Model Just Employment Policy

The model Just Employment Policy was prepared by the Harrison Institute for Public Law in conjunction with the Kalmanovitz Initiative for Labor and the Working Poor at Georgetown University. A guide to understanding the Just Employment Policy is appended below.

Table of Contents

1. Preamble

2. Covered Workers

a. Direct Employees
b. Contract Workers
c. Unionized Workers

3. Just Employment Principles

a. Preference for Full-Time Positions
b. Preference for Employee Continuity
c. Equal Access to Community Resources
d. Living Wage
e. Dignified Workplace

4. Oversight and Implementation

a. Oversight Committee
b. Worker Feedback
c. Implementation
d. Limit On Legal Obligation

 

Download the complete model Just Employment Policy.

1. Preamble

With this policy, [institution’s name] recognizes the connection between its Catholic faith and its moral commitment to promote a just work environment. In the words of Pope Francis, “it is through free, creative, participatory and mutually supportive labour that human beings express and enhance their lives.” Consistent with this vision and the Ignatian value of cura personalis, [institution’s name] adopts this Just Employment Policy to fulfill an important dimension of its religious mission and strengthen an essential element of its Catholic identity.

[institution’s name] adopts this policy in order to ensure our treatment of workers is consistent with our moral obligation to preserve life and promote the virtue of industriousness. For over a century, Church doctrine has recognized that employers fulfill their obligation to support life when they provide workers with a wage sufficient to fulfill their material, social, and spiritual needs. Similarly, Church doctrine recognizes that industriousness is a virtue; labor should be spiritually fulfilling, not spiritually degrading. Employers promote this virtue when they provide workplaces that protect workers’ dignity and respect workers’ unions, which “help workers to share in a fully human way in the life of their place of employment.”

2. Covered Workers

a. Direct Employees

Unless a provision states otherwise, this policy applies to all direct employees. In this policy, the term “direct employees” refers to all employees of the university except volunteer professionals. In this policy, the term “volunteer professionals” refers to employees working in a capacity other than their primary occupation. A primary occupation is any one from which an individual earns thirty percent or more of his or her wage income in a given year.

b. Contract Workers

This policy applies to contract workers where the contractor for which they work has one or more agreements with the university with both an aggregate value greater than $50,000 per year and an aggregate duration longer than one month. In this policy, the term “contract workers” refers to individuals who provide services to the university community on behalf of a contractor,” which is a business that has a contract or lease with the university.

c. Unionized Workers

The university must include—and must require its contractors to include—the provisions of this policy in initial collective bargaining proposals to unionized direct employees or contract workers. In order to respect the right of workers to bargain collectively over their working conditions, the university must permit—and must require its contractors to permit—workers’ bargaining representatives to modify the provisions of this policy that apply to unionized workers through collective bargaining agreements.

3. Just Employment Principles

a. Preference for Full-Time Positions

The university should employ workers on a full-time basis when possible and on a part-time or temporary basis only when necessary.

b. Preference for Employee Continuity

If the university changes contractors, it should seek and prefer new contractors willing to employ contract workers of its previous contractor.

c. Equal Access to Community Resources

The university must provide direct employees and contract workers equal access to the following community resources: libraries, fitness facilities, cultural institutions (such as musical ensembles), extracurricular programming, language training, transportation services, discounted purchases, credit unions, and [additional resources to be determined].

This provision does not prevent the university, its contractors, or their employees from negotiating access to additional resources as part of employees’ compensation.

d. Living Wage

By [date], the university must pay workers at least a living wage for a single individual in the metropolitan area, as determined by the Poverty in America Project at the Massachusetts Institute of Technology (available at livingwage.mit.edu). A living wage is the hourly rate an individual must earn to support her household if she works full time. The university may compensate workers either entirely in cash or in a combination of cash and contributions to health insurance premiums, so long as total hourly compensation is at least equal to the living wage. The living wage rises each year with the cost of living. As such, the university must adjust its wage scales each year to ensure that its lowest wages are at least equal to the living wage.

By [date], the university should pay workers a living wage for one worker and one-half the cost of a child. At this wage, two full-time employees could support a family of three.

e. Dignified Workplace

 

Nondiscrimination

Strongest possible option
The university must not discriminate on the basis of race, color, religion, gender, nationality, alienage, age, disability, height, weight, sexual orientation or political opinion. The university must comply with all federal, state, and local nondiscrimination laws.

