92 T.P. Golden et al. Fig. 4.4 Employment and disability policy 1998–2011 This movement did not stop with the passage of the ADA, and in fact continues to grow in momentum further extending the design of inclusive and integrated, demand-driven policies, procedures and practices in the U.S. to promote full employment for Americans with disabilities. 4.3.1 The Americans with Disabilities Act of 1990 The purpose of the Americans with Disabilities Act of 1990 (ADA) was to establish a clear and comprehensive prohibition of discrimination on the basis of disability. The ADA extended the prohibitions against discrimination on the basis of race, sex, religion and national origin to include disabilities.2 The goal of the ADA 2 For more information, see the U.S. EEOC web site at http://www.eeoc.gov/laws/ada.html.
4 New Approaches to Disability in Social Policy: The Case of the United States 93 employment provisions (Title I) is to provide equal employment rights to people with disabilities, thus increasing their labor market opportunities. Title I regulations apply to private employers with at least fifteen employees, and where state laws are more inclusive, may cover employers with fewer employees. The ADA employment provisions makes it unlawful to discriminate on the basis of disability in a wide range of employment-related actions, including recruitment, job application, hiring, advancement, compensation, benefits, training, and dis- charge. Title I prohibits both intentional discrimination and employment practices with discriminatory effect. The definition of disability under Section 504 of the Rehabilitation Act of 1973 was the basis for the definition of disability under the ADA. It includes any person who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded as having such impairment. Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks. The ADA protects qualified individuals with disabilities from discrimination. A qualified individual with a disability is a person who meets the necessary pre- requisites for a job and can perform the essential functions with or without reasonable accommodation. Additionally, Title I limits the use of both pre-employment and post- employment medical examinations and inquiries. An individual with a disability may be subjected to a pre-employment medical examination and inquiry only after a conditional offer of employment has been made and only if all entering employees in the job category are subjected to such an examination or inquiry regardless of disability. Post-employment medical examinations and inquiries must be job-related and consistent with business necessity. Employee medical information is to be maintained separately from other personnel information, treated in a confidential manner, and shared only with supervisors and managers who need to know about necessary restrictions on the work duties of the employee and necessary accommodations. First aid and safety personnel also can be given selected infor- mation if the disability might require emergency medical treatment, as can govern- ment officials investigating compliance with the ADA. The reasonable accommodation requirement is central to the mandate of nondiscrimination against people with disabilities. Reasonable accommodation is not an entirely new concept. Reasonable accommodation was required under the Rehabilitation Act with respect to the employment and participation of individuals with disabilities under federal contracts and programs and under Title VII of the Civil Rights Act with respect to religious observances of employees. The ADA provides the following examples of reasonable accommodations: job restructuring; part-time or modified work hours; reassignment to a vacant position; acquisition or modification of equipment or services; appropriate adjustment or modifications of examinations, training materials, or policies; and provision of qualified readers or interpreters.
94 T.P. Golden et al. Employers are not, under the ADA, required to hire employees who may pose a “direct threat” to the workplace safety or health environment. The statutory defini- tion of the term direct threat is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation” (U.S. EEOC 1992). Employers may use the direct-threat defense only in cases where risk is signifi- cantly increased, and standards for determining how severe a risk is must be applied to all employees—both with and without disabilities. In the last few years, the Supreme Court has issued a number of decisions that have dramatically changed the way ADA is interpreted (National Council on Disability 2002). Decisions on the definition of disability and the applicability of the statute to state governments have limited the application of the ADA in many cases (National Council on Disability 2003). The ADA employment provisions (Title I) are enforced by the Equal Employ- ment Opportunity Commission (EEOC). The EEOC provides continuing regulatory and policy guidance on implementation of the ADA employment provisions.3 An example is that over the past 15 years, questions and concerns about accommoda- tions for persons with psychiatric disabilities have been voiced by employers. In response to these concerns, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on the ADA as it applies to persons with psychiatric disabilities. In 2008, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA) to allow for broader coverage of individuals at the highest level possible. Most significantly, the amendments adjusted the ADA definition of disability to create less restrictive disability criteria. This now permits a greater number of individuals to fall under the ADA disability category. Although the basic definition of disability still remains, the basic statutory terms are construed differently. Most significantly, the substantially limiting definition must be viewed from a broad perspective to. For example, some individuals with epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder previously fell between the cracks and were ineligible for ADA protection. Now however, the substantially limiting definition need not be satisfied only by a severe or significant impairment of a major life activity. Moreover, an assessment to determine whether a person has a disabil- ity must be individualized and should not require extensive analysis. Additionally, the regarded as prong is less stringent. Particularly, an impairment need not last for any designated amount of time to qualify as a person with a disability pursuant to the ADA. This also means conditions in remission or episodic may satisfy the ADA definition of disability if the condition is substantially limiting when active. For example, even when cancer enters remission it may still constitute a disability if the cancer returns as a substantially limiting condition. Moreover, mitigating measures that ease the symptoms of disabling conditions may not prevent ADA coverage. In making this determination, the assessment should consider only whether the 3 EEOC Guidance documents are available at web site http://www.eeoc.gov/policy/guidance.html.
4 New Approaches to Disability in Social Policy: The Case of the United States 95 individual would have a substantially limiting condition without mitigating mea- sures (Regulations to Implement the Equal Employment Provisions 2011). 4.3.1.1 Where Discrimination Claims Are Occurring Analyses of employment-related discrimination claims are an important source of information about where and how disability-related employment discrimination continues to occur. According to EEOC Integrated Mission System statistics, 298,364 ADA charges were filed with the EEOC or Fair Employment Practice Agencies (FEPAs) across the United States in the period 1997–2012. Over these years, the number of ADA charges ranged from a low of 14,893 charges in 2005 to a high of 26,379 charges in 2012—averaging approximately 18,648 charges.4 These charges also show that employers are experiencing disability discrimina- tion claims not just in the recruitment and application processes, but throughout the employment process. In 2011, by far the most cited issue was discharge (21,988 charges), almost twice as many as the next issue—reasonable accommodation (12,426 charges). Rounding out the top ten issues, the next eight most often cited issues were terms/conditions of employment (7,466 charges), harassment (6,834 charges), hiring (2,207 charges), other (1,065 charges), discipline (4,611charges), constructive discharge (1,551 charges), promotion (935 charges), and layoff (738 charges). Between 1997 and 2012 the basis (type of disability) among the most prevalent charges was “other disability,” which was cited in 64,686 charges. This was slightly more than twice as many as the next most prevalent basis—structural back impair- ment (29,279 charges). The remainder of the most prevalent types of disabilities among the top ten (the next eight) were “regarded as disabled” (41,896 charges), non-paralytic orthopedic impairment (25,997 charges), depression (21,860 charges), other psychiatric disorders (5,919 charges), diabetes (14,103 charges) heart/cardiovascular (10,997 charges), hearing impairment (9,278 charges), and “record of disability” (16,328 charges). Results analyzing these charges suggest that employers need assistance in navigating requirements for nondiscrimination across all phases of the employment process, that organizations under 500 employees experience proportionally more charges, and that more than two-thirds of charges are filed against services, manufacturing, and retail organizations (Bruye`re et al. 2010c). While employer attitudes towards people with disabilities appear to be a continuing problem, the cost of accommodation and the changes to employer policies and practices neces- sitated by the regulatory requirements of this law appear to be of much less concern to employers than originally thought. One of the foremost issues discussed regard- ing the impact of the ADA has been whether this civil rights legislation for people 4 Calculations by staff of the Cornell University Employment and Disability Institute, using the EEOC Charge Data System data, 2012.
96 T.P. Golden et al. with disabilities has resulted in higher or lower rates of employment. While most agree that employment rates among people with disabilities fell in the 1990s, there is little agreement as to the reason (Bruye`re et al. 2006). 4.3.1.2 Intersection of the ADA with Other Employment Legislation and Policy The ADA provides employment disability nondiscrimination protections, and rep- resents one legislated approach to promote equitable access to the workplace for persons with disabilities. Worthy of discussion here is how other related pieces of legislation designed to afford further protections for workers interface with the ADA. Specifically here we focus on the Family and Medical Leave and Occupa- tional Safety and Health Acts. Family and Medical Leave Act (FMLA) of 1993 The FMLA establishes, for employers with 50 or more employees, a minimum labor standard with regard to leaves of absence for family or medical reasons. The law’s enactment was driven by concern to protect the needs of American work- forces, while attending to the productivity concerns of employers. Under the FMLA, an eligible employee may take up to 12-work weeks of leave during any 12-month period for one or more of the following reasons: the birth of a child and to care for the newborn child; the placement of a child with the employee through adoption or foster care and to care for the child; to care for the employee’s spouse, son, daughter, or parent with a serious health condition; and a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job.5 An FMLA serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care, or con- tinuing treatment by a health care provider. During the FMLA leave, the employer must maintain the employee’s existing level of coverage under a group health plan. At the end of FMLA leave, an employer must take an employee back into the same or an equivalent job. The FMLA does not require an employer to return to work an employee who is medically unable to do his job, nor does it require modification of the job or reassignment to a new position. Some of the questions which arise in as regards the FMLA and the ADA are the interplay between FMLA leave, accommodation, and return-to-work efforts (Scott 1996). In some cases, the FMLA leave itself can be an accommodation. In other situations, the FMLA may create difficulties for an employer attempting to get injured workers back to work and off benefits. Many employers have used “light 5 For additional information about the FMLA, see the U.S. Department of Labor website at http:// www.dol.gov/esa/whd/fmla/.
