Strengthening the Collective Bargaining Rights of Precarious Workers under US Labour and Employment Law

KEYWORDS precarious employment, rights, collective bargaining, labour legislation, comment, United StatesWhile few protections exist for private sector in the United States, one group of workers, those falling into the category of precarious workers, are especially vulnerable. Over 40 million individuals in the United States, constituting roughly one-third of the workforce, could be considered to be precarious workers.1 Precarious are distinct from standard, full-time or because they are often part-time, temporary, seasonal, leased, on-call, or independent contractors - and often not covered by many existing worker protection laws.2As precarious workers, these individuals are often paid significantly lower than standard, full-time and may have little or no benefits. Moreover, precarious have no job security. While job security is limited for most private sector in the United States, that have formed labour unions and obtained collective bargaining agreements with their employers, may have some job security in the form of just cause dismissal requirements, under their collective bargaining agreement. Union also have the right to bargain over better wages and benefits and, as a result, generally enjoy higher wage rates and better benefits than other - particularly precarious - as a result of collective bargaining. While basic rights to form a union and engage in collective bargaining are weak in the United States, these rights are often not available to precarious workers.The sheer size of the precarious workforce and their lack of rights under existing worker protection laws have profound implications for both union and non-union standard, full-time in the United States. Both groups of face considerable pressure on their wages and benefits when competing with the growing number of lower-paid precarious workers. These pressures also place union in a disadvantaged position by giving employers additional leverage in the collective bargaining process.This paper focuses on proposals that would strengthen the rights of precarious in the United States by incorporating some aspects of international labour standards that, among other things, would require coverage of many precarious by US employment and labour laws. In order to understand the basis for these proposals, the first section of the paper describes the nature of precarious in the United States. The second section describes the limited coverage of precarious by US employment and labour law to precarious workers. It specifically focuses on the reasons that, the National Labor Relations Act, which governs workers' rights to form a union and engage in collective bargaining, is often not available to precarious workers. The last section of this paper describes the advantages and disadvantages of various proposals that would extend the protections provided by US employment and labour laws to precarious workers. It includes a discussion of how international labour standards, as defined by the International Labour Organization (ILO), could be utilized to assist precarious workers.Precarious in the United StatesPrecarious in the United States are generally referred to as contingent workers. The largest group of the contingent workforce in the country is part-time are defined as those individuals who regularly work less than 35 hours per week for a particular employer and are wage and salary workers and comprise about 43 per cent of the contingent workforce (Employment Arrangements, pp. 6, 12). The second largest category of precarious is that of independent contractors which are reported to comprise about 25 per cent of the precarious workforce in the United States, but this number may be somewhat lower since regular employees are often classified as independent contractors - leaving these without the protection of many US labour and employment laws (ibid. …