Local legal standard option
The university must provide a work environment that is free of discrimination, consistent with federal, state, and local law.

This provision does not prevent the university from exercising its right to deal on the basis of its religious values with those employees who contribute to its spiritual mission.

Occupational Safety & Health

The university must provide a safe and healthful work environment, consistent with federal, state, and local law.

Protection from Workplace Bullying and Harassment

The university and its contractors must treat workers with dignity and respect. The university and its contractors must not subject workers to any physical, sexual, psychological, or verbal abuse or harassment.

Freedom of Association

[Institution name] is committed to freedom of association and recognizes that unions play a productive role in our community. Consistent with federal, state, and local law, the university must respect workers’ rights to freely choose whether or not they wish to be represented by unions, bargain collectively, and engage in other concerted activities for mutual aid and protection.

4. Oversight and Implementation

a. Oversight Committee

 

Authority

The university must create an oversight committee with the authority to:

  1. Review the employment policies and practices of the university and its contractors and verify that they comply with this policy and their contractual obligations, respectively.
  2. Recommend that the university alter or terminate employment policies and practices and contracts with contractors that it believes to be inconsistent with this policy.
  3. Inform the [institution name] community about how the university is implementing this policy by issuing regular reports to the [institution name] community. In its reports to the community, the committee should include (1) a list of university contractors, (2) the results of the annual employee census, and (3) the wage scales and benefit packages of the university and its contractors and may include items such as a (4) summary of recent university helpline reports and workplace audits.

Structure

The university must appoint the following [institution name] community members to the oversight committee, each of whom should serve at least a one-year term:

  1. three faculty members chosen by the faculty governing body, at least one of whom has expertise in Catholic Social Teaching,
  2. one member of the human resources department chosen by the university administration,
  3. one member of the [institution name] Jesuit Community chosen by the Jesuit Community, and
  4. two students, one direct employee, and one contract worker, all chosen by the student government.

Worker members serve on the committee in an individual, not a representative, capacity. The university must require worker members to agree not to use their committee positions to act as formal representatives of other university workers.

Access to Information

The university must disclose to the oversight committee general information about employment practices of the university and its contractors. General information includes wage scales, benefit packages, union neutrality policies, grievance procedures, contract negotiation procedures, and an annual employee census. An employee census includes the number of workers in each workplace, classified by employment status (full-time, part-time, or temporary).

The university should disclose information specific to its business operations and those of its contractors. Specific information includes wage & hour records, grievance complaints, grievance findings, workplace audits, contractor assurances, relevant contract language, relevant contracting history, and helpline reports. Helpline reports include the number of calls to the university helpline, the topics of callers’ complaints, and the manner in which each complaint has been resolved.

Confidentiality

In general, committee members should presume information that the university discloses to the oversight committee is not confidential; the committee may include it in its reports and public communications. Occasionally, the oversight committee may be unable to advise the university without referring to confidential information. Before the university presents the oversight committee with confidential information, the university must communicate to all committee members (1) notice that the information is confidential and (2) the laws or ethical rules that apply to committee members who disclose confidential information.

In order to ensure an environment in which members feel comfortable discussing university policy, the deliberations of the oversight committee should be confidential.

b. Worker Feedback

 

Grievances

The university must provide direct employees—and must require its contractors to provide their contract workers—with a grievance procedure regarding compliance with this policy. The university must not condition—and must require that its contractors not condition—workers’ use of this grievance procedure on those workers’ forfeiture of any legal rights.

Meetings

University officials may meet with workers, individually or in groups, to explain this policy and the process it creates for responding to potential violations. The university may work with contractors to investigate and resolve violations of this policy identified through these meetings.

University Helpline

The university must maintain a helpline that enables workers to anonymously report actions that they believe to be inconsistent with this policy. The individual responsible for the helpline must refer all reports of noncompliance to an impartial university administrator with authority to resolve the alleged violation. The university should work with contractors to resolve violations identified through the helpline.