4 New Approaches to Disability in Social Policy: The Case of the United States 97 duty” to bring an injured worker back to work within his/her medical restrictions. Light-duty jobs typically are very different from the job an employee was doing at the time of injury. Because the FMLA requires that a worker be restored to the same or an equivalent position on return from leave, an employer may not compel an injured worker to accept light duty work in lieu of exercising his or her FMLA entitlement. Likewise, the Department of Labor has taken the position that an employer may not require an FMLA-eligible employee to accept reasonable accommodation instead of FMLA leave. An employer may offer accommodation or light duty but may not compel it. On the other hand, if an employee rejects an offer of employment that is within his or her medical restrictions, an employer may contest the employee’s entitlement to workers’ compensation indemnity benefits. In addition, if an employee voluntarily accepts light duty, an employer may not designate time on light duty as FMLA leave, as the employee is working. However, time spent on light duty does not lessen an employee’s right to be restored to the same or an equivalent position held at the time leave commenced. Some employers raise questions about a perceived conflict between the FMLA provision allowing employers to ask for certification of a serious health condition and the ADA restrictions on disability-related inquires by employees (Bruye`re and Reiter 2012). Occupational Safety and Health Act of 1970 (OSHA) OSHA represents the culmination of nearly a century of Congress’s growing concern for workplace safety (Rothstein 1990). The earliest laws concerning the health and safety of employees were enacted at the state level and were in place in some form in 46 states by 1921. These laws were not substantially preventive, and unfortunately their existence did little to curb the actual occurrence of incidents. However, workers’ compensation schemes, also at the state level, made it possible for employees to recover damages from their employers for injuries incurred on the job, as well as allow the families of victims of industrial accidents some relief for their predicaments. Throughout the twentieth century, laws were passed in response to specific workplace health issues: the Esch Act of 1912 curtailed phosphorous use in match factories; the Coal Mine Safety Act of 1952 was passed after 119 miners were killed in West Frankfort, Illinois a year earlier; the Construction Safety Act of 1969 addressed safety issues on construction sites of public works. Still, no piece of legislation covered all safety and health issues in every workplace for every employee until the passage of OSHA in 1970. Unlike some other employment regulation, OSHA is applied universally to all employers, regardless of the volume of business they conduct, or the number of people in their employ (Bruye`re et al. 2010a). At OSHA’s core is the recognition that every worker has a right to a workplace which is free from recognized hazards. Therefore, when a potential hazard is identified, the OSH Administration, through the Labor Department, develops a
98 T.P. Golden et al. standard against which workplace practices or conditions should be measured. Standards are issued by three procedures—one for interim standards, one for permanent standards and one for emergency temporary standards. Investigation and evaluation of a standard-warranting situation begins when the OSH Adminis- tration becomes aware of pertinent information about that situation. With the exception of emergency hazards which require immediate precautionary treatment, a committee of no more than 15 members will be assigned to determine an appropriate standard within a 260-day period from the committee’s assignment. The committee’s recommendations are submitted and reviewed by all affected parties, comments are taken from interested persons, and a public hearing is held. The OSH Administration then decides to accept their recommended standard, or to deny it based on stated reasons. After the implementation of a standard, the Labor Department can determine which workplaces will be inspected—either by the request of an employee in the particular workplace, or at the OSH Administration’s discretion. Inspections are conducted with the permission of the employer, and according to OSHA guidelines. Violations of a standard are punishable by government ordered abatement and monetary fines, set according to the size of the business, the seriousness of the violation, the good faith of the employer and the record of prior violations. Violations which result in the death of an employee can be punished by criminal law. Some of the issues surrounding this piece of legislation include the interplay with employment screening prohibitions, medical confidentiality of records, and accommodations required under the ADA. The ADA’s limitations on employee testing can be in conflict with OSHA’s need for testing to achieve workplace safety goals. The ADA also requires strict confidentiality of medical records. OSHA, on the other hand, requires employers to provide employees, their representatives with signed authorizations, and OSHA personnel access to such records in the interest of exposing potential hazards and their causes. By having the employee sign an information release, the employer can better assure that the information being released stays in the appropriate hands, and that the ADA confidentiality require- ments are not violated. Although OSHA requirements can often take precedence over the ADA require- ments to assure health and safety requirements are being adhered to, the reasonable accommodation element of the ADA can still be applied to OSHA-mandated policies and modifications (Bruye`re 2010). Social Security Disability Insurance A Supreme Court decision from 1999 crystalized the dilemma between the defini- tions of disability under the ADA and those used by the Social Security Adminis- tration in defining eligibility for disability benefits under Social Security Disability Insurance (SSDI) (National Council on Disability 2002). After suffering a disabling
4 New Approaches to Disability in Social Policy: The Case of the United States 99 stroke and losing her job, Carolyn Cleveland sought and obtained SSDI benefits from the Social Security Administration (SSA). She has also brought this ADA suit in which she claims that her former employer, Policy Management Systems Cor- poration, discriminated against her on account of her disability. The apparent contradiction was that Social Security Disability Insurance (SSDI) program indeed is designed to provide benefits to a person with a disability so severe that he/she is unable to do their previous work and cannot engage in any other kind of substantial gainful work. This case asked whether the law erects a special presumption that would significantly inhibit an SSDI recipient from simul- taneously pursuing an action for disability discrimination under the Americans with Disabilities Act of 1990 (ADA), claiming that with reasonable accommodation she could perform the essential functions of her job. The court held that these two seemingly divergent statutory contentions are often consistent, each with the other. Thus pursuit, and receipt, of SSDI benefits does not automatically prevent the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA. None- theless, an ADA plaintiff cannot simply ignore his or her SSDI contention that they were too disabled to work. The claimant must therefore explain why it is that the SSDI contention is consistent with his/her ADA claim that the claimant can “perform the essential functions” of his/her previous job, at least with “reasonable accommodation.” 4.3.2 The Ticket to Work and Work Incentives Improvement Act of 1999 The Ticket to Work and Work Incentives Improvement Act of 1999 (Ticket to Work Act) was a premiere effort on the part of the U.S. Congress to remove several policy roadblocks to work and create a demand-driven system that supported beneficiary choice in employment. Most unique to the Ticket to Work Act was a provision to create the Ticket to Work and Work Incentives Advisory Panel (the Panel) to provide counsel to the President, Congress and the SSA on effective implementation of the law. The Panel was a bi-partisan effort with four members appointed by each side of Congress and four members appointed by the President. The Panel was to include individuals with disabilities and was crafted to be a driving force in the effective implementation and roll out of the provisions of the Ticket to Work Act—an important quality assurance vehicle for ensuring the Act achieved its primary objectives. The Work Incentives Outreach provision of the Act focused on the development of a national infrastructure for work incentives outreach and education. It included three prongs, development of a corps of work incentive specialists within the SSA, a national external network of benefits and work incentives planning and assistance practitioners, and protection and advocacy services and supports for beneficiaries of
100 T.P. Golden et al. Social Security. Coupled together, these aspects would provide beneficiaries with the information they needed to make informed choices regarding how work would impact their entitlements and to develop a plan for employment support. Another important aspect of the Act was the removal of several policy barriers to work. This included the option for states to develop Medicaid Buy-In programs; an extension of Medicare providing for up to eight and one half years of additional healthcare coverage once a DI beneficiary returned to work; development of a provision for expedited reinstatement of benefits affording individuals who returned to work but because of their disability had to stop working once their benefits were terminated to have easy back on access to entitlements; and pro- tections under certain circumstances from continuing disability reviews conducted by the SSA to determine adherence to the disability standards. The Ticket to Work and Self-Sufficiency Program (The Ticket Program) was an entirely new way for the SSA to approach providing beneficiaries with access to employment services. The Ticket Program is a purely demand-driven program that establishes a national infrastructure of Employment Networks (ENs), contracted with by SSA, from which eligible beneficiaries (between the ages of 18–64) can seek the services and supports they need to obtain and retain employment and reduce their dependency on cash benefit programs. One of the primary purposes of the Ticket Program was to expand the universe of providers available to provide beneficiaries with access to VR, employment service, and/or other supports needed to achieve an employment outcome. Eligible beneficiaries receive a Ticket in the mail which they can in turn deposit with the EN of their choosing. ENs have the option to take or reject a Ticket and once they have agreed to take a Ticket will work with the beneficiary to develop an individualized work plan. The Ticket Program is completely voluntary and at any time a beneficiary can retract their Ticket from an EN and re-deposit it elsewhere if preferred. This “demand-driven” aspect of the program places the primary locus of control with the beneficiary and ideally ENs compete with one another for business with satisfaction dictated by whether or not the beneficiary received the services agreed to and achieved the employment objectives of interest. As a beneficiary makes progress toward their preferred and documented work goals and is engaged in work at certain prescribed levels, the EN is paid a portion of the savings to the SSA for having supported the beneficiary in achieving their goal. The Ticket is not a service-based contract and ENs are not paid for services rendered but rather for outcomes achieved by the beneficiary. The Act also included several other requirements for the SSA to test a $1 for $2 demonstration under the DI program as well as an early intervention demonstration to test the impact of an early intervention model of employment outcomes.
4 New Approaches to Disability in Social Policy: The Case of the United States 101 4.3.2.1 Impact of the Ticket to Work Act from a Policy to Practice Perspective The impact of the Ticket to Work Act is complex to evaluate. The work incentives outreach provision has been met with success and challenges on several primary fronts. While a customer satisfaction survey conducted by the Ticket to Work and Work Incentives Advisory Panel (2004) of a random sampling of 1,764 beneficia- ries having accessed benefits planning, assistance and outreach services, authorized under the work incentives outreach provision of the law, found that 89 % of respondents rated the counseling they received as “good,” 94 % felt the information they received was correct and that 21 % began working subsequent to having received benefits counseling, only 43 % of respondents stated that the benefits counselor contacted someone on their behalf to move them into employment- documenting a potential disconnect of this service as a vital employment support. This is further substantiated by the apparent decline in work incentive utilization among beneficiaries over the past several years (Ticket to Work and Work Incen- tives Advisory Panel 2007a, b). While this provision of the Act was premised on the need for beneficiaries to understand how their benefits would be impacted by earnings, it is clear that learning or knowledge-based objectives alone are not enough and that they must be coupled with behaviorally-based interventions that support the beneficiary in taking the first few steps toward employment and work incentives utilization. This provision of the law is currently under review by congress for re-authorization, and funding for the national external network of benefits and work incentives planning and assistance practitioners, and protection and advocacy services and supports for beneficiaries of Social Security lapsed in 2012. As mentioned earlier, Congress hoped that the creation of the Ticket Program would stimulate private sector providers and employers to participate and engender competition and empower beneficiaries with more choices and greater involvement in the employment and rehabilitation process. “Thousands of beneficiaries and their advocates shared a dream that the Ticket would greatly expand employment opportunities for people with disabilities. Three years after enactment it is clear that their dream is faltering.” This quote from the Panel’s 2004 report, “The Crisis in EN Participation” sums up the success of the program to date. The report further highlighted that SSA’s initial regulations for the program did not go far enough to decouple the Ticket from other programs and revenue streams—identifying the Ticket as a supplemental funding source. Further, SSA placed the burden of risk completely on ENs in that they had to bolster all up-front costs and wait a minimum of a 60 month period before realizing all outcomes payments available under the program—leaving many ENs to say “too little, too late.” Finally, there was a growing national concern that the program was ineffectually marketed and ENs, beneficiaries and other stakeholders in the employment process were ill-equipped and prepared to meet the demands of this program and paradigm shift it represented from service-based funding structures. In 2008, the SSA implemented a new set of
102 T.P. Golden et al. regulations designed to increase payments to ENs, decrease the time beneficiaries must be off the rolls before ENs can receive full payment, and allow beneficiaries to receive services after utilizing SSA funded services at state vocational rehabilita- tion agencies.6 As of February 2012 (SSA 2012) the Ticket Program had 834 ENs participating in the program. While over 13 million Tickets had been mailed as of August 2012, only 61,373 Tickets had been assigned to ENs or state VR agencies. Fewer than 10 % of those tickets were actually assigned with ENs, leaving the majority of beneficiaries still being predominantly served by the state/federal VR system. While the most recent regulatory changes were in direct response to challenges being faced by ENs to participate in the program, it appears that these changes have not increased participation rates. Initially, an external evaluation of the Ticket to Work Program (Thornton et al. 2006) referenced that SSA had successfully implemented the Program as originally designed and that while beneficiary partic- ipation continues to grow, it remains low. The study purported that the program has unrealized potential and that while there remained reasons to be cautiously opti- mistic, substantial modifications are needed. The Ticket to Work Act provides a poignant example of how effective employment and disability policy is a necessary balance of effective policy that provides incentives to operationalize the provisions while at the same time managing risk and removing barriers and creating incentives for beneficiaries to work. A move toward demand-driven services challenges the traditional U.S. service-based contract approach in that it shifts U.S. from a service- based focus to an outcome-based focus—with increased emphasis on not just an employment outcome but the quality of these outcomes. Further it places increased focus on the fact that services provided and satisfaction are dictated by the con- sumer of services which places increased emphasis on customized and individual- ized supports. Finally, it forces current systems to create new and innovative approaches to supporting people with disabilities in achieving employment out- comes and requires a change in our thinking and how we prepare people for work. 4.4 Moving Employment and Disability Policy Forward in the U.S. Clearly the last three decades have seen a tremendous growth in the areas of economic, technological, medical and rehabilitative developments. These changes have enhanced opportunities for people with disabilities to live, learn and earn in more integrated and competitive settings and pursue greater economic indepen- dence. National statistics, however, continue to document a growing disparity between the population of people with and without disabilities. Add to these expanded opportunities the ramifications of social and legislative change and 6 http://www.mathematica-mpr.com/disability/tickettowork.asp.
4 New Approaches to Disability in Social Policy: The Case of the United States 103 judicial decisions supporting the increased community integration of people with disabilities and their civil rights and it becomes clear that perhaps current U.S. policies have not kept pace with these changes promoting more effective and creative employment practice. In the U.S., the insurance program (DI) rolls have continued to climb steadily upward, since once on benefits, few ever leave (Bruye`re et al. 2007). These statistics, coupled with the disparate outcomes achieved by this population in the state/federal VR system, portray a country in desperate need of policy reform. This reform must be focused on creating a progressive policy platform, a vehicle for implementing the policy (employers and service providers), and a series of incentives to make work pay for people with disabilities who might otherwise be entitled to a portfolio of federal and state entitlements. 4.4.1 Modernizing Federal Disability Policy In August, 2007 the GAO convened a forum of national disability policy experts to address some of the key issues related to modernizing federal disability policy in the U.S. (U.S. Government Accountability Office 2007). Experts brought together included employers, disability advocates, researchers, academics, and federal offi- cials. While the forum found that some partnerships and collaborations seemed to be helping to improve services and supports received by individuals with disabil- ities (i.e. income replacement, health care and work assistance), it was agreed that there was no federal system for disability that coordinated the myriad of disability programs that exist and no comprehensive lifetime picture of the needs represented by the population of people with disabilities. The study identified the need for increased coordination and leadership of the existing disability programs and that incentives needed to be created for the private sector to encourage employment opportunities for people with disabilities. Critical to participants in the study was the need to identify more effective disability standards which guide federal pro- grams and improve data collection efforts on the part of people with disabilities. It was agreed that evaluating existing work incentives and disincentives and coordi- nating a universal return-to-work agenda that removed complexities associated with return-to-work was vital to modernizing existing policy. Clearly, the align- ment of existing disability policy with twenty-first century realities will require regulatory and legislative action. Fiscal implications of new actions or proposals must be thoughtfully considered as the U.S. weighs what an investment in employ- ment might initially cost compared with what maintaining the current status quo will ultimately cost, as disparity between the employment outcomes of individuals with disabilities and those without continue to grow. In the final analysis, a progressive policy platform will balance innovation and risk, and will offer incen- tives equally to employers and service providers as well as to the persons with disabilities who are being encouraged to work.
104 T.P. Golden et al. 4.4.2 Employer and Provider Practices As the workforce ages, it is in the best interests of both businesses and employees to improve opportunities for the development, performance, and retention of workers with disabilities (Tishman et al. 2012). With the average age of the workforce increasing, workers with impairments and functional limitations will make up a larger percentage of our workforce; and the incidence, severity, and duration of disability is likely to also increase (Bjelland et al. 2010). As this occurs, it will become increasingly important to identify proven strategies for encouraging employees to return to a productive role at work as soon as is reasonable (Bruye`re et al. 2010c). There are public policies, workplace practices, and service delivery strategies which can be improved, to better contribute to these successful outcomes. Other factors that may influence employment are work environment, rehabilitation opportunities, and individual responses to external circumstances (Burkhauser and Houtenville 2008). Research conducted by Cornell University (Burkhauser et al. 2001, 2004) suggests that workers who were accommodated following the onset of a disability had significantly lower risks of applying for SSDI benefits within the first 3 years of onset. This again affirms the importance of accommodation—if the work environ- ment is supportive of the individual with a disability staying, and accommodations are provided, the likelihood of the worker leaving the workplace and migrating to long-term disability benefits is significantly lessened. Examples of other needed approaches in the workplace are adopting new management and supervisory styles and work setting protocols that focus on a diverse workforce that includes people with disabilities, as well as those who incur a work limitation with the aging process. There is a need for the elimination of disability-based discrimination in the workplace, and facilitation of a culture that minimizes stereotypes and maximizes a culture of inclusion is imperative. Also of importance is checking organizational communication mechanisms to make sure that the approaches used are truly inclusive for people with disabilities, incorpo- rating needed accessibility and usability features into all mediums employed. Rehabilitation and disability service providers also have a significant role to play in increasing the employment and retention of people with disabilities. The primary emphasis of proactive disability management when applied in the employment setting is preventing or minimizing the impact of the disability on the employer and employee and assisting in job retention for the disabled/injured worker (Bruye`re 2006). Clearly, in this context rehabilitation service provision represents a comprehensive set of intervention strategies which are necessary to effectively address the workplace accommodation needs of both people with disabilities and of an aging workforce.
