Oregon Should Ensure All Workers Have the Right to Organize

Oregon Should Ensure All Workers Have the Right to Organize

Oregon Should Ensure All Workers Have the Right to Organize

Oregon can improve the economic well-being of its people by ensuring that all workers enjoy the right to form a union. In 1935, the National Labor Relations Act (NLRA) established the right of private-sector workers to organize. But this pivotal federal law leaves out certain kinds of workers: independent contractors, farmworkers, and domestic workers. The exclusion of the latter two categories is the product of economic systems in the United States built on the exploitation of Black workers. Today, more than 116,000 Oregon agricultural and domestic workers — disproportionately workers of color — lack the protections afforded by the NLRA. Oregon can end this unjust treatment of certain categories of workers by providing state-level protection to workers excluded under the NLRA.

The right to organize makes Oregon workers more economically secure

Unions play a critical role in ensuring the economic well-being of workers. Unionized workers tend to earn more in wages than their non-unionized peers. The union benefit is strongest for workers at the bottom: Oregon’s lowest-paid workers represented by a union enjoy wages that are 21 percent higher that non-union workers, while unionized middle-wage workers earn 17 percent more than their non-union counterparts.[1] Unions also help close racial wage gaps, particularly for Black and Latino workers.[2] In addition to pay, unions also help improve worker benefits. For example, workers belonging to a union are more likely to have health insurance and be offered paid sick days than their nonunionized peers.[3]

Unions also have positive impacts on the broader economy. Research shows that when union density in an industry is high, wages and benefits tend to improve for unionized and nonunionized workers alike.[4] Moreover, unionization can help reduce income inequality. Research shows that historically, periods of higher unionization in the U.S. are characterized by broader distribution of income, with less concentration of income growth among the richest households.[5]

The NLRA lays out essential protections that empower workers to collectively improve their pay and working conditions. Among other protections under the law, workers may organize and join a union to negotiate better pay and working conditions with their employer; they may discuss wages, benefits, and other conditions of employment with co-workers or with a union; and they may take collective action to raise work-related complaints.[6] Another crucial aspect of the law is that it bans employers from retaliating against workers who exercise their rights under the law.[7]

The Promise and Practice of the NLRA
The National Labor Relations Act, passed in 1935, creates a U.S. policy to encourage collective bargaining. The right to bargain is grounded in protecting workers’ freedom of association. The Act aims to safeguard workplace democracy by giving private-sector workers the right to seek better working conditions and to designate a representative, without fear of retaliation.[8]

The National Labor Relations Board (NLRB), which implements the NLRA, conducts hundreds of workplace union elections on behalf of workers each year, and investigates thousands of unfair labor practice complaints.[9] Over the most recent 10-year period, the NLRB recovered more than $635 million in back pay for more than 22,000 workers unlawfully fired for exercising their organizing rights.[10]

NLRB’s activities, however, are far from adequate. Degraded enforcement tools — the result of years of undue corporate influence — mean that employers are largely undeterred in violating workers’ organizing rights. Employers face no monetary penalty for illegally retaliating against workers.[11] Workers allege bosses violate NLRA worker protections in 42 percent of union election campaigns.[12] In recent years, weak NLRA enforcement has cost workers billions in back pay and damages.[13]

Despite its flawed enforcement tools, workers would be worse off without the NLRA. By conducting elections and investigating employer violations, the NLRB and the NLRA itself gives workers a measure of power with respect to the conditions of their work.

 

 

Federal law leaves 116,000 Oregon agricultural and domestic workers unprotected

Not all workers enjoy a federal right to organize. The NLRA fails to protect agricultural workers, domestic workers, and independent contractors, among others.[14] The exclusion from NLRA protections of agricultural workers and domestic workers is the product of economic systems in the United States designed to exploit Black labor.[15] Today, these exclusions disproportionately harm workers of color, immigrant workers, and women.

From the outset, the NLRA failed to extend the right to organize to agricultural and domestic workers — a decision rooted in racism in American society at the time.[16] Lawmakers from the Jim Crow South, concerned that empowered Black workers would refuse to continue to work in white-owned fields, factories, and kitchens, fought to ensure agricultural and domestic workers were excluded under the original law.[17] That unequal treatment has remained on the books for nine decades.