Non-Retaliation

The university must not retaliate—and must require that its contractors not retaliate—against any worker, in any manner, for raising a concern about this policy or workplace issues relevant to this policy.

c. Implementation

 

Notice

Notice to students and the university community
The university must publish this policy, as well as the telephone number for its helpline, conspicuously on its website. The university must also inform all students of this policy during new student orientation.

Notice to workers

  1. During new employee orientation, the university must notify direct employees—and must require its contractors to notify their contract workers—of employers’ obligations under this policy. Additionally, the university must require its contractors to allow university personnel to notify contract workers of community resources to which contract workers have access at contractors’ new employee orientation.
  2. The university must place—and must require its contractors to place—a poster in locations where each typically posts notifications of employee rights. The poster must summarize university and contractor obligations under this policy, notify workers of their right to use the grievance procedure, and list the telephone number for the university helpline.
  3. When providing notice, the university and its contractors must communicate both orally and in writing, in English as well as any first language for more than twenty percent of workers in a given workplace.

Contract Evaluation and Negotiation

Evaluation

  1. The university must make prospective contractors aware of their future responsibilities under this policy. The university must provide any prospective contractors with a copy of this policy.
  2. The university should enter agreements only with contractors that have the capacity to comply with this policy.

Negotiation In addition to any requirements the university must place on contractors subject to other provisions of this policy, the university must require each contractor to:

  1. provide the university with general information about employment practices for contract workers,
  2. provide the university with wage & hour records,
  3. provide the university with monthly statements assuring the university it is complying with all commitments negotiated in reference to this policy.
  4. permit the university to conduct announced or unannounced audits to verify that relevant business practices comply with this policy,
  5. permit the university to meet with contract workers,
  6. acknowledge that failure to comply with commitments negotiated in reference to this policy would be a material breach of agreements with the university, and
  7. reimburse the university for costs it might incur in the event that business practices do not comply with this policy, including reputational and administrative costs.

Audits

The university should conduct regular unannounced audits to determine how well the business practices of the university and its contractors comport with this policy.

d. Limit On Legal Obligation

The university adopts this policy out of a sense of moral duty. Accordingly, this policy does not modify the terms of a contract with an employer unless the university includes it in the contract with that employer.

Guide to the Model Just Employment Policy

The guide to the model Just Employment Policy is intended as a resource for readers to understand the purpose of the various components of the JEP.

Table of Contents

1. Introduction

a. Colleges and Universities: Promoters of the Common Good or of Growing Inequality?
b. Just Employment and the Living Wage at Colleges and Universities
c. What the Model Just Employment Policy Contributes
d. How to Use This Guide

2. Covered Workers

a. Direct Employees
b. Contract Workers
c. Unionized Workers

3. Just Employment Principles

a. Preference for Full-Time Positions
b. Preference for Employee Continuity
c. Equal Access to Community Resources
d. Living Wage
e. Dignified Workplace

4. Oversight and Implementation

a. Oversight Committee
b. Worker Feedback
c. Implementation

 

Download the complete guide to the model Just Employment Policy.

1. Introduction

a. Colleges and Universities: Promoters of the Common Good or a Cause of Growing Inequality?

In the past three decades, the United States has become a vastly more unequal society. The fortunes of the richest Americans have risen dramatically. From 1981 to 2007, the incomes of the top one percent rose over 200 percent and the incomes of the top 0.1 percent grew over 380 percent.

For the substantial majority of American families, real incomes have barely budged since the mid-1970s, and the trend is getting worse. Median incomes fell throughout the 2000s. Following the Great Recession, the economy has resumed growing. Yet over half of all job growth since the recession ended in 2009 has been in low-wage occupations. Today, over one third of American workers are “contingent workers” such as temporary or part-time employees, and the wage share of the economy has fallen to a record low.

Colleges and universities are no exception to this trend. In important ways, their policies are contributing to growing inequality. Since the 1970s, according to Inside Higher Ed, the ranks and salaries of top university administrators have grown by 140 percent and 175 percent, respectively. Today, hundreds of university administrators are members of the one percent, and dozens earn more than $1 million a year, according to the Chronicle of Higher Education. Yet over 700,000 university workers—the individuals who feed us, maintain our campuses, and clean our classrooms—earn less than a living wage. Numerous observers, including the American Association of University Professors, have also noted that universities employ a growing number of part-time, contingent professors.