4 New Approaches to Disability in Social Policy: The Case of the United States 105 4.4.3 Providing Incentives to Work for People with Disabilities Even if the right balance can be struck in a policy platform to support more effective employment outcomes and employers and service providers are equipped to meet the challenges in implementing the policy without incentives to work and removal of the barriers to work experienced by people with disabilities the policy will still fail. A Beneficiary Summit convened by the Ticket to Work and Work Incentives Advisory Panel (2007a, b) clearly highlighted that beneficiaries of SSA’s disability programs don’t feel the programs go far enough to incentivize work. Specifically, restrictions on healthcare pose a large obstacle to individuals even considering work out of fear of loss of this critical healthcare link. Evidence suggests that, despite recent efforts to provide health insurance for people with disabilities, health insurance coverage rates for individuals with disabilities have declined (Hill et al. 2003). Further, beneficiaries often cited that while one disability program may provide an incentive to work, that incentive is not recognized by another disability program creating an unintended consequence resulting in limited work potential. Most discouraging is the growing gap that exists between incomes of people with disabilities compared to those without. In 2011, the median household income of working-age people with disabilities was $36,700 in the U.S. as compared to $60,400 for those without disabilities (Erickson et al. 2012). Such studies of comparative wages suggest that the current service delivery paradigm does not afford quality jobs with livable wages for people with disabilities. However, others identify the problem as inherent in the current policies pertaining to federal and state entitlements which limit earning potential, or as a combination of issues. Regardless of where the blame lies, a set of incentives will need to focus on creating work opportunities that not only pay and move individuals toward greater economic self-sufficiency and close the earnings gap with their non-disabled counterparts but also provide opportunities for long-term healthcare to maintain wellness. Current policy obstacles and fragmentation that exist between and across the array of federal disability programs must be removed and a common, universal set of work incentives that apply across these programs needs to be created. 4.4.4 International Lessons to Be Learned: What Works in Employment Policy? Many countries are having some success with employment outcomes using various programs aimed at different populations of people with disabilities. However, before discussing which countries are successful, it is first important to acknowl- edge that all people with disabilities are not the same. Not only do people have different types of disabilities requiring different accommodations, but individuals
106 T.P. Golden et al. with disabilities are as diverse as the rest as non-disabled individuals in terms of age, gender, ethnic background, education levels, previous work experience, and so forth. Therefore what may work very well with one population may nevertheless fail miserably with another. It therefore makes sense to examine successful strategies from the perspective of what group or groups are the target audience and what problems are to be addressed. One way to examine this issue is to begin by identifying three distinct groups of persons with disabilities which may get further defined within the examples. The groups are: (1) young first time job seekers with disabilities; (2) workers in the labor force who develop disabling conditions; and (3) disabled individuals of various ages who have little or no previous job experience. The next section will look at some successful programs in various countries and the specific groups they affect and the problem(s) they were meant to address. 4.4.4.1 The United States The U.S. Work Force Recruitment Program The Workforce Recruitment Program (WRP) is a recruitment and referral program that connects federal and private sector employers nationwide with highly moti- vated college students and recent graduates with disabilities, including veterans, who are eager to prove their abilities in the workplace through summer or permanent jobs. The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) and the U.S. Department of Defense’s Office of Diversity Management & Equal Opportunity (ODMEO) manage the WRP. Since the program’s expansion in 1995, over 6,000 students and recent graduates have received temporary and permanent employment opportunities averaging around 600 placements per year. Targeted marketing and outreach has yielded an increase in veteran participation an overall growth of the program representing more than 2,900 candidates from 270 colleges and universities for 2013. Last year, 2,700 candidates were included in the WRP database, which illustrated a large increase from 2011 when there were 2,200 candidates available from 200 universities. Annually, trained WRP recruiters from federal agencies conduct personal inter- views with interested candidates on college and university campuses across the country. Candidates represent all majors, and range from college freshmen to graduate students and law students. Information from these candidate interviews is compiled in a searchable database that is available through www.wrp.org to Human Resources Specialists, Equal Employment Opportunity Specialists, and other hiring officials in federal agencies. Private sector employers can take advantage of the WRP through the National Employer Technical Assistance Center (NETAC), based at Cornell University’s Employment and Disability Institute. For additional information, please visit www.
4 New Approaches to Disability in Social Policy: The Case of the United States 107 AskEARN.org. Funded by ODEP, the Center provides resources for employers to source, hire, retain and advance qualified individuals and veterans with disabilities through information dissemination, training and technical assistance. 4.4.4.2 The Netherlands Workers Who Become Disabled Non-disabled workers who develop an impairment or disabling condition present a very different type of challenge. On the one hand, unlike the college students, they do have job experience, but on the other hand, they may not be able to do their old job anymore, or at least not without some type of accommodation. Therefore, it is also very important to take into account the context in which these employment strategies must operate. In the case of disabled workers, labor laws and practices are often crucial to the success or failure of return to work attempts. The employer’s willingness to accommodate the requirements of the newly disabled worker is often governed by the prevailing labor laws concerning right to dismissal, as well as how long the job must be held, who is paying the worker’s benefits, and for how long. Hence, the labor laws are very instrumental to the success or failure of return-to-work mea- sures. To illustrate the role that labor laws play in employment of people with disabilities, it is instructive to mention a six country, empirical study on return to work after back problems conducted by the International Social Security Associa- tion (ISSA) in 2001 (Bloch and Prins 2001). It turned out that the Dutch and the Danish cohorts were almost mirror images of each other as far as aspects such as age, education, work experience etc. However, at the 1 year measurement point, 73 % of the Dutch cohort was back to work and at the 2 year measurement point, there were still 72 % in work. On the other hand, the Danes had only 32 and 40 % at the respective measurement points. One very likely explanation is that he Dutch results reflect labor laws and practices that protect job status for 2 years and require the employer to take active steps to reintegrate the disabled worker. Moreover, at the time of the study, Dutch employers were required to pay the sick-listed worker for the first year; the public program started paying the second year (Now, the employer must pay for both years). Hence, 82 % of the Dutch cohort who returned to work did so with their old employer. Furthermore, in Sweden which has similar job protection laws, 86 % of the study cohort who returned to work did so with their former employer. In contrast, Denmark allows employers to dismiss sick workers after 120 days. Hence, the return to work rate with the old employer was only 42 % among the Danish cohort. The ISSA study clearly illustrated the importance of employers’ attitudes towards reintegration. Both in the Dutch and Swedish examples, the use of part- time work was very high. Moreover, employers demonstrated great flexibility by allowing workers to try returning to work slowly and by providing accommodations through adapting the nature and pace of the work. Also, the Dutch who were once
108 T.P. Golden et al. notorious for the high number of disability beneficiaries are starting to see some positive results and savings in social costs. 4.4.4.3 Brazil Disabled Individuals with Little or No Previous Job Experience The third group mentioned above consists of individuals with little or no work experience. They may be college students, but typically are not. Around the world, for a variety of reasons, they tend to be people who did not gain access to general education or did not go very far with it. In essence, they almost always need training in all of the basics of pursuing, acquiring and retaining employment. In addition, many of these individuals are trying to access the work force in climates with high unemployment. With a population of about 200 million people, of whom 68 % are aged 15–64, Brazil is the world’s fifth largest country. With a vibrant and rapidly growing economy, Brazil is no longer classified as a, developing country and the effect of this growth has been to raise up even those at the lower economic levels and to show demonstrable progress. In 2012, unemploy- ment fell to a 10 year low of 5.5 %, down from over 12 % in 2003 (Instituto Brasiliero de Geografia e Estatistica 2013). However, economists caution that these positive figures oversimplify the real picture of the Brazilian economy because of the still large disparity between the wealthy southern part of the country and the poverty of the Northeastern part. There are still some major variations between social groups and geographical regions. About 16.2 million Brazilians—8.5 % percent of the population—lives- below the poverty line and are deemed by the government to be in a situation of extreme poverty, meaning they are living on less than US$1.25 per day. Despite these sociological realities, Brazil has made great strides in employment for people with disabilities. The estimates from the 2010 Census are that there are some 24.5 million Brazilians with disabilities—about 14.5 % of the population. In 1988, as today, these CILs get no money or financial support of any kind from the Brazilian government who simply did not have them to give. Realizing that they would need to create their own funding source, they decided to function, at least in part, as a personnel agency for disabled Brazilians who wanted to work or return to work. They took advantage of a freeze on hiring new public servants that had been in place for several years, by negotiating an agreement with the government that the only people who could be hired to fill public sector vacancies would be people with disabilities. The CIL agreed to recruit, train and place the disabled workers who would be job ready and capable of stepping into the specific jobs as they became vacant. In exchange the CIL would receive fees just as any personnel agency does. These fees sustain the programs and that is how they continue to be self-supporting. Today the public sector has a great number of disabled workers in all the utilities, the state- owned oil company, and, of course in the governmental agencies. The model has
4 New Approaches to Disability in Social Policy: The Case of the United States 109 been working for so many years now that it is becoming quite commonplace that people at higher levels of government who have risen through the ranks are often individuals with disabilities. Brazil has also taken many other steps to improve the situation of persons with disabilities including introducing and implementing a quota system; incorporating people with disabilities as a specifically-mentioned group in the non-discrimination language of their Constitution; creating a specific magisterial office to deal with discrimination charges; and passing laws to improve accessibility of the infrastructure. These policies toward encouraging employment have resulted in demonstrable progress. The 2010 census found that workers with disabilities represent 23.6 % of all those employed in Brazil according to the IBGE. Specifically of all of the 86.4 million Brazilians employed, 20.4 million have some disability (visual, auditory, motor, mental, or intellectual). The Northeast of the country has the greatest concentration of people with disabilities—45 million. With regard to wages, the research found that workers with disabilities are more likely to be at the lower level of compensation with 46 % of workers with disabilities receiving up to the minimum salary as compared to 37.1 % of non-disabled (Garcia 2012). 4.4.4.4 The United Kingdom Sometimes the problems to be solved are not related to whether someone worked or not, but instead, are generic to many disabled individuals who try working. Two key such problems are: (1) Making work pay; and (2) Covering the costs of accommo- dations. Both of these issues have been addressed in the UK. The Disabled Person’s Tax Credit (DPTC) helps neutralize the additional costs of working while disabled. To qualify, individuals must work at least 16 h a week and satisfy a “disability test” and be in receipt of a “qualifying benefit”. The applicant must have a “physical or mental disability that puts him or her at a disadvantage in getting a job. There are four possible types of disability-related benefits-, any one of which serves as the claimant meeting the qualifying benefit aspect. At the date of the claim, the individual must have a disability likely to last at least 6 months and have gross earnings less than they were before the disability began by at least 20 % or £15 a week, whichever is greater. The person with a disability can receive up to £2,790 a year and those with a severe disability up to £1,190 a year which is paid on top of the disability payment. The amount of the DPTC depends on the number of hours worked and the severity of the condition so it helps people who can work only part-time too. The supplement is paid by the employer right in the worker’s paycheck or into a bank account and workers with children may also qualify for childcare tax credits. The Access to Work Program (AtW) Introduced in 1994, and open to those covered by the Disability Discrimination Act (DDA) and those not covered by it because their disability affects them only at work. They must be in need of support to take up, progress in or work on an equal basis with non-disabled colleagues. The
110 T.P. Golden et al. AtW allows the employer to buy the support needed and then claim back a grant from the program (self-employed individuals can also qualify). The employer pays the first ₤300, after which the support is 80 % for costs between ₤3,000 and ₤10,000 and 100 % for costs over ₤10,000. Certain other costs, such as those related to getting to and from work and communicator support, are paid at 100 %. The help is for a maximum of 3 years after which the Employment Service reviews the circumstances. The latest information indicates that the UK government is spending more than £100 million to help disabled people in mainstream work by providing specially adapted equipment, support workers and interpreters. The UK government wanted to try to study the impact of the AtW but since there is no natural control group, they decided to use a case study approach (n ¼ 87 + 30 self-employed individuals). The results clearly demonstrated a substantial net impact of the program. For example, in 2003, the AtW helped some 45,000 disabled individuals enter or sustain their work position. Of that 45,000, 10 % were new job entrants; the remaining 90 % were in work but used AtW to sustain their position after onset of sickness or disability. The average cost per person supported was ₤1,262 and utilization was fairly evenly split among Special Aids and Equipment; Travel to Work; and Support Workers. Among the key findings was thus the importance of Support Workers to disabled individuals ability to take up or sustain a job. More recent data from the UK Government shows that “45% of access to work customers would be out of work if they did not receive support through the scheme” (Department for Work and Pensions 2012b). The success of the AtW program led the UK government in July 2012 to announce the expansion in the fall of the support to young disabled jobseekers on work experience. Until this change, the AtW scheme was only available to those in paid work, but the extension means that those doing work experience placements are also eligible as well. This also means that that more young disabled people can take advantage of the 100,000 work experience places offered by the government each year to help them get the skills they need to find work. The Government estimates, over 3 years, that the change will help up to 15,000 young disabled people to take their first steps toward employment by supporting them to benefit from a voluntary work experience placement over the next 3 years. In addition, in November 2012, the UK government announced further expan- sion of the Access to Work scheme by extending more support to entrepreneurs and small businesses. Specifically, businesses with up to 49 employees no longer pay a contribution towards the extra costs faced by disabled people in work—a savings of up to £2,300 per employee who uses the fund. In addition, disabled jobseekers who want to set up their own business through the NEW Enterprise Allowance will now be eligible for Access to Work funding form the first day of receiving the Job seekers allowance. Finally AtW advisers will be given more flexibility in deciding which equipment is funded through the scheme and thus offering more choices to disabled people in work (Department for Work and Pensions 2012a). The now relatively long-term experience of the Access to Work scheme has proven that if the Government provides support to cover the extra costs of working incurred because of the disability, it can level the playing field and people with
