Paul M. Secunda (University of Mississippi) has posted Reflections on the Technicolor Right of Association in American Labor and Employment Law on SSRN. Here is the abstract:
Although many different forms of rights to association exist in the United States workplace, the actual coverage for workers is a patchwork of protections that apply sometimes and not others, depending largely on factors such as whether one works for a public or private employer and whether one is in a unionized or non-unionized work environment. The consequence of this state of affairs is that American workers may have fewer rights to association than many of their international counterparts in the industrialized world.
My proposed federal Freedom of Association in the Workplace Act (FAWA) would not supplant existing constitutional and statutory protections at the federal and state level, but would provide a complementary and comprehensive statutory framework for all associational rights claims in the workplace. Such a law would provide additional protection for employee associational claims both procedurally and substantively, while simultaneously making consideration of the more difficult constitutional issues by courts unnecessary. If appropriately drafted and implemented, such a law would provide a uniform and understandable basis for reviewing workplace association claims going forward.