Whether colleges and universities will continue to profit from and exacerbate inequality or contribute to its solution is an urgent moral question for the nation—a question that is inescapable for Catholic and Jesuit colleges and universities. Catholic institutions are rooted in social teaching that promotes solidarity and social justice, but they are at risk of becoming instruments of growing inequality when they ignore the rights of workers and pay less than a living wage.

b. Just Employment and the Living Wage at Colleges and Universities

Colleges and universities have the potential to act as model employers, recognizing the rights of their workers and committing to pay them living wages. As colleges and universities have successfully promoted environmental sustainability, so too must they promote social sustainability, workers’ rights, and social justice. For Catholic and Jesuit colleges and universities, this is a moral imperative.

c. What the Model Just Employment Policy Contributes

Over the past two years, Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor has collaborated with students and faculty from the Loyola University of Chicago, Loyola University of New Orleans, Le Moyne College, John Carroll University, and St. Joseph’s University to create a Model Just Employment Policy (JEP). We expect the JEP to support Catholic universities’ living wage movements in three significant ways: First, the JEP channels the moral force behind Jesuit universities’ living wage movements into a comprehensive proposal for how Catholic employers should structure their workplaces and work relationships in order to revere life and acknowledge the virtue of industry (hard work). Second, the JEP translates abstract Catholic values into specific changes to university structures, helping advocates show university officials what their moral vision might look like in practice. Finally, the JEP creates a space within each university’s administrative structure where faculty, students, and workers can oversee their university’s commitment to these values on an ongoing basis.

d. How to Use This Guide

In order to frame advocates’ requests in a way that is easier for university administrators to implement and harder for them to object to, the JEP implicitly acknowledges concerns that universities are likely to have. Drafting the policy required an understanding of universities’ organizational structure, the financial and legal contexts in which they operate, and how the methods with which universities and other major employers have adapted to similar policy demands in the past. Without this background information, advocates might have trouble recognizing the meaning and purpose of certain provisions in the policy. This guide to the JEP connects readers to this background research. It discusses the implicit assumptions about the way universities do business, the objectives of key provisions, and the practices at universities from which the JEP draws lessons and ideas.

2. Covered Workers

Universities and other large institutions structure their relationships with workers in a wide variety of ways (full-time, part-time, subcontracted, etc.). The JEP covers as many of these relationships as possible. Although an ideal policy might cover everyone, the JEP does not extend to certain workers for economic, logistical, and legal reasons. This section discusses those workers that are covered, but it also identifies (implicitly or explicitly) the ones that are not covered.

a. Direct Employees

This provision places all university employees except “volunteer professionals” within the JEP. The policy exempts volunteer professionals in order to devote a greater proportion of a university’s resources to workers with unmet needs. University administrators often object to living wage proposals that include adjunct professors because many adjunct professors are working professionals who teach university courses as a form of community service, for whom wages are an honorarium. However, other adjuncts work full-time teaching at multiple institutions under adverse conditions for significantly lower salaries than their tenure-track counterparts. Even though most adjuncts earn more than the hourly living wage for a single adult, the policy will still benefit them—particularly through its provision protecting freedom of association. Exempting volunteer professionals addresses administrators’ concerns without excluding more economically vulnerable adjuncts.

The JEP takes its definition of “primary occupation” from the Internal Revenue Service, but it reduces the earnings threshold from 50% to 30% in order to ensure that the JEP covers struggling employees (such as adjuncts) who take a second job in another occupation (such as a janitor) in order to make ends meet. For example, if a professor earns a significant portion of income through teaching, the JEP applies—even if the teaching activities occur at multiple universities and even if the professor has an additional non-teaching job. Professionals teaching for an honorarium easily make enough at their day job; we expect they will fall below the 30% threshold.

b. Contract Workers

This provision determines which contract workers are within the JEP. The JEP covers workers “who provide services to the university community.” This clause includes workers serving under contractors who do not provide services directly to the university as a corporation; for example, this would include the employees of a university’s Barnes & Noble bookstore. It excludes employees of a contractor when those employees serve neither the university as a corporation nor consumers within the university community, for example, employees of other Barnes & Noble outlets in the United States.