4 New Approaches to Disability in Social Policy: The Case of the United States 111 disabilities will likely succeed in their work efforts. Although the empirical evi- dence is there the Access to Work is effective and efficacious, there are still problems because the program has been called “the Government’s best kept secret”. Thus, to raise awareness of the changes, the UK Government will expand its marketing campaign and particularly target young disabled people and those with mental health conditions. The above-mentioned programs are just part of a “menu” of government-paid benefits in the UK aimed at encouraging people with disabilities to work by helping to support not only their additional costs, but also their transition from benefit dependency to work. Space does not permit discussion of all the programs and rules but interested readers should also see Work Choice which is a voluntary type of support for people who are disabled and find it hard to work. It varies depending on the individual circumstances, but can include training and skills development; confidence building; and interview coaching. More information on these and other forms of UK Government help is available on their website: www.dwp.gov.uk. In summary, strategies to promote first time employment or return to work for people with disabilities require individual approaches and creative solutions because what works in one country or even with one specific group of individuals with disabilities may not work in another. Even the locale where these strategies are to be used is very important to take into account when designing such programs. However, the most important aspect is that policies and programs must be aligned and all must promote the goal of helping people with disabilities maximize their remaining abilities instead of focusing on their limitations. A final overarching maxim is that “work must pay” i.e. employment policies and programs for people with disabilities should work in tandem, so that people who work despite having a disability are not punished for working or better off financially opting for disability pensions instead of work. References Bjelland M, Bruye`re S, von Schrader S, Houtenville A, Ruiz-Quintanilla A, Webber D (2010) Age and disability employment discrimination: occupational rehabilitation implications. J Occup Rehabil 20:456–471 Blessing C, Golden TP, Pi S, VanLooy S (2011) Vocational rehabilitation, inclusion, and social integration. In: Kennedy P (ed) Oxford handbook of rehabilitation psychology. Oxford Uni- versity Press, New York Bloch FS, Prins R (2001) Who returns to work and why?: a six country study on work incapacity & reintegration. The International Social Security Association, Geneva Bruye`re SM (2006) Disability management: key concepts and techniques for an aging workforce. Int J Disabil Manag Res 1:149–158 Bruye`re SM (2010) Occupational safety and health and disability nondiscrimination in the workplace: complying with dual requirements. Cornell University, ILR School, Employment and Disability Institute, Ithaca. Retrieved from http://www.ilr.cornell.edu/edi/hr_tips/article_ 1.cfm?b_id¼34 Bruye`re S, Barrington L (2012) Employment and work. Sage Reference, Los Angeles
112 T.P. Golden et al. Bruye`re S, Reiter B (2012) Disability policy and law. In: Maki D, Tarvydas V (eds) The professional practice of rehabilitation counseling. Springer, New York Bruye`re S, Erickson W, VanLooy S, Hirsch E, Cook J, Burke J, Farah L, Morris M (2006) Employment and disability policy: recommendations for a social sciences research agenda. In: Heinemann A, Hagglund K (eds) Handbook of applied disability and rehabilitation research. Springer, New York Bruye`re S, Golden T, Zeitzer I (2007) Evaluation and future prospect of U.S. return to work policies for Social Security beneficiaries. Disabil Employ 17:53–90 Bruye`re S, Golden T, Cebula R (2010a) Legislation affecting employment for persons with disabilities. In: Parker R, Szymanski E (eds) Work and disability, 3rd edn. Pro-Ed, Austin Bruye`re S, VanLooy S, Golden T (2010b) Legislation and rehabilitation service delivery. In: Flanagan S, Zaretsky H, Moroz A (eds) Medical aspects of disability: a handbook for the rehabilitation professional, 4th edn. Springer, New York Bruye`re SM, von Schrader S, Coduti W, Bjelland M (2010c) United States employment disability discrimination charges: implications for disability management practice. Int J Disab Manag 5 (2):48–58. doi:10.1375/jdmr.5.2.48 Burkhauser R, Butler J, Weathers R (2001) How policy variables influence the timing of Social Security Disability Insurance applications. Soc Secur Bull 64(1):52–83 Burkhauser R, Butler J, Gu¨mu¨s G (2004) Dynamic programming model estimates of Social Security Disability Insurance application timing. J Appl Econ 19:671–685 Burkhauser R, Houtenville A (2008) Employment among working age people with disabilities: what the latest data can tell us. Cornell University, Ithaca. http://digitalcommons.ilr.cornell. edu/edicollect/1247/ Council of State Administrators for Vocational Rehabilitation (2012) Investing in America: the public vocational rehabilitation. Council of State Administrators of Vocational Rehabilitation, Washington, DC Department for Work & Pensions (2012a) Drive to get more disabled people into mainstream jobs through Access to Work [press release]. Retrieved from http://www.dwp.gov.uk/newsroom/ press-releases/2012/nov-2012/dwp122-12.shtml Department for Work & Pensions (2012b) Government expands vital in-work support to disabled young people [press release]. Retrieved from http://www.dwp.gov.uk/newsroom/press- releases/2012/jul-2012/dwp074–12.shtml Department of Labor (2007) Workforce Investment Act of 1998. Retrieved 8 October 2007 from http://www.doleta.gov/usworkforce/wia/wialaw.txt DeWitt L (1997) Never a finished thing: a brief biography of Arthur J. Altmeyer, the man FDR called “Mr. Social Security.” Retrieved from http://www.ssa.gov/history/bioaja.html DisabilityInfo.gov (2007) One-Stop Career Centers: links to further resources. Retrieved 8 October 2007 from http://disabilityinfo.gov/Employment/33/249/ Dortch C (2011, January 31). The Post-9/11 Veterans Educational Assistance Improvement Act of 2012, as enacted. Congressional Research Service, Washington, DC Erickson W, Lee C, von Schrader S (2012) 2011 Disability Status Report: United States. Cornell University Employment and Disability Institute (EDI), Ithaca Garcia V (2012) Trabalhadores com Deficiencia Representam 23.6 % do total de ocupados no Brasil diz com-IBGE. Retrieved from http://www.deficienteciente.com.br/2012/07/traabalhadores- com-deficiencia-representam-236-do-total-de-ocupados-no-brasil-diz-ibge.html Hayward B, Schmidt-Davis H (2002) Longitudinal study of the Vocational Rehabilitation Services program—fourth final report: results of the VR program. Report submitted to the Rehabilita- tion Services Administration, ED Contract No. HR92022001. Retrieved from http://www. lsvrsp.org/PublishedResearchFiles/RTI_4thFINAL_Report.pdf Hill S, Livermore G, Houtenville A (2003) Rising costs of health care expenditures and the employment of people with high cost chronic conditions. In: Stapleton D, Burkhauser R (eds) The decline in employment of people with disabilities: a policy puzzle. W.E. Upjohn Institute, Kalamazoo
4 New Approaches to Disability in Social Policy: The Case of the United States 113 Hiring Heroes Act of 2011, S.951, 112 Cong. (2011) Imel S (1999) One Stop Career Centers (ERIC Digest No. 208). ERIC Document Reproduction Service No. ED434244. ERIC Clearinghouse on Adult, Career, and Vocational Education, Columbus Instituto Brasiliero de Geografia e Estatistica (2013) Monthly employment surveys. Retrieved from http://www.ibge.gov.br/english/ Inter-American Committee on Social Security (1942) Meeting of the Inter-American Committee on Social Security, Santiago, 10 September 1942 Kundu M, Schiro-Geist C (2007) Legislative aspects of rehabilitation. In: Leung P, Flowers C, Talley WB, Sanderson PR (eds) Multicultural issues in rehabilitation and allied health. Aspen Professional Services, Linn Creek Morris M, Farah L (2001) Review of state plans for the Workforce Investment Act from a disability policy framework. The University of Iowa, Rehabilitation Research and Training Center on Workforce Investment and Employment Policy for Persons with Disability, Iowa City National Council on Disability (2002) Supreme Court decisions interpreting the Americans with Disabilities Act. The Americans with Disabilities Act Policy Brief Series: righting the ADA. Retrieved 12 February 2004 from http://www.ncd.gov/newsroom/publications/2002/publica tions.htm National Council on Disability (2003) The impact of the Supreme Court’s decisions on the rights of persons with disabilities. Retrieved 10 October 2007 from http://www.ncd.gov/newsroom/ publications/2003/decisionsimpact.htm Patterson J, Bruye`re S, Szymanski E, Jenkins W (2011) Philosophical, historical, and legislative aspects of the rehabilitation counseling profession. In: Parker RM, Patterson JB (eds) Reha- bilitation counseling: basics and beyond, 5th edn. Pro-Ed, Austin Regulations to implement the equal employment provisions of the Americans with Disabilities Act, as amended, 76 FR 16977 (2011) (to be codified at 29C.F. R. 1630). Rothstein MA (1990) Occupational safety and health law, 3rd edn. West Publishing Co, St. Paul Scott M (1996) Compliance with ADA, FMLA, workers’ compensation, and other laws requires road map. Employee Benefit Plan Rev 50(9):20–30 Social Security Administration (2010) Social Security handbook. Social Security Administration, Baltimore Social Security Administration (2012) Ticket to work August monthly status report. Retrieved from http://www.socialsecurity.gov/work/enpayments_stats.html Stapleton DC, Erickson WA (2005) Characteristics or incentives: why do employment outcomes for the SSA beneficiary clients of VR Agencies differ, on average, from those of other clients? Cornell University, Ithaca Storen D, Dixon KA, Funaro A (2002) One-Stop accessibility: a nationwide survey of One-Stop Centers on services for people with disabilities. Rehabilitation Research and Training Center on Workforce Investment and Employment Policy for Persons with Disabilities, Rutgers University, New Brunswick Thornton C, Fraker T, Livermore G, Stapleton D, O’Day B, Silva T, Sama Mutin E, Kregel J, Wright D (2006) Evaluation of the Ticket to Work Program: Implementation experience during the second two years of operation (2003–2004). Mathematica Policy Research, Washington, DC Ticket to Work and Work Incentives Advisory Panel (2004) The crisis in EN participation: a blueprint for action. Social Security Administration, Baltimore Ticket to Work and Work Incentives Advisory Panel (2007a) Voices for change: beneficiaries paving the way to work. A roadmap to program improvement. Social Security Administration, Baltimore Ticket to Work and Work Incentives Advisory Panel (2007b) Update, simplify and educate: a national call to optimize incentives to work. Social Security Administration, Baltimore
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Chapter 5 Higher Education and Social Policy: The Case of the United States Risa L. Lieberwitz Abstract The institutional character of U.S. universities and colleges has been based, traditionally, on the social policies of public mission and academic freedom. In a liberal democracy, this distinguishes the university from private for-profit economic institutions. However, universities have sought to maintain independence from industry, while simultaneously interacting with it. Since the 1980s, this negotiation has been affected by the growth of privatization policies that have encouraged universities to expand their relationships in the private economic sphere through increased market activities. This chapter explores the negative conse- quences of such privatization policy on the university’s independence and its public mission. This study addresses, as well, how these developments alter traditional values of faculty academic freedom and the communal culture of the university. 5.1 Introduction Social policy in the United States, as in other liberal democracies, is created by both public and private institutions. In the case of higher education, public governmental institutions use legislative, judicial, and administrative functions to make policy that affects universities. Public policy runs the gamut from legislation creating a state university, to public funding supporting teaching and research at public and private universities, to judicial interpretation of faculty and student rights. Much social policy in higher education, however, is made by the universities themselves. One of the key policies adopted by both state and private higher education institu- tions is the university’s public mission. Flowing from this institutional mission is the university’s social policy of independence and faculty academic freedom. R.L. Lieberwitz (*) 115 School of Industrial and Labor Relations, Cornell University, Ithaca, NY, USA e-mail: [email protected] T. Dereli et al. (eds.), Labor and Employment Relations in a Globalized World, Contributions to Economics, DOI 10.1007/978-3-319-04349-4_5, © Springer International Publishing Switzerland 2014
116 R.L. Lieberwitz This chapter analyzes the institutional character of higher education based on the social policies of public mission and academic freedom. Focusing on higher education in the U.S. places the university in its social context of a liberal democ- racy, which distinguishes the public sphere of democratic political institutions from the private sphere of capitalist economic institutions. Universities and colleges have traditionally sought to maintain autonomy between these two spheres while simul- taneously interacting with them. Since the 1980s, this negotiation between the public and private spheres has been affected by the growth of privatization policies that have encouraged universities to expand their relationships in the private sphere through increased market activities. The chapter explores the consequences of such privatization policy for the university’s independence and its public mission. This study addresses, as well, the consequences of these developments for the content of teaching and research, the culture of the university, and the scope of academic freedom. 5.2 The University’s Public and Private Character Universities in liberal democracies exist simultaneously in the public and private spheres. The public sphere is comprised of political democratic institutions, while capitalist economic institutions dominate the private sphere. Within a democratic political system, public governmental institutions’ purpose is to serve the public welfare. The public sphere is also identified with political democratic rights, such as freedom of speech, voting rights, and due process. The private economic sphere includes for-profit businesses that exist to serve private economic interests. In this sphere, a system of hierarchical, non-democratic relationships is the norm, with control defined in terms of the private ownership of capital (Lieberwitz 2002, p. 75). The university in a liberal democracy has a dual character that reflects competing visions of the role of higher education. On one hand, the university is an institution with a public mission of education. The university has much in common with other public or nonprofit societal institutions that serve the public interest, including primary and secondary schools and governmental institutions that address public health and welfare concerns. The U.S. Supreme Court has described the university and its faculty as playing “a vital role in a democracy” (Sweezy v. New Hampshire 1957, p. 250). Similar to other public institutions, democratic norms are part of both public and private universities. As the Court has emphasized, “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die” (250). Academic freedom enables faculty to freely express themselves in their teaching, research, and public speech. On the other hand, the university has fulfilled an important role in the private sector by educating future employees and business leaders and by engaging in academic research of interest to industry. Long before the privatization trends of the 1980s, universities had significant relationships with industry. In 1862, with the
