WHAT DO 27,000 LAWYERS TELL US ABOUT UNION POPULARITY?

Martindale.com reports that 27,160 lawyers in this country make a living practicing labor or employment law.   So, no one should think that our workforce has lost its interest in employee rights and representation.  There is a major market for employee representation, and unions should be asking themselves why employees have turned to very expensive private attorneys for help rather than to unions.

A good part of the explanation is that employers and their political allies have worked very hard to keep unions stigmatized and out of the workplace—legally and otherwise.  And some unions did not help themselves with shortsighted political positions, tactics, or the leaders they chose.  But those 27,000+ lawyers tell us that one path to recovery might be to go after the representational work they do.  Here is how that could work.

Obviously, employees value their rights and will even stand up to enforce them if given a fair opportunity.  If the Martindale.com prove that to you, look at these.  The EEOC reports that 99,000+ employees filed civil rights complaints in 2010 and the Dept. of Labor’s latest count showed that another 225,000+ annually received back pay from wage and hour claims.  When you also toss in FMLA, OSHA, worker compensation, and claims under another half-dozen oft-used labor or employment laws, you see a very strong market for representational help.

Employees who turn to private attorneys for that help often must pay thousands of dollars up front or pledge to give a large share of any ultimate monetary recovery to the attorneys.  Simply stated, private representation can be very expensive.  Consequently, if unions marketed themselves as offering precisely what private attorneys do, but for a lot less money, elementary economics suggests they would turn to unions for help.

Traditionally, three things get in the way of unions appearing as attractive as private attorneys.  First, unions usually do not service employees before they are organized into a formal bargaining unit.  Second, even after they are in a certified unit, unions prefer to focus on negotiating contracts and enforcing contract rights, while steering employees to either government or private lawyers when they have statutory problems. (The irony there is that unions were the driving force behind most of the laws making private lawyers rich today, but chose to ignore the demand for representational services those laws created.)  Third, unions need to have a lot more lawyers on staff so that they can not only widely provide traditional legal services, but also portray themselves as more professional legal service organizations.

Just look at what happened at Wal-Mart during the last 15 years.  While one union organizing drive after another was crushed by management’s scorched earth contempt for unions, private attorneys were filing thousands of lawsuits claiming retroactive overtime pay, reversing discriminatory decisions,  and enforcing any statute that had even minor application.  They not only won BILLIONS of dollars for tens of thousands of employees, but also forced major changes in the corporation’s employment practices by generating tons of bad media coverage.  It is hard not to day dream about what might have been had unions had their own lawyers represent those employees. 

The unions not only would have had invaluable access to the employees and opportunities to develop local leaders among them, but they would have been the organization delivering employees their very hefty back pay checks.  Employees rarely forget success like that.  Moreover, throughout the litigation the unions would have been in a good position to talk settlement with Wal-Mart and perhaps that could have included recognition of the unions as formal bargaining unit representatives in order to steer the cases toward arbitration and away from juries.  Juries quickly showed they did not like Wal-Mart, yet ironically, without unions Wal-Mart had no way to get the cases away from juries and before more experienced and reasonable arbitrators.

So, if these three hurdles keep unions from appearing to be attractive alternatives to private law firms, here is how to clear them.  First, unions have to fill staff jobs with attorneys so that they can say something like this, “When you need an experienced attorney to deal with management, we will give you one.”  Many of the jobs filled today by up-from-the-ranks, local union political leaders have to go to trained attorneys who can provide the full range of representational help, e.g., on grievances, arbitration, training, EEO charges, lawsuits, etc.   If the attorneys are on staff, any attorney fees they earn can be retained by the union to provide even more legal services so long as they are segregated from the rest of the union’s funds.   

Second, unions have to enforce more than the terms of their contracts; they have to enforce labor and employment laws as well.  This will require that they educate employees about their statutory rights, train stewards to spot signs that there might be a statutory claim, regularly put their legal staff into the work place, and shape grievance-arbitration procedures to accept statutory or regulatory claims.  Most employers should be more than willing to do that because the alternative is jury trials, which even when the employers win costs them tens of thousands in legal fees.

Third, unions have to provide legal representation before they organize bargaining units.  If a single employee of the local Target, Kohls or Best Buy comes to the union’s legal team with some questions about her rights to overtime, FMLA leave, workers compensation, a reasonable accommodation or even a discrimination claim, that single employee can be invaluable to the union’s long term chances of organizing the work site.  That employee’s suit can attract co-workers with similar claims, get the union access to personnel manuals and records, and even force the employer to sit down with the union attorneys to talk settlement. 

Another advantage of using the law to organize and drive a union is the penalties associated with retaliating against the employee who grieves.  Traditional labor law limits an employee’s remedy to back pay if she is fired for filing a grievance.  However, if an employer fires an employee for pursuing an FLSA overtime claim or discrimination allegation, the employee cannot only get back pay, but also additional compensating damages for the stress the termination caused. Today, an employer can fire an employee for working with a union and risk only a year or two of back pay, but if the termination is related to a statutory claim the employee could get back pay, hundreds of thousands in damages and another hundred thousand in attorney fees.  That creates a much bigger risk for employers who violate the law.

Law firms will react if unions move into the employment law business as competitors, but much of that reaction could be another good thing for unions.  Some might boost their advertising/education in their market area, which will help both them and unions generate business.  (Sadly, the average person spends 40 years as an employee, but schools do not give them more than a few moments focus on what their rights are as employees.) Other firms might offer to throw in with a union to be staff counsel in an area.  Still others will make and accept referrals.

Americans love their rights and clearly are actively enforcing them.  Unions should be the perfect place for them to look for help with an employment law problem—even in the federal sector, but unions have to make some changes before they can compete against 27,000 private attorneys. Until then, many of those lawyers will earn a lucrative living from the legislation labor lobbied into law, e.g., FLSA, EPA, ERISA, OSHA, FMLA, USERRA, AAADA, CRA, ADEA, CSRA, and many others.

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