For two logistical reasons, the JEP exempts contract workers serving under contracts that are not large enough and do not continue long enough.

The university has more leverage over large, long-term contracts than small, short-term ones. For example, a contractor would likely accept a smaller profit margin for a ten-year contract to provide cafeteria services than for a two-week contract to cater graduation and reunion events because the prospect of consistent income over a ten-year period is so valuable. Second, the university spends proportionally less administering the JEP in situations involving expensive contracts. Every contract the JEP covers requires the university to spend additional time negotiating the contract and additional resources monitoring its business relationship under the contract. For particularly small contracts, these negotiating and monitoring costs likely outweigh the benefit of covering the contract workers serving under them. (Small contracts typically involve fewer contract workers.)

Short-term contracts provide too little time for a contractor to meaningfully alter its business practices or meaningfully improve employees’ lives.

c. Unionized Workers

This provision determines how the JEP will affect unionized workers. Because of federal labor laws, the JEP cannot change work conditions for unionized workers in the same way as it does for non-unionized workers. Employers must negotiate in good faith with their unionized employees before changing their working conditions in any way—even if the employer intends the change to benefit its employees. Moreover, unionized employees may appreciate the opportunity to change some of the policy’s provisions. For instance, the JEP allows the university to adjust the living wage if it provides workers with health care, but it does not allow the university to make a similar decision in order to provide childcare. Unionized employees might negotiate a lower wage in exchange for employer-provided childcare.

3. Just Employment Principles

a. Preference for Full-Time Positions

A variety of federal laws encourage universities to prefer contingent (part-time or temporary) labor by requiring employers to spend more money on full-time or continuing employees than on contingent ones. The JEP helps the oversight committee and the university community address these unfortunate incentives. In its procedure section, it requires an employee census to help the oversight committee see how the university structures its employment relationships. In this provision, it provides a standard by which, the committee can use the census to judge whether the university is meeting its goal of relying on contingent labor only when necessary. The JEP sets a goal —not a mandate—for hiring contingent workers only when necessary. The approach is not mandatory because it may be too difficult for the university or the oversight committee to determine conclusively whether the university is meeting this necessity standard.

Interpreters of the policy should consider at least two theories of necessity: one based on market pressures and one based on the just-in-time nature of contingent labor. Because neither seemed ideal, the policy leaves the term “necessary” open for each university’s oversight committee to interpret for itself.

  1. Market pressure theory argues that contingent labor is necessary in order for employers to stay competitive with their peers. For example, if a university cannot hire more full-time professors without raising tuition so high it would drive down enrollment, it could argue that its adjunct faculty are necessary. A market-based standard would be easy for the oversight committee to apply if it can find an average for contingent employees at competing institutions. The university would be less likely to resist such a standard, because it would allow them to remain financially competitive. However, this standard usually would not drive the university to improve its work environment.
  2. Just-in-time theory argues that contingent labor is necessary in order to respond flexibly to seasonal and cyclical trends or unexpected emergencies. For example, if a university’s campus floods, the university would be able to argue that temporary groundskeepers are necessary to deal with the emergency, even if its decision means that it will employ more temporary groundskeepers than its competitors. A just-in-time standard is harder for the oversight committee to apply, and the university might resist it more strongly. But the standard would drive the university to provide a better work environment than its peers.

b. Preference for Employee Continuity

In order to prevent the JEP from costing particular contract workers their jobs, this provision expects the university to seek out new contract partners willing to employ the contract workers of a previous contractor and to prefer those contractors over others. Empirical research suggests that when minimum wages increase, existing companies struggle to adapt their business plans; new ones with plans designed for the new wage floor replace them. If the JEP’s living wage increase leads to analogous turnover among university contractors, some contract employees might lose their jobs. This provision attempts to prevent this potential unintended consequence, helping workers remain at the university, even if the contractor that employs them leaves.

This provision will change the way a university evaluates its potential contractors, and so it logically fits in the procedural (Contract Evaluation) section of the policy. However, it appears in the substantive section of the JEP because protecting contract workers from the potential unintended consequences of the policy is important to fulfilling the policy’s goal of improving workers’ lives and protecting the university’s reputation as a fair employer.