5 Higher Education and Social Policy: The Case of the United States 117 federal grant of land to universities, Congress promoted the goal of providing education and training for students who would enter the growing industries, such as manufacturing and commercial agricultural ventures. The land grant colleges also provided applied research for industry and agriculture performed by faculty in new departments, such as agriculture, mechanical arts, commerce, and business admin- istration (Lieberwitz 2002, p. 79). Further, as industrialization strengthened in the late 1800s and early 1900s, for-profit corporations increased their financial contri- butions to universities from the thousands to the millions of dollars. Along with this financial support came corporate expectations that universities would serve business interests through teaching and research (Lieberwitz 2002, pp. 78–79). How have universities maintained this dual public/private character? Tradition- ally, the university has functioned within this duality by guarding a significant degree of autonomy from governmental and business institutions. Given the close relations that exist between the university and other institutions, however, such independence is difficult to maintain. Central to achieving a meaningful degree of independence have been professional norms of academic freedom that enable faculty to carry out the university’s public mission. 5.3 Academic Freedom: Central Values in Higher Education 5.3.1 A Brief History of Professional Academic Freedom in the United States Universities and faculty did not easily gain institutional and individual autonomy. Academic freedom in the U.S. resulted from hard fought collective struggles by faculty, beginning in the late nineteenth century, as U.S. universities transformed from ecclesiastic to secular institutions. This period coincided with the wide adoption of the scientific method, influenced by the work of Darwin. Faculty in the natural sciences relied on their scientific expertise to justify their demands for independence, first from ecclesiastical boards of trustees and then from secular university boards of trustees (Byrne 1989, pp. 269–276; Hofstadter and Metzger 1955, p. 365). During this period, faculty in the newly developing social sciences also demanded similar autonomy from boards of trustees (Byrne 1989, p. 271, n. 79). These demands were more difficult to achieve, however, given the clash between the growing industrialist class—including large corporate donors to uni- versities—and the social science faculty, who often criticized corporate practices in industry, such as exploitation of immigrant labor. The conflict resulted in several notorious discharges or forced resignations of social science faculty who sought to achieve social reform through their critiques (Schrecker 1986, pp. 14–17).
118 R.L. Lieberwitz Faced with these acts of repression by their university employers, faculty took collective action, forming the American Association of University Professors (AAUP). The AAUP 1915 Declaration of Principles (Joughin 1967, pp. 155–172) and its subsequent 1940 Statement of Principles on Academic Freedom and Tenure (AAUP 1940) describe the foundational principles of academic freedom, broadly defined to include faculty teaching, research, and extramural speech. These docu- ments justify faculty academic freedom as instrumental to the university’s social role of serving the public good. Indeed, the university’s legitimacy depends on its autonomy from vested interests. To act in the public interest, universities and faculty must be independent institutions in society, free from conflicting interests—including financial interests of third party corporate funders (Lieberwitz 2002, pp. 80–84). Academic freedom, which encompasses individual rights of faculty autonomy and collective rights of faculty self-governance, provides faculty with the independence to pursue teaching and research free from pressures by the administration, trustees, legislators, or private financial donors. The AAUP state- ments define a broad scope of academic freedom not only in teaching and research, but also in faculty public speech on or off campus and on subjects outside their academic disciplines. The AAUP statements describe faculty tenure as essential to providing life-time job security that protects faculty from retaliation for engaging in controversial work. Faculty hiring and promotions to tenure would be awarded on the basis of peer review. Such collective autonomy is part of faculty governance, which protects academic freedom of individuals and the profession (Lieberwitz 2002, pp. 80–84). The AAUP succeeded in creating academic freedom as an institutionalized professional norm in higher education. Since the AAUP’s founding in 1915, U.S. university administrations and faculty have internalized these professional norms. University mission statements explicitly state their public interest goals (Johnston 2007, p. 164). University faculty exercise academic freedom in choosing their teaching and research agendas and in engaging in public speech on a broad range of issues. Academic freedom applies to the individual autonomy of the faculty member and to collective faculty self-governance in judging the merit of peers’ work and in participation in university governance. Traditional values of academic freedom and the university’s public mission stress the communal values of research, including openness in research methods and results. The open exchange of academic research is carried out by placing research results in the public domain, freely accessible to colleagues and others who can test the results and apply the research in their own work (Eisenberg 1987, pp. 181–184; Rai 1999, pp. 88–94). Although the AAUP was instrumental in establishing a strong foundation of academic freedom, it also made compromises that limit faculty autonomy. The peer review structure, while carving out an area of faculty self-governance, left the private corporate power of universities largely unchallenged (Hofstadter and Metzger 1955, p. 473; Metzger 1988, pp. 1276–1278; Schrecker 1983, pp. 25–27; Byrne 1989, pp. 278–279). Leaving university trustee and administration power largely intact has had two major negative effects on faculty self-governance. First, peer review structures have been criticized as “self-policing” rather than
5 Higher Education and Social Policy: The Case of the United States 119 self-governance, as the continued potential for trustee and administration interfer- ence leads to peer review within standards acceptable to the administration and trustees (Schrecker 1983, pp. 25–27). The subjectivity of professional standards leaves politically unpopular or controversial faculty vulnerable to judgments of “partisanship” and “incompetence,” similar to the vulnerability of faculty during the period of industrialization. The AAUP 1915 Declaration states that the profes- sion must be willing “to purge its ranks of the incompetent and the unworthy, [and] to prevent the freedom which it claims in the name of science from being used as a shelter for inefficiency, for superficiality, or for uncritical and intemperate parti- sanship,” to avoid such purges being performed by laypersons (Joughin 1967, pp. 155–172). The history of peer review systems in universities in the United States includes many instances of the realities of such vulnerability, including the dismissals of faculty during the McCarthy era, faculty targeted for their politics during the Civil Rights movement and the Vietnam War, tenure denials of faculty viewed as overly partisan in their teaching and research aimed at social reform, and more recently, university actions against faculty for their speech after the September 11, 2001 attacks (Schrecker 1983, pp. 31–32; Zinn 1997, pp. 35, 52–71; Hartman 1989, p. 287; Lifschultz 1989, p. 279; Raskin 1989, p. 341; Wallerstein and Starr 1971, pp. 462–478; Fain 2005; Doumani 2006). 5.3.2 Judicial Restrictions on Academic Freedom The State, through its judicial function, has provided some protection of faculty democratic rights. The courts have not, however, adequately developed the potential of a right of academic freedom. The Supreme Court has used constitutional concepts of academic freedom to protect faculty rights in only two cases. In Sweezy v. New Hampshire, the Court held that the State violated due process by holding Sweezy, a Marxist economist, in contempt for refusing to answer, during a State investigation of public employment of “subversive persons,” questions concerning his university lectures and political association (Sweezy v. New Hampshire 1957). Ten years later, the Court held that a New York state statute violated First Amendment freedom of speech and association by requiring public school employees to take a vague and overbroad loyalty oath and by barring public employment of members of “subver- sive organizations” (Keyishian v. Board of Regents 1967). Individual faculty claiming constitutional rights of academic freedom face significant obstacles. As a threshold issue, the First Amendment, like other pro- visions of the Bill of Rights and Fourteenth Amendment, is triggered only if there is state action (Metzger 1988, p. 1291). For example, a legislative committee engaged in state action by questioning Sweezy. Or a public university administration’s discharge of a faculty member for his political beliefs would be state action that could be challenged under the First Amendment. A private university administra- tor’s decision to discharge a faculty member, however, would not entail state
120 R.L. Lieberwitz action. The faculty member would not, therefore, have a constitutional claim against his private university employer. Even public university faculty face great difficulties in bringing constitutional claims against their state university employers. The courts have addressed public faculty academic freedom claims within the broader category of First Amendment public employment cases. In a series of non-university cases, the Supreme Court has consistently limited public employee speech protection by applying a balancing test that affords great deference to government’s managerial interest as an employer weighed against the public employee’s First Amendment interest as a citizen (Pickering v. Board of Education 1968; Connick v. Myers 1983; Waters v. Churchill 1994). Lower courts have applied this balancing test to faculty free speech cases in ways that either ignore or dilute the significance of constitutional academic freedom (Finkin 1988, p. 1326; Fugate 1998, p. 205; Hiers 1993, pp. 61, 90). Additionally, in university cases, courts generally defer to the univer- sity administration’s “institutional academic freedom,” together with its exercise of managerial prerogative over its employees (Finkin 1983; Metzger 1988, pp. 1310– 1319; Chang 2001, pp. 930–937). As a result, the courts usually strike the First Amendment balance in favor of the university. In 2006, the Supreme Court narrowed public workplace speech even more. The Court held that public employees have no constitutional protection under the First Amendment for speech delivered in the course of their official duties (Garcetti v. Ceballos 2006, pp. 1959–1960). The Court acknowledged that public university faculty may require broader First Amendment protection for their “expression related to academic scholarship or classroom instruction” (1962). The majority refused to explain further, however, as the Garcetti case did not arise in a university or other public school. 5.3.3 Attacks on Tenure and Faculty Governance Given the limited judicial protection of academic freedom, professional norms become even more important. Maintaining the strength of these norms, though, depends on continued faculty vigilance in asserting and exercising both collective and individual academic freedom. Collective academic freedom includes faculty governance over curriculum and faculty hiring and promotions decisions through peer review. These collective processes should protect individual faculty academic freedom from intrusion by university administrators or even by senior faculty colleagues. Faculty governance also encompasses collective bodies such as faculty senates or faculty unions, which create institutional routes for faculty participation in university decision-making that affects academic matters. Since the 1980s, however, several factors have undermined individual academic freedom and collective faculty governance. One phenomenon is the erosion of tenure-track faculty positions through the increase in nontenure-track faculty posi- tions, either as renewable contracts or as adjunct faculty hired to teach on a semester
5 Higher Education and Social Policy: The Case of the United States 121 by semester basis. The AAUP reports that “non-tenure-track positions of all types now account for 65 percent of all faculty appointments in American higher education,” with 35.5 % growth of full-time nontenure-track faculty between 1998 and 2001. This contrasts with hiring practices in 1969, when only 3.3 % of full-time faculty appointments were nontenure-track (AAUP 2005; Duncan 1999, pp. 521–28). The dual development of increased nontenure-track faculty and reduced tenure- track positions harms academic freedom by removing a central element protecting faculty autonomy. Critics of tenure assert that it is a costly, outmoded system of job security that eliminates work incentive and competition and fails to hold faculty to account for their time and effort (Goldberg 1997, p. R4; Walters 1997, p. 12; Merle 1997, p. A11). Substitution of nontenure-track arrangements, however, leaves faculty vulnerable to contract termination. During industrialization in the late 1800s and early 1900s, such employment conditions led faculty to form the AAUP and demand tenured positions to protect academic freedom. Under current conditions of global capitalism and privatization, faculty still need the tenure system to maintain their independence from the pressure to conform to equally strong corporate norms. Some universities have attempted to cut back directly on tenure rights, such as the University of Minnesota Board of Regents’ proposal, in 1995, to make it easier to lay off faculty for “not maintaining a ‘proper attitude of industry and coopera- tion’” (Goldberg 1997, p. R4; Sanchez 1996, p. A1). This confrontation ended in 1997 with a compromise between faculty and the trustees on reforms of the tenure system. The new tenure code did not include the layoff provision, but does include periodic post-tenure reviews leading to possible pay cuts for poor performance. In 1994, Bennington College, which did not have a traditional tenure system, abolished even its “presumptive tenure” system under which faculty had been reviewed every 5 years, substituting 1–5 year individual contracts (Celis 1994, p. A12). Bennington College followed this change with its dismissal of one-third of its faculty (Buck 2001, pp. 18, 20). Faculty governance is harmed by these hiring changes, since nontenure-track faculty positions will generally be excluded from collective decision-making pro- cesses. Other factors weakening faculty governance stem from a two-pronged attack against collective faculty strength. First is the Supreme Court’s 1980 decision putting an end to unionization efforts in most private universities. In Yeshiva University, the Court held that most faculty in so-called “mature” private universi- ties would be defined as managerial employees under the National Labor Relations Act, excluding them from statutory rights to unionize and collectively bargain (NLRB v. Yeshiva University 1980). The Court concluded that faculty autonomy over institutional decisions such as curriculum and student admissions defined faculty as part of management acting in the university employer’s interests (p. 688). Absent from the Court’s decision was any mention of academic freedom as the source of collective faculty autonomy, rather than as a university administra- tion’s delegation of managerial authority to faculty (Feldman 1995, pp. 541, 546, 558).
