Workers acting with a common purpose have rights

In 2017, Iowa Republicans rewrote our public sector collective bargaining law, Chapter 20, dramatically taking away the rights of Iowa public sector workers to bargain a contract. However, there are certain statutory rights Iowa Republicans did not touch. Perhaps most importantly, public employees maintain the right to engage in concerted activities for mutual aid or protection.

That right means that one or more employees must take some tangible actions for their conduct to be protected. Employees confiding, griping, or warning each other about workplace problems are not enough. Several years ago, the College Community School District terminated a teacher who provided wraparound care for elementary students. A judge accurately determined that she was fired for having text message conversations with a co-worker on her own time, on her own phone. In her text messages, the teacher said things like, “do not trust (administrator) Kathy, she is a backstabber.” “(Administrator) Kylee plays favorites.” The co-worker with whom the teacher had been having these text exchanges ratted her out to management. Two days later the teacher was fired.

The judge determined that under Chapter 20 a public employer has the right to fire employees for conversations between co-workers, on their own time, on their own devices, regarding complaints or concerns about work. These conversations may have been protected in the private sector, under the National Labor Relations Act, but they are not protected under Iowa law. To be protected under Iowa law, the co-workers must have contemplated taking some type of group action. Simply complaining or warning each other was not enough.

Fast forward to 2021. The President of the Board of Regents announced a policy prohibiting any requirements of masking at any state university. At the University of Northern Iowa, one veteran biology professor felt very concerned — as a biologist — that a lack of masking made classrooms unsafe for himself, his peers and his students. On the other hand, he had a lab course to teach and believed it would shortchange his students to even attempt to teach that class online rather than in person.

The professor had conversations with numerous colleagues, confiding that he was contemplating creating his own masking requirement for his class. After discussion and contemplation, the professor announced to his students that they would be required to wear masks in spite of the Regents’ policy. He then told his colleagues what he had done and suggested they consider doing the same thing. To enforce his classroom policy, the professor advised students that if they did not comply on a particular day, they may lose points. Everyone complied, and it was never an issue.

UNI took his class from him and suspended him from teaching — though later tacitly acknowledging they did indeed need his expertise to conduct the class. UNI disciplined the professor. The professor argued he was exercising his Chapter 20 rights to engage in concerted activities for mutual aid and protection: namely, his health and the health of his colleagues.

A judge found that the professor’s actions were largely protected. He had the right to create this policy for his classroom, and his classroom policy could override the anti-masking fiat plopped one day on the Board of Regents website. However, the judge found the professor lost protection by his enforcement mechanism — the potential impact to student grades. Up to the point of saying there could be an impact on student grades, though, the professor was within his rights to ignore the Regents’ policy.

So — in the right situations — there can be avenues for employees, acting together, to override public employer policies. There could be special education teachers with concerns for their own and their colleagues’ health who believe a school district policy puts them at risk and collectively choose a better way to do the work; that could be protected. There could be county road crew employees who believe the supervisor’s directives expose them to too much risk of injury and find a different way of getting the job done; that could be protected.

Creative, collaborative public employees willing to work with common purpose against dumb management decisions still may have some rights in the state of Iowa.

Nate Willems practices labor law in Cedar Rapids. This was first published in the Prairie Progressive.