Under the JEP, the university does not commit to contracting only with companies that are able to employ current contract workers. Instead, it sets this as a goal rather than as a mandate because the university may not always be able to find a contract partner willing to hire the workers of a current contractor.

c. Equal Access to Community Resources

This provision recognizes that contract workers are equal members of the university community by extending them access to resources that direct employees already enjoy. However, if the JEP were to require the university to extend all direct employee benefits to contract workers, the university might respond by reducing its benefit packages. Therefore, the policy assures access to a specific list of benefits, which can be modified, and also emphasizes that workers may negotiate for additional, unequal benefits outside the JEP’s list.

The JEP list of benefits is based on a review of employee manuals from several Jesuit universities. The JEP does not include a number of benefits identified by a survey from the Society for Human Resource Management (pension fund access, parking, crisis counseling, tuition assistance, and childcare). The policy omits these benefits because the marginal cost of providing them to contract workers will likely be high enough to encourage universities to withdraw these benefits altogether rather than extend them to contract workers. For example, universities typically value library privileges at between one and several hundred dollars per user per year, but tuition assistance costs thousands. Advocates should consider tailoring the JEP list to their own universities by examining employee manuals to see what benefits offer direct employees and considering the likely cost of extending those benefits to contract workers on their campuses. (For instance, rural campuses would be able to extend parking benefits at less expense than urban ones.)

d. Living Wage

The Catholic Church believes wages should support entire households. In order to provide an attainable initial goal, this provision requires universities to pay wages sufficient to support one person and then encourages them to pay wages that can support one person and one dependent. The JEP uses the MIT Poverty in America Project (PAP)’s living wage definition because PAP is a widely cited, highly accessible, annually updated authority on the living wage. The JEP encourages but does not require universities to increase their wages in the future because it may be difficult for universities to predict their future financial capacity.

The JEP expresses its living wage requirements as an hourly figure; workers will earn enough to live if they work full-time. An hourly approach provides workers the option to work part-time, yet it curbs universities’ incentives to replace full-time with part-time workers to avoid paying living wage costs.

e. Dignified Workplace

 

Nondiscrimination

The model JEP includes two versions of this provision. Option one explicitly forbids certain practices, consistent with the broadest antidiscrimination laws in the country, such as the District of Columbia Human Rights Act and San Francisco’s non-discrimination ordinance. As an alternative, option two requires a university to follow federal, state, and local law. This approach will protect workers to a different extent depending on where a university is located. Federal law is less comprehensive than option one. (For example, it does not protect individuals from discrimination based on sexual orientation or gender.) States and localities vary in the degree of protection they provide from employment discrimination. Universities that are committed to providing the broadest possible protection from discrimination may prefer option one. Universities that are uncomfortable with any of the specific prohibitions of option one may prefer option two, which does not commit them to providing any protections they are not already obligated to provide by law.

Both options preserve universities’ rights as religious institutions to deal with “ministerial employees” on religious grounds. The Free Exercise Clause of the U.S. Constitution and numerous state statutes exempt relations between religious organizations and individuals who contribute to their religious missions from federal, state, and local nondiscrimination laws. However, federal courts have defined the term “ministerial employees” quite narrowly. The category is limited to clergy and teachers who are required to incorporate religion into their instruction; it does not include employees like church clerks and administrators and professors at religious universities who teach secular subjects.

Occupational Safety & Health

Unlike the provision for nondiscrimination, the JEP only includes a single version of its provision concerning the university’s obligation to provide a safe and healthful work environment. Like option two for the nondiscrimination provision, this provision requires a university to provide protections they already obligated to provide by law.

Protection from Workplace Bullying and Harassment

This provision addresses a significant gap in U.S. law: Although abusive supervisors can have a devastating impact on workplaces and individuals, there are no state or federal laws outlawing workplace bullying, which the policy characterizes as psychological or verbal abuse or harassment. Bullying is only unlawful if it constitutes discrimination, which can be quite difficult to prove. Moreover, victims of workplace bullying rarely prevail in court. This provision is not based on any statute and is somewhat open to interpretation; university stakeholders should encourage the university to interpret it robustly.