122 R.L. Lieberwitz Yeshiva’s impact leaves the public university as the focus of unionizing under state collective bargaining statutes. As with constitutional academic freedom, public and private university faculty have different protections with regard to statutory rights to engage in union activity. Public university faculty have the right to unionize under public sector collective bargaining statutes in more than half of the states (Hurd and Foerster 1997, p. 135). Even without unions in private universities, however, faculty governance still exists through university-wide faculty senates and collective decision-making at the departmental level. Without legal protection, however, such faculty governance systems are vulnerable to the power of university administrations and boards of trustees. When confronted with faculty senates that disagree with them, adminis- trators or trustees sometimes choose to ignore or even dissolve the faculty gover- nance body (Wasley 2007; Mangan 2007). 5.4 Public Funding as Social Policy 5.4.1 Public Funding, Academic Freedom, and the University’s Mission One of the most significant State functions in education entails public funding. Public universities have been created and financed by the State. Through direct funding, the government supports the state university’s public mission by using taxes to lower student tuition, pay faculty wages, fund academic research, and subsidize the physical maintenance of the university. Private universities benefit from State funding as well, through tax exemptions of universities as non-profit institutions, federal grants to support academic programs, and public agency funding of academic research. Since 1960, federal funding has comprised 60– 70 % of the financial support for academic research (Kenney 1986, pp. 35–36; Press and Washburn 2000; Mowery et al. 2004, p. 24). Governmental funding of universities enhances the university’s ability to fulfill its public mission. As public and non-profit institutions supported by the state, universities share characteristics with other governmental institutions that exist for the public welfare. Just as government furthers the public interest through funding primary and secondary schools, it funds colleges and universities to further the public interest in education. Federal funding to state and private universities that lower or subsidize tuition broadens public access to pursue university degrees. Academic research funding comes from governmental agencies like the National Institutes of Health (NIH), which exist for the public welfare. By engaging in publicly funded research, universities carry out their public mission. Moreover, public funding promotes academic freedom by ensuring university and faculty independence from the interests of industry or other private financial contributors.
5 Higher Education and Social Policy: The Case of the United States 123 Equating public funding with academic freedom is, of course, only a partially achieved ideal. Even public funding has an influence over academic researchers’ choices. Funding agencies shape academic research through their initial “requests for proposals” and in their decisions of which faculty projects to fund (Bok 2003, pp. 61–62). Of even greater concern are relationships between universities and military or intelligence agencies. Federal funding from these sources may include classified research for agencies such as the CIA. Further, academic research for military or intelligence agencies or private military industry may integrate faculty as participants in research of seriously flawed ethics and morality (Giroux 2007, pp. 13–24, 52–72). Despite these problems, public funding of higher education is most consistent with the university’s public mission. Although the system of government funding may be flawed, these are imperfections within a democratic structure. Reform of the public funding process can aim to increase adherence to academic freedom as a democratic principle that promotes the public interest. Such reforms are difficult to accomplish, since defining the public interest is contentious. Legislatures are also dominated by private economic interests, making the democratic ideal even harder to achieve. Still, the democratic process can be used to improve the public funding system, including reforms to increase faculty and university independence. Uni- versity policies and collective faculty governance can resist governmental efforts to use public funding to undermine faculty autonomy and institutional independence. This resistance can include university and faculty refusals to engage in military and intelligence research (Giroux 2007, pp. 72–81). Public funding of universities is also consistent with professional norms of academic freedom. Both are based on foundational principles of serving the public interest. Universities are supported directly by public funds and indirectly by tax exemptions given to higher education and other public interest institutions (Lieberwitz 2005, pp. 131–132). Academic freedom norms create professional standards to maintain the integrity and legitimacy of teaching and research as part of the university’s public mission. These standards include academic researchers’ traditional practice of placing their research findings into the public domain, freely available for others to test and to use (Eisenberg 1996, p. 1663; Rai 1999–2000, p. 92–93; Krimsky 1999, p. 39). 5.4.2 Privatization of Publicly Funded Academic Research: Restricting the University’s Public Mission Privatization trends in the United States since the 1980s have affected university research funding and functions. The State has used its public funding power to encourage the university to develop its private institutional characteristics. This change in state policy creates a tension between the university’s private market interests and its public mission.
124 R.L. Lieberwitz Prior to 1980, publicly funded research results generally became part of the public domain (Eisenberg 1996, pp. 1675–1676). The government held the title to inventions developed with federal funds. The government agency could choose to dedicate the invention to the public domain by publishing the results without obtaining a patent or by providing nonexclusive licenses to private parties seeking to use a government-owned patent (Eisenberg 1996, pp. 1675–1676; Rai 1999, n. 113). The federal Bayh-Dole Act of 1980, however, authorized and encouraged federal fund recipients to patent the results of their federally funded research. The patent would then belong to the private federal fund recipient—including univer- sities. The patent owner can license the patent, including exclusive licenses to for-profit corporations, such as DuPont or Monsanto. Through its public funding processes, the federal government thus encouraged universities to engage in increased privatization and commercialization of academic research. In re-defining the public mission of the university as synonymous with the private interest of commercializing research, the Bayh Dole Act states a legislative policy favoring the university’s role as market actor. This legislative change has been hailed by supporters as promoting the public interest by making academic research more readily available to industry through licensing of university patents (Bok 2003, p. 141; Mowery et al. 2004, pp. 90–91; Thursby and Thursby 2003, p. 1052). Congress reasoned that if a commercial business had exclusive rights to a federally funded invention, as either patent-owner or as licensee of a university- owned patent, the business would be more willing to invest the large amounts of research and development funds needed to develop a marketable product (Eisenberg 1996, pp. 1698–1699). Supporters point to the growth in university- owned patents and licenses as evidence of the success of Bayh-Dole. In 1979, before the Bayh-Dole Act, U.S. universities obtained 264 patents, compared with 1997, when American universities obtained ten times that number, 2,436 patents (Rai and Eisenberg 2003, p. 53). From 1991 to 2000, the patents granted to U.S. universities increased by 131 % (Blumenthal 2003, p. 2454), and licenses granted by the universities increased by 158 % (2455). Between 1988 and 2003, U.S. patents awarded to academic institutions quadrupled, from about 800 to more than 3,200 per year (Johnston 2007, p. 162). From a different perspective, though, the Bayh-Dole Act encourages the uni- versity to make a fundamental shift in from its institutional public mission to private market actor. Rather than emphasizing a goal of enhancing the public domain of academic discoveries, the university encourages faculty to consider the patentabil- ity of their academic research (Lieberwitz 2007a, p. 64; Lieberwitz 2004, p. 771). Further, the university’s financial concern with profitable patents compromises its independence and academic freedom. Now the university’s market interests are intertwined with the private interests of third party corporations licensed to use university-owned patents. In addition to charging licensing fees, the university may negotiate for royalties from sales of the licensee’s products developed with use of the university’s patent. As a result, the university and licensee’s interests in profits are aligned (Lieberwitz 2007a, pp. 61–62, 64–65; Lieberwitz 2005, pp. 132–133). Universities and their exclusive licensees have joined as plaintiffs in patent
5 Higher Education and Social Policy: The Case of the United States 125 infringement suits, claiming the right to royalties on sales of products developed with the use of the patented research tool (Rai and Eisenberg 2003, p. 57). The public pays for increased commercialization of university research. For-profit corporations that contract for exclusive licenses to university patents will be able to charge monopoly prices for products developed with its exclusive access to patented information (Cripps, 4–12; Lieberwitz 2005, pp. 127–128, 133– 134). For example, the Tay-Sachs disease screening test, patented by the federal government, costs $100, while the privately patented screening test for two breast cancer genes costs $2,400 (Krimsky 1999, p. 37). Without the licensing fees, the cost for the genetic test for breast cancer is estimated at about $50 (Leroux 2001, p. C12). The discoveries of the breast cancer genes were based, in part, on federally funded academic research (Williams-Jones 2002, pp. 132–133). The proliferation in academic research patents also restricts knowledge available to other researchers. One area in which this problem is particularly acute is in “upstream” scientific discoveries that create important basic research tools. Upstream research patents increase the costs of research, as licenses are required to use even basic research knowledge (Heller and Eisenberg 1998, pp. 699–700; Rai and Eisenberg 2003, pp. 55–56). As Professors Michael Heller and Rebecca Eisenberg have observed, the “privatization of upstream biomedical research” has led to “the tragedy of the anticommons,” which may discourage scientists from engaging in downstream research requiring multiple licenses on patented research tools (Heller and Eisenberg 1998, p. 698). 5.5 Private Funding and Private Influence Privatization and commercialization of academic research has also increased through the growth of university-industry relations linked to corporate funding for academic research. Overall, corporate funding of academic research has grown, from 2.3 % in early 1970s to almost 8 % by 2000 (Bok 2003, p. 12). At the individual faculty level, many faculty have relationships with industry, either through university research contracts or faculty consulting. In 1994, 90 % of life science companies had some relationship with academia, either through faculty consulting or through corporate support of faculty research (Blumenthal et al. 1996, pp. 371–372). Some university-industry relationships have expanded through “corporate stra- tegic alliances,” where a corporation—such as a large pharmaceutical company— provides tens of millions of dollars to fund entire university departments or research programs (Press and Washburn 2000, pp. 41–42; Kenney 1986, pp. 55–72). In exchange, the university gives the corporation the right to exclusive licenses to academic research of the department. In other words, the corporation gets exclusive monopoly control over academic research results. The corporation also gets other benefits such as an initial confidential review of the research and preferred access to faculty, students, and university facilities.
126 R.L. Lieberwitz Like the Bayh-Dole Act, this increase in university-industry relationships creates similar costs to the public. Although public funding of research is not at issue here, the public mission of the university is still at stake, with similar costs to the public interest. Academic freedom and the university’s public mission are negatively affected by the restriction of the public domain of research. University-industry research contracts will emphasize academic research that enhances the corpora- tion’s financial interests, creating a conflict of interest between the university’s public mission and commercial interests of the university and the corporate funder. This undermines the university’s independence, as the university takes on a role of business partner with the corporation, which may be given an active role in selecting academic research proposals to be funded, as well as access to faculty, students, and facilities (Slaughter and Leslie 1997; Washburn 2005, pp. 1–24; Etzkowitz et al. 1998; Lieberwitz 2007a, pp. 62–64). This relationship goes well beyond unrestricted corporate donations to the university, moving “[i]n a very real sense. . .from corporate contribution to corporate investment in academia” (Caldart 1983, p. 25). The negative effects of these conflicts of interests are not simply idle specula- tion, as demonstrated by evidence of a significant impact on the university science community and science research. Academic scientists report increased secrecy among faculty involved in research that may lead to patents (Blumenthal et al. 1986, pp. 1361–1366; Krimsky 1999, pp. 29–31). Universities regularly agree to delays of publication for at least 3–6 months to allow corporate funders to review research results and to allow time to file patents (Krimsky 1999, p. 30; Mowery et al. 2004, pp. 185–186). Incidents have been reported of corporate pressure placed on faculty researchers to change research reports to eliminate negative results or not to publish them (Press and Washburn 2000). Studies show that corporately financed researchers are significantly more likely than researchers not funded by the corporation to reach favorable results concerning a corporation’s product (Cho and Bero 1996, p. 485; Clayton 2001, p. 11; Krimsky 2003, pp. 142–149). Private funding affects teaching as well as research. Recent conflicts have occurred between universities and their benefactors that seek influence over edu- cational programs supported by their private funds. In 1995, Yale University returned $20 million to wealthy donor Lee Bass, who had earmarked his donation to fund an expanded Western civilization curriculum. Yale decided to return the funds after Bass sought veto power over appointments of faculty in “Bass pro- fessorships” to teach these courses (Arenson 1997). Recently, the heirs of a wealthy donor from “a supermarket fortune” sued Princeton University to recoup the original $35 million donated in 1961 plus the earnings on those funds, now totaling $880 million. The heirs allege that Princeton did not use the donation as intended by the donor to prepare students for federal government jobs, particularly in foreign service (Arenson 2007).
