ACS is pleased to distribute an Issue Brief by David M. Uhlmann, the Jeffrey F. Liss Professor from Practice and the Director of the Environmental Law and Policy Program at the University of Michigan Law School, entitled Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health Act. In this Issue Brief, Professor Uhlmann examines the need for stronger penalties for violators of the worker safety laws. Professor Uhlmann observes, “[a]pproximately 6000 workers are killed on the job each year – and thousands more suffer grievous injuries – yet penalties for worker safety violations remain appallingly small, and criminal prosecutions are almost non-existent.” Professor Uhlmann explains that prosecution under the Occupational Safety and Health Act (the “OSH Act”) is rare because the Act’s substantive criminal provisions are “limited to (1) willful violations of worker safety regulations that (2) result in worker death.” Further, even when criminal provisions apply, the crime is only a Class B misdemeanor, which, according to the author, provides little incentive for prosecutors and law enforcement personnel who often have to reserve their limited resources for felonies. The author concludes by recommending that Congress pass legislation to strengthen the criminal provisions of the worker safety laws, which would allow our nation to “make good on the promise of a safe workplace made 30 years ago when Congress enacted the Occupational Safety and Health Act.” As Professor Uhlmann reminds readers, “everyone deserves a safe place to work and the ability to come home to their families in good health each night.”

ACS is pleased to distribute an issue brief by Barry D. Roseman, Partner at McNamara, Roseman, Martinez & Kazmierski, L.L.P. in Denver, Colorado, entitled, Just Cause in Montana: Did the Big Sky Fall? In this issue brief, Roseman analyzes the common law doctrine of employment at will – under which many employees may be fired for a good reason, a bad reason, or no reason at all – and urges consideration of an alternative approach, under which an employee may be discharged only for “just cause.” Noting that one of the arguments against the just cause approach is that it allegedly leads to higher unemployment and lower job growth rates, Roseman has examined data in the one state in the U.S. that has adopted the just cause standard, Montana, and reports that in Montana, the data do not support this argument. His findings are especially timely, he argues, because a ballot measure that would amend the Colorado constitution to adopt the just cause standard will appear on the ballot in that state this fall. He concludes, “It is time – many believe, long past time – for the federal government and the states to enact laws to require just cause for termination of employment.”

In September Massacre: The Latest Battle in the War on Workers’ Rights under the National Labor Relations Act, Associate Professor of Law at West Virginia University College of Law Anne Marie Lofaso focuses on several of the sixty-one decisions issued by the National Labor Relations Board (NLRB) in September 2007, a group of decisions that many in the labor community have referred to as the “September Massacre.” Professor Lofaso discusses the decisions and their effects on the right to organize, but also explores “the aggregate, weakening effect by both the Bush Board and prior governmental action.” In exploring the decisions within this larger context, the author explains that “many of the September decisions fit into a long history of legislative, administrative, and judicial cutbacks to the original NLRA [National Labor Relations Act],” and might most accurately be viewed as “the latest, and perhaps most serious, attack on workers’ rights.” Professor Lofaso pays special attention to the NLRB’s Dana Corporation decision, one of the September decisions that the author finds particularly harmful and revolutionary. Concluding with some thoughts on what the labor movement can do to regain economic and political power, Professor Lofaso suggests a course that includes political activism, legislative changes (both substantive and procedural) to the NLRA, a federal judiciary willing to reverse the NLRB in appropriate circumstances, labor advocates being willing to use what remains of the NLRA to further workers’ rights, and renewed attention to the teaching of labor law in our nation’s law schools.