Interpreters of this policy could look to several approaches to workplace bullying, such as the laws of other nations and at least one agreement between a U.S. union and an employer (a collective bargaining agreement, or “CBA”). The French labor code defines workplace bullying quite broadly as behavior that is “likely to harm the dignity, the physical or psychological heath of the victim, or his professional career.” Alternatively, the Occupational Health and Safety Act of Saskatchewan defines workplace bullying somewhat more narrowly as behavior that “adversely affects the worker’s psychological or physical well-being and that the [perpetrating] person knows or ought reasonably to know would cause a worker to be humiliated or intimidated.”  However, French law regards only “repeated acts” as bullying, while the Province of Saskatchewan defines bullying as either “repeated conduct, comments, displays, actions or gestures” or “a single, serious occurrence…comment, display, action or gesture, that has a lasting, harmful effect on the worker.” The only major U.S. CBA with a workplace bullying provision is more vague than French or Saskatchewanian law. It defines workplace bullying as “behaviors that contribute to a hostile, humiliating or intimidating work environment, including abusive language or behavior.” Both France and the Saskatchewan require employers to take reasonable steps to ensure that their workplaces are free of bullying; the U.S. CBA permits workers to file a grievance if they believe they have been a victim of workplace bullying but imposes no affirmative duty on the employer.

Freedom of Association

The Catholic Church has recognized freedom of association for over a century. This provision establishes a positive tone for university labor relations, but will not provide much protection for workers unless advocates convince their universities to interpret it differently than similar phrases in federal labor law. At Georgetown University, a nearly identical provision has led to a neutral university stance toward union drives, which Catholic labor advocates recently praised as “a model for Catholic institutions around the country.” However, universities might interpret this provision to merely require them to behave consistently with federal labor laws, which leave employers free to oppose unions in a variety of ways. Advocates should vigorously monitor universities’ conduct during unionization drives to ensure the university interprets this provision robustly.

4. Oversight and Implementation

a. Oversight Committee

 

Authority

A distinctive feature of the JEP, compared with other university employment policies, is the formal oversight role it provides university stakeholders such as students, faculty, and workers. This provision creates a committee to review university employment policies, practices, and service contracts; critique the university’s relationship with its workers and its contractors; and inform the university community whether the university is implementing the JEP in good faith.

This concept of formal ongoing oversight is based on the history of Georgetown University’s living wage movement. When students at Georgetown began to advocate for a living wage policy, the university formed an ad-hoc “Advisory Committee on Business Practices” to study the issue of employee compensation. That committee proposed Georgetown’s Just Employment Policy, which preserved the committee as a continuing oversight body.

Structure

This provision identifies committee membership according to stakeholder groups and specifies how each member is selected. The model JEP enables students to appoint workers to the committee because it would be logistically challenging for universities to set up and run fair processes for selecting worker committee members. This strategy also encourages student-worker solidarity. The oversight committee provides university stakeholders, including direct and subcontracted workers, with an opportunity to influence how the university implements this policy. However, the committee does not displace and is not a substitute for collective bargaining between direct employees and the university or subcontracted employees and university contractors.

Access to Information

This provision requires the university to disclose to the committee certain general information about the policy and encourages it to disclose certain specific information. Specific information is not mandated because it is especially sensitive; universities and contractors guard it to protect themselves from competition and legal liability. (Specifics about a company can give competitors insight into its business strategy and violate its workers’ privacy.)

Confidentiality

This provision allows committee members to assume information the committee receives is public unless the university clearly warns them it is not. The university and its contractors may be unwilling to share some information with the committee unless the committee agrees to keep the information confidential. Committee members may receive confidential information—and thereby agree to maintain confidentiality—if they believe receiving it will enable them to more effectively exercise their oversight responsibilities. Committee members may decline to receive confidential information if they prefer not to assume a duty of confidentiality to the university.

b. Worker Feedback

 

Grievances

Providing university workers with a role in enforcing the JEP is likely one of the most effective ways of ensuring that the university and its contractors comply with their JEP obligations. This provision also seeks to provide workers with a greater voice in their workplaces.

This provision preserves but does not expand university workers’ rights to bring employment-related claims in court. It provides workers with no additional rights to sue the university or its contractors, and it precludes the university and contractors from conditioning use of their grievance procedure on the forfeiture of any legal rights.

Meetings

Because university workers may wish to discuss the policy in a context other than their workplace grievance procedure, this provision authorizes university administrators to meet directly with university workers and answer questions they may have about the policy.