5 Higher Education and Social Policy: The Case of the United States 127 5.6 Prospects for the Future Where has the steady drumbeat of privatization as social policy left the U.S. university? Although universities maintain formal policies stating their public missions, they have become increasingly close to industry. University-industry relations have grown through licensing and royalty negotiations with corporations seeking to use university-owned patents. Universities have acquiesced to significant corporate intervention into academic funding decisions as a quid pro quo for large financial contributions. Faculty-industry relations have also increased through corporate research funding and individual consulting contracts. Privatization and “corporatization” of the university creates a serious tension between the university’s public mission and its focus on the private market interests of the university and its commercial industry partners. These changes in the university, of course, have not occurred in a social and political vacuum. Since the 1980s, public functions have been privatized at a growing rate, from public primary and secondary schools, to prison administration, to rebuilding New Orleans after Hurricane Katrina, to firefighting services, to U.S. military functions. With these shifts, the quality of public services has been compromised in multiple ways. Costs have skyrocketed, efficiency has suffered, and transparency has disappeared. In higher education, privatization and commercialization of the university has resulted in public costs: the public domain of research restricted through university-owned patents and licenses; academic research made more difficult due to limits on access to basic research tools; faculty culture altered as a result of increased secrecy; corporately funded academic research biased toward the corporation; increased corporate monopoly pricing facilitated by exclusive licens- ing of university patents; cutbacks on tenure-track faculty lines; increased contin- gent faculty positions; and weakening of faculty governance. The scope of these changes corresponds to shifts in university and faculty identity (Lieberwitz 2007b). Although the university has always had a dual pub- lic/private character in the U.S., its public mission traditionally has been central to its identity and its legitimacy. The exaggerated focus on privatization and commer- cialization since the 1980s, however, has created a great imbalance toward the university as private market actor. Further, as the faculty increase their relationships with industry, they lose their identity as independent researchers and teachers. Faculty also weaken the viability of their claim to academic freedom as necessary to carry out the university’s public mission. Although it will be hard to turn back the clock on privatization, universities can make meaningful reforms to reinvigorate policies and practices that have been traditionally part of its public mission. The faculty must take leadership in such reforms, just as they did in their early twentieth century demands for academic freedom. Central to returning the university to the public interest will be a renewed emphasis on building tenure-track faculty. This will entail changes in faculty hiring to reduce the percentage of contingent faculty positions and strengthen the system of tenure that is intended to protect faculty academic freedom.
128 R.L. Lieberwitz A return to the university’s public mission should limit university patenting and licensing practices. Expanding the traditional practice of placing academic research into the public domain would enable all other researchers and members of the public to have equal access to it. Such a reform is also essential to re-establish an arms length relationship with industry and corporate funders. Faculty and univer- sities can act to expand the public domain without any action from Congress amending or repealing the Bayh-Dole Act. Universities could, for example, either eliminate patenting or could patent academic research for the express purpose of making the results freely available in the public domain. Other avenues available for reform are university and faculty support of open source movements dedicated to expanding public access to research results (Public Knowledge; Kapczynski et al. 2005). Recalibrating the university’s policies and practices to emphasize the public interest will strengthen the university’s credibility to press for social policy consis- tent with its educational mission. For example, universities would be in a stronger position to argue for judicial or legislative reform to establish a broader experi- mental use exemption to the patent laws in the context of academic research. The common law experimental use exemption is very narrow, providing little protection for university researchers from patent infringement claims (Burchfiel 1995, pp. 351–353). Universities enforcing their own patents and licenses activities, however, seem hypocritical when they simultaneously seek patent law exemptions for academic research. As the Federal Circuit Court of Appeals held in a case involving Duke University, universities using patented inventions to carry out their “business” of scholarly research are not acting within the narrow experimental use exemption (Madey v. Duke University 2002, p. 1362). The court noted that despite Duke’s claim to have used patented research tools in furtherance of a non-commercial research program, Duke also engaged in “an aggressive patent licensing program from which it derives a not insubstantial revenue stream” (p. 1351, n. 7). A renewed emphasis on the public domain, however, would increase the university’s legitimacy in seeking exemptions from patent and copyright laws for the purpose of advancing its research and teaching missions. Similarly, a central focus on the public interest would enable universities to act collectively to lobby for increases in public funding to support student tuition, academic research, and other educational needs. Rejecting reliance on their revenue generating power as market actors can re-direct the universities’ concerted energies to promoting education as a public good that should be supported through larger public appropriations. This focus would enhance the value of an education for all students, not just those who can afford to pay expensive tuition. It would also reiterate the value of academic research and teaching as providing a service to the entire public, not just to corporate funders or licensees. This recalibration to emphasize the university’s public mission will also return the faculty focus to its traditional identity based on academic freedom and profes- sional autonomy. Like the university’s institutional integrity, faculty integrity will be enhanced by returning to the roots of the AAUP’s professional academic
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Part III International Labor Standards; Raising the Floor of Labor Rights; Labor Unionism and Industrial Relations
Chapter 6 Flexicurity and Turkey’s New Labor Act: Problems and Prospects Toker Dereli Abstract By combining flexibility and employment protection, the 2003 Labor Act of Turkey has become a key element in promoting fundamental employment rights in Turkey, safeguarding workers’ employment conditions under flexible arrangements, and improving equality at the workplace. This paper aims to explain the unique process used in drafting this legislation as well as the Act’s main dimensions and the problems encountered in practice. The chapter is composed of mainly two parts. Following some background information, the first part deals with the process of drafting the proposal for a new Labor Act. The second part explains the main dimensions of the draft bill and the final text enacted by the Parliament. The paper concludes with a final section on the general evaluation and future prospects for flexicurity in Turkey. 6.1 Introduction Before the passage of Labor Act no. 4857 in 2003, protective labor legislation dealing with the individual employment relationship was governed in Turkey first by the Labor Act of 1936, no. 3008, and following it, by the Labor Act of 1971, no. 1475, both patterned after a Fordist model of the 1930s’ working environment and characterized essentially by the prevalence of open-ended employment con- tracts with only a minimum degree of job security (i.e. terms of notice to be respected and the payment of severance pay in certain dismissals) as well as rigid In this chapter, for reasons of space economy, only the pronoun “he”, without prejeduce to the pronoun “she”, has been used to denote the third person pronoun which should be construed to mean a person of unspecified sex. For labor law concepts, terminology of the International Labor Organisation has been adopted. T. Dereli (*) Department of Management, Is¸ık University, Istanbul, Turkey e-mail: [email protected] T. Dereli et al. (eds.), Labor and Employment Relations in a Globalized World, 135 Contributions to Economics, DOI 10.1007/978-3-319-04349-4_6, © Springer International Publishing Switzerland 2014
136 T. Dereli rules governing organization of work and working time. With a few exceptions, Act no. 1475, which remained in force until the year 2003, covered, like the new Labor Act, all blue-collar and white-collar workers in private and public sectors. On the other hand the status and working conditions of public servants who enjoy stronger tenure and job protection rights are governed by special legislation of public law (Dereli 2012). Following the adoption of multi-party democracy by Turkey, labor unions came into existence in 1947, but genuine collective bargaining with the right to strike could not materialize until the Constitution of 1961. With the entrenchment of free collective bargaining during the 1960s and afterwards, unions paved the way for promoting their members’ working conditions above and beyond the minimum levels set by the protective labor legislation, but their efforts to enhance employ- ment security for their members, let alone for workers in general, were doomed to failure. However providing workers with job security had become a subject of heated debates in labor and academic circles since the mid-1980s. With the ratification in 1994 of the ILO Convention 158 on the Termination of Employment, enactment of legislation on this matter could no longer be delayed despite strong reactions from employers. Employers were opposed to the rigidities of the Labor Act no. 1475 in existence then, and similarly unions seemed reluctant to accept any flexible working arrangements which were being debated at certain platforms since the 1990s. Surprisingly “flexibility” was an unheard term in the Turkish setting until the early 1970s, but early 2000s witnessed increasing demands by employers for the relaxation of existing rigidities on the kinds of employment contracts, organization of work and working time arrangements. Thus, achieving the right regulatory balance between labor market flexibility and employment security had become the subject of debate between successive Turkish governments, employers and labor unions for a number of years. The introduction of the new Labor Act in 2003 was a step towards addressing these issues. The main motives for the reforms were: 1. A perceived need on the part of employers for more flexible regulation that would better respond to the changing needs of Turkish business, influenced by globalization and the opening up of the economy, 2. The need to align Turkish labor laws with ILO conventions and European Union acquis following Turkey’s international commitments, 3. The desire of labor unions to bring stronger employment protection for their members and workers in general, and 4. The attempt to stimulate job creation, by eliminating the outdated rigidities of the previous legislation whist promoting job security for workers.
6 Flexicurity and Turkey’s New Labor Act: Problems and Prospects 137 6.2 Process It was proposed by Refik Baydur, the president of Employers’ Confederation (TI˙SK) and Yas¸ar Okuyan, the then Minister of Labor and Social Security of the coalition government, that the tripartite constituents appoint a nine-member com- mittee of academics to draft the legislation on which the constituents would be equally represented that is, three members representing employers, the TI˙SK, three members labor (one to be chosen by DISK, the left-wing labor confederation, one by Tu¨rk-I˙s¸, the center confederation, and one by HAK-I˙S¸ , the right wing confed- eration), and three members representing the government to be chosen by the Ministry of Labor and Social Security. Following the creation of this committee (which has been referred to as the “academic committee” since then), the social partners made a commitment without reservation that they would accept those changes on which the drafting committee could agree unanimously. In a meeting held in Ankara on 7 February 2001 with the participation of the presidents of labor and employer confederations as well as the Minister of Labor of the coalition government in power, agreement was reached on the project, together with the proposed names of the committee members. For labor unions, the promise to inculcate a job security dimension into the system was the most alluring motive, so they readily signed the protocol. For employers the flexibilization of the labor market as well as the expected attenuation of severance pay were the essential motives. Members were selected on the basis of their past work with the social partners as well as with the government. Despite the members’ relative proximity to one of these parties, each was known with his objective approach to labor problems and knowledge of both the Turkish and ILO-EU labor law. The writer of this paper worked in this process as one of the three government representatives. The com- mittee appointed one of the senior government representatives, Professor Metin Kutal, as its chairman. During the successive stages of the academic committee’s work, each member remained in contact with the organization which he represented, with a view to inform the stakeholders concerned on the developments taking place in the com- mittee’s work. After meetings which lasted about 3 months, the committee com- pleted its draft on employment security and a new version of severance pay, and submitted it to the Minister of Labor and Social Security on 4 May 2001. The part of this draft on job security was passed through the Parliament as Act no. 4773 in 2001. This represented the first phase of the committee’s work, pending the completion of the second phase which would include the incorporation of flexibility into the body of the new Labor Act. The committee spent another year to complete its work on flexibility measures and submitted its draft to the new Minister, Murat Bas¸esgiog˘lu, on 26 June 2002. It should be noted that reaching unanimous agreement on many issues required making various compromises on important issues which represented conflicts of interest among the social partners. For example, the numerical threshold concerning
138 T. Dereli the scope of establishments that would be covered by job security provisions was the subject of heated debates among the members of the committee. While some members insisted on keeping the threshold low (with a view to expand the scope of workers to be covered) on the presumption that it was very likely to be increased anyhow during the legislative process, the employers’ representatives favored a higher figure for the sake of keeping small enterprises out of the scope of job security. Another important issue on which disagreement arose in the last minute was related to limiting employment termination cases which would entitle the worker to payment of severance pay so as to make it payable only upon the worker’s retirement, as well as the establishment of a “severance pay fund” versus an alternative text which foresaw a considerable reduction in the existing amount of severance pay. The motive behind employers’ insistence was their well-known argument that, in the presence of the new job security provisions and the unem- ployment insurance system in force since the year 1999, the exaggeratedly high levels of severance pay should now be curbed. As a matter of fact the fate of severance pay system was the only issue on which the committee failed to reach unanimous agreement. This was also the main reason for the delay caused in the submission of the draft text to the Minister. At the beginning of the process, members made a division of labor among themselves whereby each was to be assigned a subject on which he would write the text of the pertinent articles. While each member made important contributions to the creation of the draft proposal for every chapter of the text, Professor Mu¨nir Ekonomi who was a TI˙SK representative with his in-depth knowledge of European labor law was instrumental in designing a significant part of the text. Except for two members who quit the committee for personal reasons, the composition of the “academic committee” did not change throughout the whole process. Thus, with the hope of making amendments to the severance pay system in the future, this draft, debated extensively before and during the Parliamentary process, was enacted as the new Labor Act of Turkey, no. 4857, on 10 June 2003. The previous legislation on job security regulated by Act no. 4773 of 2001 was incorporated into Act no. 4857 with a few revisions (Dereli 2012; Uc¸um and C¸ akmakc¸ı 2003; Baydur 2006). Article 14 of the previous Labor Act no. 1475 would remain in force until further revisions could be made to the severance pay issue in the future within the context of the proposed “severance pay fund.” Nevertheless, despite the initial commitment of the social partners to the revision of labor legislation by the tripartite academic committee, the same consensus could not be maintained on certain dimensions during the legislative process in the Parliament. While employers kept resenting the introduction of a full-fledged job security system unless drastic changes were made in the existing severance pay levels, labor was opposed to such issues as the establishment of temporary work agencies, transfer of the employment contract and new flexibilization measures in working time and working arrangements. Some articles of the previous Labor Act remained unchanged while employers and labor confederations agreed between themselves to delete certain proposals embodied in the original draft bill. And eventually the legislature made a few changes in the draft during its passage
6 Flexicurity and Turkey’s New Labor Act: Problems and Prospects 139 through the Parliament. These interventions notwithstanding, the content of the original draft was accepted to a considerable extent. But the controversy on temporary work agencies as well as the revision of the severance pay system is still on the agenda as evidenced by various attempts of the government in the recent past to pass legislation to regulate these issues. With the exception of these and a few other minor points in the background, most of what the academic committee was engaged to accomplish in the name of flexicurity has become a reality in the format of a modern labor law for Turkey. Certainly the outcome is not flawless, as will be explained in the following paragraphs. The experience of the last few years shows that, although it has increased the case load of labor courts, the part of the 2003 Labor Act on job security is working with reasonable efficiency. But it is not possible to make a similar assessment with regard to the new flexible working arrangements. Since in the Act most flexibility measures were predicated on the condition of the worker’s giving his consent, labor unions, perhaps for fear of the unknown, were reluctant to give their approval in collective bargaining negotiations. However in workplaces where there was no certified union (meaning the bulk of the Turkish economy), employers were able to get the worker’s consent by way of new employment contracts or by including a clause for flexible arrangements in the establishment’s personnel regulations. In the opinion of most employer circles as well as national and international assessment centers, the new Labor Act is still saddled with rigidities.1 Notwithstanding the various problem points which will be summarized below, in Turkey an agreement signed by the social partners and the government eventually led to the adoption of a contemporary Labor Act. As a successful form of social dialogue at this level, the work of the “academic committee” was the first and so far the only venture of its kind in Turkey. It is believed that in Turkey a similar method might yield positive results on the proposed legislative reform on freedom of association (Dereli 2011). Yet the awareness rising phase in the enactment of Act no. 4857 was not sufficient, as implied by the initial reactions of labor unions to this effort. Its implementation and further improvement have become an exercise of co-responsibility and social dialogue between the social partners. 1 “What we had expected from you was the flexibilization of our labor legislation; on the contrary, you have overregulated it.” TI˙SK representative Erdog˘an Karakoyunlu’s statement to the “aca- demic committee” in a meeting of the committee with the social partners, held at Abant, Bolu in December 2002. See also ILO and OECD, “Short-term employment and labor market outlook and key challenges in G20 countries. A statistical update for the G20 Meeting of Labor and Employ- ment Ministers”, Paris, 26–27 September 2011. For the evaluations of the OECD claiming that Turkish labor legislation is still rigid, see the various issues of Economic Survey published by that organization.
