Bills Allow States to Protect Workers from Identity Theft and Stalking

Protecting workers from identity theft and stalking should be a bipartisan issue. While Republicans and Democrats can hardly agree on whether the sky is blue, both political parties should agree everyone should have the right to work without fear for his or her privacy or safety. At the very least, there should be consequences if someone jeopardizes their privacy or security.

To that end, Reps. Drew Ferguson and Buddy Carter (both Georgia Republicans) have introduced the Freedom from Union Identity Theft and Freedom from Union Stalking Act. These bills ensure that federal labor law does not preempt common sense state protections against identity theft and stalking.

Here is a real world example why these bills are necessary. In 2008, the Communications Workers of America (CWA) Local 3602 President John Glenn posted the names and Social Security numbers of 33 AT&T employees, who had exercised their right to revoke their union membership and refrain from paying union dues, in a public area at the company’s North Carolina facility. This was an obvious act of retribution on the union’s part to punish the workers for ending their union membership.

With the help of the National Right to Work Legal Foundation, the AT&T workers filed an unfair labor practice with the National Labor Relations Board (NLRB). They charged that the CWA was attempting to coerce them into joining the union and that the union breached its duty of fair representation by only posting the Social Security numbers of non-union workers .

Instead of charging the union with an unfair labor practice, the NLRB regional director approved a settlement agreement, which did not force the CWA to admit any wrongdoing; it merely made the union post a notice that it would not violate workers’ privacy again. A proverbial slap on the wrist.

Unsatisfied by the result, the workers filed a lawsuit in North Carolina court under the state’s Identity Theft Protection Act.

This case would seem like a slam dunk. The union publicly displayed workers’ private information as a way of punishing them for exercising their right to not pay dues.

However, the North Carolina Appeals Court ruled the NLRA preempts state law that declares identity theft a criminal offense.

The preemption regime associated with the NLRA is broad, but the courts have created two exceptions when state law is not preempted by the NLRA:

(1) “where the activity regulated was a merely peripheral concern of the Labor Management Relations Act[;]” or (2) “where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.”

A state law criminalizing identity theft is clearly only peripheral concern to national labor policy. The NLRA does not cover identity theft and outlawing it does not interfere with workers’ right to organize. Equally so, federal law should not deprive states of the ability to protect their residents from identity theft.

Though this case did not cover stalking, it is not a stretch to see courts using the same logic to preempt states from enforcing local anti-stalking laws against unions.

It is time to close these loopholes and let states protect workers from identity theft and stalking.