CAAA: Union Seniority Undercut by SB 899

Thursday, October 24, 2019 | 1

When the Democrats in the state Legislature went along with Gov. Arnold Schwarzenegger's so-called workers' comp reform, they severely undercut the principle of union seniority.

Beginning right after the Civil War, railroad workers won seniority rights. By the turn of the century, newspaper workers had embedded it in their industry. And in World War II, the decisions of the War Labor Board spread the seniority principle even further.

Today, the seniority principle is in virtually every union collective bargaining agreement.

The United States Supreme Court wrote, "more than any other provision of the collective agreement ... seniority affects the economic security of the individual employee covered by its terms."

The root of the seniority principle is simple: Seniority is earned. Length of employment is an objective standard, a fact. Employers cannot make arbitrary decisions about a worker based on favoritism or to punish more assertive employees.

But as unions won and continue to protect workers as they get older, using seniority as an objective standard, California workers' compensation did the opposite. The law substituted an arbitrary and subjective standard for older injured workers; an injury can be compensated less as age is used as a negative criterion for determining workers' compensation benefits.

It's an insidious reversal of American history, and no one seems to care. Worse, no one even debates the issue. And certainly no one sees the slippery slope workers are now on.

The fancy word for this subjective substitute for seniority is "apportionment." An older worker blows out a shoulder. The system now says, "that shoulder was old, so it's worth less."

An older worker slips a disk. "Their back is old, so it's worth less."

An older worker breaks a foot. "That foot was old, so it's worth less."

It's all "legal" and a dangerous "new normal." And it'll get a lot worse if we all don't raise hell.

This column was written by the California Applicants' Attorneys Association Labor Committee. This opinion is republished, with permission, from the CAAA website.