This exclusion perpetuates racial inequities in the labor force today. Nationally, 83 percent of farmworkers identify as Latino, while in Oregon the figure is higher at 92 percent. Three-quarters of Oregon farmworkers are immigrants from Mexico.[18] And domestic workers are disproportionately Black and Latino and women, both nationally and in Oregon.[19]

The effects of these exclusions are borne out in workers’ pay. The median wage for farmworkers in 2022, at $15 per hour, was lower than the median occupational wage for 91 percent of other Oregon workers.[20] Lack of available data on domestic workers earnings hampers analysis at the state level, however, researchers report that the median wage for domestic workers nationally was $13.79 per hour in 2021, well below the median for other workers.[21]

Excluded workers' wages among lowest in Oregon

Congress excluded independent contractors from the NLRA in 1947 with the enactment of the Taft-Hartley Act.[22] The law does not recognize independent contractors as employees and, therefore, denies them essential workplace protections, including the right to collectively bargain. The creation of this status has resulted in employers deliberately misclassifying workers as independent contractors to avoid legal and financial responsibilities to workers.[23] It has become a common way to classify jobs in the platform-based gig economy, which recent research has shown are jobs more likely to be held by workers of color.[24]

All told, more than 116,000 Oregon agricultural and domestic workers lack the basic protections provided under the NLRA.[25] That includes more than 86,000 agricultural workers, and nearly 30,000 domestic workers.[26]

Oregon can extend the right to organize to excluded workers

Oregon need not wait for Congress to act to extend the rights provided under the NLRA to currently-excluded workers. Oregon can provide, under state law, the same protections contained in the NLRA to presently-excluded workers.

For example, farmworkers in California won the right to collectively bargain in 1975 after years of organizing.[27] Specifically, the California Agricultural Relations Act extended the right to collectively bargain to farmworkers, the first time a state expanded bargaining rights in this way.

In Oregon, state law seemingly grants all workers the right to organize, but Oregon workers excluded under the NLRA lack state protections requiring an employer to recognize a union or to negotiate a collective bargaining agreement.[28] So, for Oregon excluded workers, the Oregon right to organize has little practical meaning because workers do not also have the right to assert their interests through bargaining.

Oregon has taken important steps to enable homecare workers to collectively bargain, though other kinds of domestic workers remain unprotected. In 2000, Oregon voters approved Measure 99, which amended the state Constitution to create a commission overseeing in-home services for elderly and disabled Oregonians receiving publicly-funded care. As a result, homecare workers received collective bargaining rights of public employees, but are not permitted to strike.[29] Still, many other domestic workers, including nannies, house cleaners, cooks, and gardeners, lack protections provided under the NLRA.

Together, more than 116,000 Oregon agricultural and domestic workers lack the protections provided under the NLRA. This figure is only a portion of all Oregon workers excluded from the federal law. Limitations in available data make it difficult to estimate the number of independent contractors lacking NLRA protections, among other unprotected groups.

Conclusion

Oregon lawmakers can improve conditions for tens of thousands of Oregon workers and their families by extending collective bargaining protections to currently-excluded workers. Through collective bargaining, Oregon workers could see increases in their wages and improved working conditions. Oregon as a whole would see a more equitable economy.


 

[1] The union wage premium for Oregon workers at the 10th percentile is 21.1 percent, 16.5 percent at the 50th percentile and 5.8 at the 90th percentile. John Schmitt, “The Union Advantage for Low-Wage Workers,” Center for Economic and Policy Research, May 2008.

[2] Research shows that, “unionized workers (workers covered by a union contract) earn on average 11.2% more in wages than nonunionized peers (workers in the same industry and occupation with similar education and experience). Black workers represented by a union are paid 13.7% more than their nonunionized peers. Hispanic workers represented by unions are paid 20.1% more than their nonunionized peers.” Celine McNicholas et al., “Why unions are good for workers – especially in a crisis like COVID-19,” Economic Policy Institute, August 25, 2020.

[3] Janet Bauer, “Poor Quality Jobs Predominate in Strong Economy,” Oregon Center for Public Policy, September 1, 2021. See also Celine McNicholas, et al., 2020, ibid.

[4] Jake Rosenfeld, Patrick Denice, and Jennifer Laird, “Union Decline Lowers Wages of Nonunion Workers: The overlooked reason why wages are stuck and inequality is growing,” Economic Policy Institute, August 30, 2016.

[5]Lynn Rhinehart and Celine McNicholas, “Collective bargaining beyond the worksite,” Economic Policy Institute, May 4, 2020.

[6] “Employee Rights Under the National Labor Relations Act,” National Labor Relations Board, September 2011.

[7] Ibid.

[8] “National Labor Relations Act,” National Labor Relations Board, webpage.

[9] “The NLRB Recovered Over $56 million and 6,307 Workers Were Offered Reinstatement in Fiscal Year 2021,” National Labor Relations Board, November 1, 2021.

[10] OCPP analysis of data for the 2013 – 2022 period from the U.S. Department of Labor.

[11] Additionally, the back pay they owe to fired workers they are required to reinstate is reduced by the amount a worker earns in the interim from another job. Lynn Rhinehart, Celine McNicholas, “Shortchanged—weak anti-retaliation provisions in the National Labor Relations Act cost workers billions,” Economic Policy Institute, April 22, 2021.

[12]Celine McNicholas, et al, “Unlawful: U.S. employers are charged with violating federal law in 41.5% of all union election campaigns,” Economic Policy Institute, December 11, 2019.

[13] Lynn Rhinehart, Celine McNicholas, “Shortchanged—weak anti-retaliation provisions in the National Labor Relations Act cost workers billions,” op cit.

