As a union worker, you probably know that your union or "labor organization" bargained with your employer on all sorts of things. How much you're paid, your work hours, and your insurance coverage are good examples. The agreement between your union and employer, the collective bargaining agreement (CBA), covers how your employer can make layoffs or a reduction in force (RIF).
If you're a union worker and there's talk of layoffs at work, which unfortunately happens quite often, you need to look at your CBA and talk to your union representative about your rights as an employee.
Generally, no two CBAs are alike, that is, each employer and union has a different CBA. So, for example, your CBA is probably much different than the CBA that covers your friend who works for a different company. However, any CBA will include terms related to layoffs or RIFs. Typically, layoffs will be based on:
- Seniority, or how long a worker has been with the employer. The idea here is to make sure that workers with a long history of service get greater job security
- Seniority plus another qualification. For example, the CBA may provide that when you and a co-worker compete for a job during a layoff, you have to have seniority and: (1) Be qualified to do one of the remaining jobs, or; (2) Have qualifications substantially equal to a worker with less seniority. Reassigning jobs based on seniority is commonly known as "bumping." You "bump" a worker with less seniority out of the way of an open or remaining job
For example, say you have 15 years' seniority, and a co-worker has 10 years' seniority, but she's certified to operate a type of machine that you're not. Your CBA may allow the employer to let you go and keep the worker with less seniority.
Does you CBA allow bumping? Some CBAs allow you to bump a worker with less seniority anywhere in the company or the plant. Other CBAs limit bumping to your specific job classification or title or a lower job classification. So, for example, you may not be able to bump a junior employee who has a different job in different department than yours.
Superseniority provisions appear in many CBAs. Basically, these provisions protect union or "shop" stewards. They're the workers who are responsible for things like making sure the CBA is followed by the employer and the workers and handling disputes or "grievances" between them. By giving them superseniority, the CBA guarantees that the stewards are the last workers laid off and the first ones to be recalled. This way, a union representative is always on hand to make sure that the union members' interests are protected and the CBA is followed.
Some CBAs don't allow a layoff even when the employer claims that it doesn't have enough money to pay the entire payroll. Other CBAs require the employer to "preserve" or maintain enough work for union members. With such a clause, employers generally can't lay off union workers and replace them with non-union workers. Similarly, many CBAs bar employers from subcontracting work usually performed by union workers when the subcontracting itself causes a layoff or even after union workers have been laid off.
It's common for a CBA to give you the option of choosing between being laid off, reducing your hours, working part-time, or getting retrained. Your employer can't make you choose the one that's better for it. For example, it may be cheaper for the employer if you choose to go on part-time status, but if you select retraining the employer has to give it to you.
Many CBAs require employers to "recall" or rehire laid-off workers once the need for the layoff subsides, like when work picks up again. CBAs can be very different on this point. Sometimes the right to recall expires after a certain date, such as six months after the layoffs. Or, your CBA may provide that you can be recalled only to a job with the same or lower pay than your old job, or you can be rehired only for your previous job.
Reductions in Hours or a Layoff?
Sometimes, an employer reduces the number of hours you can work. Usually, unless your CBA states otherwise, the reduction in hours is not a "layoff," but rather is a "rescheduling" of work. In such cases, the employer doesn't have to follow the CBA's layoff rules, such as seniority and bumping rules.
Similarly, there are times when an employer makes a short-term RIF. This can be for a variety of reasons, such as when the employer retools or cleans equipment. Generally, if a shut-down or RIF is caused by a lack of business, the CBA's layoff provisions will apply. That's unless the CBA states otherwise. CBA's commonly provide that layoff and bumping provisions don't apply during short-term work suspensions, such as for one or two weeks.
The Worker Adjustment & Retraining Notification Act (WARN) may apply if you're being laid off. Generally, WARN requires employers with 100 or more workers to give you 60 days' advance notice of some closings and "mass layoffs." A closing can mean the shut-down of a plant or facility. "Mass layoff" has very specific meanings, but basically it means that a substantial number of workers are being laid off for more than six months.
The idea behind WARN is to give you time to find a new job or to train for one. WARN makes various tools available to help you do this, such as job search and placement services and education and retraining benefits. Also, many states have WARN acts that may provide you with more benefits and protections.
Questions for Your Attorney
- I'm not union member, but I pay my "fair share" of union dues. Am I covered by the collective bargaining agreement between my employer and the union? Does my non-membership impact my seniority in case of a layoff?
- My employer is offering union workers reduced wages and hours instead of closing the plant for several weeks. What guarantees can we get to make sure we return to normal hours and wages? If we refuse, does the shut-down fall under WARN?
- Dozens of union workers, including myself, were laid off. We were told that we'd be recalled within six to nine months. I found a new job, and now my "former" employer says that it doesn't have to rehire me. Is that true? Can I get my old job back?