjustly mandated, contact your
union rep.  HPAE was instrumental in the passage of this law.

• Occupational Safety and Health Act (OSHA)

Enacted in 1970, this federal law requires employers to provide employees with safe and healthful working conditions. All private sector employers are covered. Public employees are covered by state laws. (e.g. in NJ, PEOSH). Individual employees or the Union may file a complaint with OSHA.

• Workers’ Compensation

Each state has their own laws regarding compensation of workers for work-related injuries and illnesses. These laws provide for monetary payments and medical treatment to workers. If you’re injured at work, immediately report the injury to your employer and complete the necessary paper work.  HPAE can provide you with referrals for attorneys specializing in workers compensation cases.

• Fair Labor Standards Act (FLSA)

Originally enacted in 1938 (but subsequently amended), this federal law establishes a minimum hourly wage, premium pay for overtime work (except for “exempt” employees), equal pay for men and women, and rules for child labor.

• Americans with Disabilities Act (ADA)

Enacted in 1990, this federal law prevents discrimination against qualified persons with disabilities. The law requires employers to make “reasonable accommodations”: for employees with disabilities. Private and public employers with more than 15 employees are covered.

• Age Discrimination in Employment Act (ADEA)

Enacted in 1967, this federal law makes it illegal for workers 40 years of age and older to be discriminated against. Private sector employers with 20 or more employees, public agencies, employment agencies, and unions are covered by this law.

• Title VII of the Civil Rights Act of 1964

Enacted in 1964, the purpose of this federal law is to prevent employment discrimination on the basis of race, color, gender, nationality, or religion. Coverage includes private sector employers with 15 or more employees, public agencies, employment agencies, and unions with 25 or more members. (Please note: New Jersey has its own law prohibiting employment discrimination.)

• Unemployment Compensation

Each state provides for compensation of employees who are laid off or who terminate their employment on a non-voluntary basis.