[14] The exclusion of independent contractors was added to the National Labor Relations Act in 1947 under the Taft-Hartley Act. For more, see Lance Compa, “Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards,” Human Rights Watch, August 2000.

[15] Kaitlyn Henderson, “Why Millions of Workers in the US are Denied Basic Protections,” Oxfam America, November 20, 2020, available at.

[16] “Thirty Years of Farmworker Struggle,” National Parks Service.

[17] Kaitlyn Henderson, op cit.

[18] “Facts About Farmworkers,” National Center for Farmworker Health, December 2020. Also, “Farmworker Needs Assessment,” Oregon Human Development Corporation, April 2022.

[19] Julia Wolfe, et al., “Domestic workers chartbook,” Economic Policy Institute, May 14, 2020.

[20] The analysis establishes the percentile for median occupational wages for farmworkers among median wages for all workers in the state. The data caps median wages for the highest-paid occupations at $115 per hour. The occupations having wages above this level are all in the health care field and include anesthesiologists and surgeons, among others. The lowest occupational wage is $12.75 for gambling dealers. OCPP analysis of 2022 data from the Occupational Employment and Wage Statistics Survey of the Bureau of Labor Statistics.

[21] Oregon Bureau of Labor and Industries state data for the home health and personal care aides category includes workers working in group and day services settings, as well as in-home settings. Asha Banerjee, Katherine DeCourcy, Kyle KI. Moore, and Julia Wolfe, “Domestic Workers Chartbook, 2022,” Economic Policy Institute, November 22, 2022.

[22] Lance Compa, “Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards,” Human Rights Watch, August 2000.

[23] Ibid.

[24] Ben Zipperer, et. al., “National survey of gig workers paints a picture of poor working conditions, low pay,” Economic Policy Institute, June 1, 2022. Also, Monica Anderson et al., “The State of Gig Work in 2021,” Pew Research Center, December 8. 2021. Since private households sometimes erroneously view nannies and other domestic workers as independent contractors when they don’t qualify for the status, there is some overlap in the populations of domestic workers and misclassified independent contractors.

[25] Analysis by the Economic Policy Institute and shared by email with OCPP on August 18, 2022.

[26] There is no ideal source of data for the population of excluded Oregon agricultural workers. The Current Population Survey by the U.S. Census likely produces a severe undercount, because it does a poor job of reaching migrant workers who live in temporary rural housing and workers who have reason to avoid government officials. The Census of Agriculture of the National Agricultural Statistics Service of the United State Department of Agriculture fields a survey required for farms to complete every five years, which asks about hired farm labor. The survey has elements that drive both under- and over-counts of the population. This analysis uses data from the Census of Agriculture, as the best of the imperfect options. It estimates that Oregon had 86,240 hired farm workers in 2017. Because of difficulties in counting and estimating farmworkers, any estimate should be considered a likely undercount. The figure for the population of excluded Oregon domestic workers is from analysis by the Economic Policy Institute, shared by email with OCPP on August 18. 2022. EPI estimated the population to be 29,599 from aggregated Current Population Survey data for the 2019-2021 period.

[27] Francisco Martinez, “Beyond the Furrows: Farmworker rights from the 1930s to now,” KBCX, July 12, 2021.

[28] In 1996, former employees of Oregon Roses Inc. “filed an action for damages alleging claims of wrongful discharge and breach of their employment contracts,” with the Oregon Court of Appeals. In its decision, the Court determined that state law predating the NLRA extends the right to organize to Oregon workers broadly. In 1961, Oregon enacted additional state labor laws patterned after the NLRA, which included the NLRA’s exclusionary language for certain kinds of workers, including farmworkers. In its decision, the Court determined, “that the inclusive language of ORS chapters 661 and 662 expresses a public policy that has always encompassed the protected right of all Oregon workers, including agricultural workers, to engage in concerted activities. The exception in ORS 663.005(3) for agricultural and other workers does not operate as an abolition of that right but as an exemption from regulation.” As a result, workers who were fired from Oregon Roses Inc were awarded damages for the firing, however, they did not gain the benefits of regulation of labor relations including having a union recognized by an employer and rights to bargain with their employer, per email communication with Larry Kleinman, founding member of PCUN, to OCPP on August 22, 2022. Also per verbal communication with Corinna Spencer-Scheurich, Executive Director, Northwest Worker Justice Project and OCPP staff Janet Bauer on July 19, 2023. See Rauda v. Oregon Roses, Inc., Oregon Court of Appeals, March 19, 1997.

[29] Oregon Secretary of State, Elections Division, Measure 99 certified ballot title and AG letter.

Tyler Mac Innis

Tyler Mac Innis

Tyler Mac Innis is a Policy Analyst with the Oregon Center for Public Policy
Janet Bauer

Janet Bauer

Janet Bauer is Director of Policy Research at the Oregon Center for Public Policy

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