140 T. Dereli 6.3 Job Security Articles 17–25 of the Labor Act no. 4857 deal with the termination of employment contracts in general, while 18–21 regulate specifically provisions on job security. The said articles were designed by the academic committee along the lines foreseen in ILO Convention 158, but in quite flexible terms, taking account of the special circumstances of the Turkish labor market While the criterion for coverage would cover establishments with ten or more workers in the committee’s original draft, the threshold was later increased by the government, on grounds of providing some flexibility for small enterprises, to “establishments employing 30 or more workers, with a minimum seniority of six months”. Arguing that the “30 workers” criterion was apt to deny job security to a considerable number workers, labor unions reacted to the said limitation but with no success Workers excluded from the coverage of job security protection continue benefitting only from the relevant articles on notice terms and severance pay if they are eligible, and in the event of abusive dismissals, compensation amounting to three times the wages for the term of notice. For workers under coverage, the employer must depend on a “valid reason” in order to terminate the employment contract; “valid reason” must be connected with the capacity or conduct of the employee or based on the operational requirements of the enterprise, establishment or service. Union membership and participation in union activities are cited among the cases which shall in no case constitute a valid reason for termination. The worker shall not be terminated before he is allowed to defend himself, except in cases of summary dismissal (for serious misconduct or malicious or immoral behavior) according to Art. 25/II, based on the presumption that in such cases the employer has often to take prompt action and the worker may have recourse to the labor court anyhow in order to seek redress for unjustified termination. In practice, however, most employers take the worker’s defense in discipline-related dismissals. But the denial of taking the written defense of the worker in just-cause dismissals, apparently a paradox in comparison to terminations based on a valid reason, was later criticized in practice and teaching (Su¨zek 2012, pp. 553–555). The worker who claims that no valid reason was given for his dismissal may apply to the labor court or if there is an arbitration agreement, to the private arbitrator, within 1 month. The burden of proof that the termination was based on a valid reason rests on the employer. But if the worker claims that termination was based on a reason different from the one stated by the employer (e.g. union membership), then the burden of proof shall rest on the worker. The court or the arbitrator shall conclude the case within 2 months. If the decision is contested, the Court of Appeals shall render its definitive verdict within 1 month. Where the court or arbitrator concludes that the termination was unjustified because no valid reason was given or the alleged reason was invalid, the employer must reinstate the worker within 1 month. If upon the application of the worker within 10 days of the court’s or arbitrator’s decision the employer does not reinstate him, compensation to be not less than the worker’s 4 months’ and not more than 8 months’ wages shall be paid to
6 Flexicurity and Turkey’s New Labor Act: Problems and Prospects 141 him by the employer. Against acts of anti-union discrimination, a stronger sanction in the form of compensation to be not less than the total annual wages of the worker was foreseen for the dismissal of union members’ and shop-stewards’ union related activities. In its verdict ruling the dismissal invalid, the court shall also designate the amount of compensation to be paid in case the worker is not reinstated (Art. 21/I, II). In doing so the judge takes the worker’s past work history, seniority and the nature of the alleged valid reason. As these provisions imply, reinstatement was not formulated as an absolutely mandatory requirement in the 2003 Labor Act, which is also revealed as a possible option in ILO Convention158. For reinstatement in work, the employee must make an application to the employer within ten working days of the date on which the final court or arbitration decision is communicated to him. If the worker does not apply within the said period, termination shall be deemed valid, in which case the employer will be held liable only for the legal consequences of that termination (Art. 21/IV). The employee is also protected during the court trial period. He shall be paid up to 4 months’ total of his wages and other entitlements for the time he is not reinstated. If advance notice pay or severance pay was already paid to the reinstated employee, these amounts shall be deducted from the above-stated compensations. If, however, in the case of non-reinstatement these payments had not been made to the worker when he was terminated, they should be paid to the employee (ArtArt. 21/III). Provisions in Art. 21/I, II, III are absolutely mandatory, meaning that they may not be altered by any agreement whatsoever. However, the scope of job security (i.e. the 30-workers threshold) is held to be relatively binding, construed as mean- ing that a lower threshold may be agreed to by the parties to the collective agreement. Paradoxically, however, although strengthening job security was one of its avowed goals, the 2003 Labor Act weakened the employment security of the union shop- steward who falls within the scope Articles 18–21. Previously, the union shop steward was the only category enjoying full employment protection, culminating almost always in absolute reinstatement. However, one unintended consequence of the complicated procedures set out in the 2003 Labor Act was to attenuate the protection of the shop-steward, relegating it only to the payment of compensation to be not less than his annual wages, the same remedy as foreseen in the case of the worker’s dismissal due to his union membership or participation in union activities, Presently, this paradox has been eliminated by Act no. 6356 of November 2012 on Unions and Collective Agreements. Though not widely used, arbitration of grievances and collective rights disputes was a known practice in Turkey based on the pertinent provisions of the Turkish law on legal procedures. In an attempt to alleviate the work load of labor courts, the draft of the academic committee and then Act no. 4857 brought as new avenue recourse to collective agreement-based arbitration clauses for job security disputes as well. But the Constitutional Court, relying on the principle that the right to court trial must never be denied to the individual, overruled the validity of collectively bargained arbitration in the settlement of job security disputes (Official Gazette 24 November 2007, no. 26710). But, for the system’s speedy adjudication and
142 T. Dereli viability in settling security disputes, the arbitration clause voluntarily included in the collective bargaining agreement by the parties should, due to the supremacy of the collective agreement over employment contracts, be binding on both the worker and employer in governing the execution and termination of the employment contract. One could argue that the Constitutional Court’s decision was misplaced for a number of other reasons as well (Dereli 2012, pp. 160–161). However the decision for nullity does not affect the employer’s and worker’s jointly agreeing to arbitration. In other words the Court upheld only the unconstitutionality of collec- tive agreement-based arbitration in job security disputes. But with the restriction of the mandate of arbitration by the Constitutional Court’s ruling, the case load of labor judges has increased at an ever-increasing rate since the year 2003. In an effort to justify their valid reasons for terminations, a notable tendency of employers has been the importance they attach to making elaborate performance appraisals for their workers, a process which was often neglected before court litigations for job security began increasing at staggering rates. Art. 22 of the 2003 Act deals with the unilateral changes to be made by the employer in working conditions or the location of the workplace set out in the employment contract, rules of work or personnel regulations. “Any change by the employer in working conditions may be made only after a written notice is served by him to the worker concerned. Changes that are not made in conformity with this procedure and/or not accepted by the worker in written form within six working days shall not bind the employee. If the worker does not accept the offer for change within this period, the employer may still terminate the contract by respecting the terms of notice, provided that he indicates in written form that the proposed change was based on a valid reason.” In this case the worker may file a job security suit according to the relevant provisions of the Act. By mutual agreement, however, the parties may always change working conditions. Under the previous system the worker could terminate the contract for just cause if the employer made essential alterations in working conditions which he did not accept. But the outcome for the worker was to lose his job. Now Art. 22 aims to regulate change in working conditions by providing some continuity in the employ- ment relationship. Controversy arose, however, on the application of Art. 22 as to what action should be taken if in the employment contract, the collective agreement or personnel regulations the employer had reserved his right to make essential alterations in the workplace or working conditions. The High Court of Appeals ruled that the dissenting employee should still have access to Art. 22 and request the termination of his employment contract by the employer to be held invalid (Court of Appeals, 9th Division, 26 January 2004, 23105/1204; General Council Decision, 11 November 2006, 9-613/644; 9th div., 28 January 2010, 14809/1480). When the employer contemplates collective layoffs for reasons of economic, technological, structural or other reasons of a similar nature, he must provide the union shop stewards, the regional directorate of labor and the Employment Orga- nization (I˙S¸ KUR) with written information to that effect at least 30 days prior to the intended layoff. Art. 29 of the Labor Act citing the numerical and administrative requirements is consistent with the principles set out in ILO C. 158 and the relevant
6 Flexicurity and Turkey’s New Labor Act: Problems and Prospects 143 EU Directive 98/9/EC for collective dismissals. Consultations that must be made within the 30-day notification period shall deal with measures to be taken to avert or reduce the layoffs or to mitigate or minimize their adverse effects on the workers. The draft of the academic committee had foreseen the election of workers’ repre- sentatives for the said consultations in establishments where shop-stewards appointed by a certified union did not exist, which in fact applies to the greater bulk of the Turkish economy. This was also conceived of as a step paving the way for the establishment of an information–consultation mechanism, as envisaged in the relevant EU directives. But due to strong reactions by labor unions that saw this proposal as a threat to weaken their presence and organizing drives in workplaces, and because the employers also readily agreed with them, election of workers’ representatives in non-unionized plants was cast off altogether. Under the present system, therefore, due to this void, how the process of consultations will work in non-union plants is unclear. In addition to its regulations on job security, Act no. 4857 also brought new clauses in the following dimensions: 1. More detailed provisions on the prevention of discrimination. Article 5 requires equal treatment of workers regardless of their contractual arrangements as well as in terms of gender, race, religion, language, etc. Sanctions have been foreseen for violators who shall be subject to compensation penalties or fines. 2. With a view to prevent abusive practices by employers, Article 2 further reinforced the restrictions placed on the use of subcontract labor which had long been a vexatious issue besetting labor unions and workers. It established new rules and strict criteria for the establishment of the “employer–subcontrac- tor relationship” whereby the employer and the sub-contractor are to be held jointly liable for the payment of claims by the subcontractor’s workers stemming from labor legislation, employment contracts or the collective agreement. 3. Where there is no written employment contract, the employer is required to provide the worker with a written document that sets out the general and special working conditions as foreseen under EU law. 4. The new Act also brought increases in favor of the worker on annual leave with pay and maternity leave. 5. The worker whose wage has not been paid within 20 days of the date on which it was due, except for force majeure, may refrain from working. Even where this conduct takes on the character of a concerted action, it shall not be treated as an unlawful strike. Workers shall not be dismissed; no replacements shall be hired, nor may the functions of such workers be performed by others (Art. 34). 6. Further, the Act’s chapter on occupational safety and health has been overhauled considerably. It is particularly important as it paved the way for detailed regulations on the employer’s duty to protect workers, to employ workplace physicians and safety engineers, to provide safety training, and to establish occupational safety and health boards and related services. 7. And last but not the least, Act no. 4857 established the “tripartite consultation board” in Art. 114 as a new mechanism for social dialogue. In the past few years
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