University Helpline

Because some university workers may be too shy or fearful to use the workplace grievance procedure or meet with university officials, this provision provides workers a feedback option that preserves their anonymity.

Non-Retaliation

This provision protects workers who provide feedback to the university or its contractors concerning the JEP. It would be contrary to the spirit of the JEP for the university or its contractors to penalize employees for exercising their rights under the policy. Moreover, even the most assertive workers may be unwilling to use any of the worker feedback mechanisms if they fear that they may be disciplined for doing so.

c. Implementation

 

Notice

This provision specifies how various stakeholders in the university community will learn about the policy. The university must ensure students are aware of the policy so that they can involve themselves in its oversight committee. The university must ensure workers are aware of the policy so that they can advocate for themselves through its grievance procedures and report problems through its helpline and worker meetings. To ensure illiterate workers understand the JEP, notice to workers includes oral as well as written information. To overcome language barriers, the JEP also requires notice in additional languages in workplaces wherever necessary. For workers and students who misplace their written notices, the JEP requires the university to post notices both online and in physical workspaces.

Contract Evaluation and Negotiation

Evaluation

This provision requires the university to notify its potential contract partners of the commitments they must be willing to assume in order to do business with the university. If it avoids negotiating with prospective contractors who are unlikely to comply with their JEP-related obligations, the university will save time and money. For large contracts, universities already invite contractors to negotiate on terms that specify the contractor’s potential responsibilities and set requirements for the contractor’s financial capacity.

Under the JEP, the university does not commit to contracting only with companies that have the capacity to comply with the JEP. Instead, it sets this as a goal rather than a mandate because the university may not always be able to find a contract partner with existing capacity. Also, it might be difficult for the university or the oversight committee to determine conclusively whether a particular contractor has appropriate capacity

Negotiation

Because the JEP is a policy adopted by universities, not contractors, it cannot control contractors’ behavior directly. Instead, it requires the university to negotiate with its contractors to commit them to contract provisions consistent with the JEP. The JEP commits the university to various other negotiating duties elsewhere; this provision requires the university to negotiate with contractors (1) to ensure it can effectively monitor contractors’ JEP-related contract commitments, and (2) to obtain sufficient leverage to enforce those commitments.

Subsections i, ii, iv and v require the university to negotiate for access to contractors’ information and their workplaces. The university may pass the information it receives to the oversight committee, and it may use its access to contractors’ workplaces to enable worker feedback and conduct audits.

Subsections iii, vi, and vii require the university to negotiate for the right to enforce the JEP-related provisions in its contracts against contractors. 

1. Should a contractor fail to meet its JEP-related obligations, subsections iii and vi provide the university with more significant leverage than it would enjoy otherwise. Together, these two provisions require the university to negotiate contracts that provide evidence that the university would not have entered those contracts had the contractor not agreed to its JEP-related provisions. This means that if a contractor fails to comply with these provisions, the university can collect damages based on the full value of the contract instead of only the provisions with which the contractor failed to comply.

2. Subsection vii requires the university to establish within its contracts the concrete amount its contractors will risk if they choose not to comply with their JEP-related commitments under the contract. This saves the university the cost of arguing with contractors about appropriate damages after a problem occurs, making universities more likely to collect damages. It also puts contractors on notice about how much they would risk if they were to choose not to follow their contracts’ JEP-related provisions. Courts are most comfortable enforcing provisions that set costs in advance for harms that are difficult to estimate, such as harms to the university’s reputation or the time and money it would spend resolving its relationship with a breaching contractor and seeking a new business partner.

Audits

As large institutions, most universities have auditing departments. This provision requires those departments to review the university’s JEP-related goals, but it leaves auditing departments free to decide how thorough and how frequent these investigations should be to effectively ensure that the university and its contractors comply with the policy.

d. Limit On Legal Obligation

This provision clarifies that the JEP does not directly extend new legal rights to workers, but instead, establishes moral standards for university communities that adopt it. Advocates for just employment practices within the university can shape the way the university implements those standards through the JEP’s oversight committee. The oversight committee will report to the university community on the relevant activities and decisions of the university and its contractors, and the university community can decide whether to advocate for the university or its contractors to change their ways.