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A Gut Renovation for U.S. Labor Law

1.23.20

Chart showing a scale balancing workers on one side against a big bag of money on the other

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American labor law is broken, argues a report released today by Clean Slate for Worker Power, a project of Harvard Law School’s Labor and Worklife Program. So, the report urges, the nation’s labor laws need to be fundamentally rewritten to make it easier for workers to organize, to have a voice in corporate decisions that affect them, and to participate in democracy—all essential to address larger concerns about economic and political equity in a divided, polarized society. At bottom, the project aims “to shift power from corporations to workers,” said Sharon Block, executive director of the Labor and Worklife Program, at the project’s launch Thursday morning. The ambitious, 100-plus page report lays out an agenda for a revitalized, robust labor law for the twenty-first century. 

The premise of the project, the report explains, is that the United States faces two linked crises—economic and political—and that neither can be addressed without a strong labor movement. The question animating the report’s proposals was: “What would labor law look like if, starting from a clean slate, it was designed to empower working people to build an equitable economy and politics?” 

“The richest 20 people in this country have more wealth than half the nation put together,” said Kestnbaum professor of labor and industry Benjamin Sachs, the co-leader with Block of Clean Slate. “It would take an Amazon worker about 4 million years working full-time to earn what Jeff Bezos now has. This vast disparity in material wealth means that millions of American families struggle just to barely get by. 

“This economic inequality translates seamlessly into political inequality,” he continued. “Put simply, when it comes to policy, our government pays no attention to what the poor and middle class want, listening only to the wealthiest….Today in America, the majority does not rule. 

“This project is not based on nostalgia for the past,” Sachs added. Even though the labor movement was more powerful in the twentieth century than it is today, especially during the decades after the National Labor Relations Act (NLRA) became law in 1935, he and Block stressed that the labor laws of yesterday were designed to exclude vast swaths of the workforce. The NLRA entirely excludes domestic and agricultural workers, for example—two sectors then dominated by women, people of color, and immigrants. “These carveouts were written into the law to ensure that white, male plantation owners could maintain power over Black workers,” the report states. “Ultimately, it was Southern senators who developed the definition of ‘employee’ for the NLRA, which made these exclusions a condition for passage of the legislation.” 

Before anything else, Sachs said, labor law needs to be expanded to include everyone currently written out of it, including farm and domestic workers, as well as workers who are undocumented, disabled, or incarcerated. The report also stresses employers’ widespread use of independent contractors to skirt labor laws. It recommends making it much harder to classify workers as independent contractors, and giving collective bargaining rights to some contractors. 

“A true independent contractor is someone who runs her own separate business, sets her own rates, builds a customer base, and takes on the risk of business failure,” said Sarita Gupta of the Ford Foundation, one of Clean Slate’s funders. But corporations have applied independent- contractor status to millions of workers who don’t meet this definition, like ride-share app drivers, janitors, nannies, construction workers, and others. The report advocates applying the “ABC test” for independent-contractor status—already in place in California and being considered in other states—which would assume that all workers are employees unless the company can prove otherwise. 

Workplace Democracy

“For too long,” the report argues, “securing power and voice at work has required workers to fight herculean battles against nearly impossible odds.” It aims instead to make democracy in the workplace “a right, not a fight,” by making it significantly easier to organize traditional unions or other forms of representation, like works councils or workplace monitors. It recommends a host of reforms including:

  • significantly increasing penalties on employers that try to intervene in organizing;
  • banning employers from hiring permanent replacements for striking workers;
  • making strikers eligible for unemployment insurance; and
  • creating “digital picket lines” that would tell online shoppers if they’re buying from a company whose workers are on strike.

Clean Slate also recommends making it easier for workers to vote and participate in democracy by mandating nationwide same-day voter registration, early voting, and voting by mail, as well as giving workers paid time off to vote. It would also prevent employers from forcing workers to engage in political activity, a practice, the report notes, that is becoming more common.

Workers should have a voice not just in the issues that unions traditionally bargain over, like wages and benefits, the report argues, but also in larger corporate decisions that affect them. Accordingly, it proposes giving workers 40 percent representation on corporate boards, and requiring a board supermajority to approve decisions that most affect employees’ lives. This “co-determination” structure, as Ruben Garcia, professor of law at the University of Nevada at Las Vegas put it, would “change the presumption of shareholder primacy…toward a presumption toward workers themselves.” 

Improving Bargaining

Another major reform advocated by Clean Slate is a system of sectoral bargaining, similar to what exists in many European countries: workers would bargain not just with their employers, but also at the industry level. Such systems provide collective bargaining to more workers, and help remove the incentive for individual employers to fight unionization if they think it will put them at a competitive disadvantage relative to other companies in their sector. It also makes it easier for people like nannies and freelancers, who aren’t employed in a traditional workplace, to organize and bargain collectively. 

Under Clean Slate’s proposal, sectoral bargaining would be triggered once 5,000 workers, or 10 percent of the workers in an industry, belong to a union or other worker organization. Such a system would address the proliferation of “fissured” workplaces in the economy, where employers farm out their work to independent contractors to avoid labor laws, said Larry Cohen, the labor chair for Bernie Sanders’s organization Our Revolution. 

Work on the Clean Slate report began after Block, formerly head of the policy office at the U.S. Department of Labor during the Obama administration, arrived at Harvard Law School in 2016. She felt that real progress had been made on labor issues during her service in Washington, she said, but the election of Donald Trump meant that “we ended up with a president and an administration that does not care about the rights and dignity of workers.

“Rather than fold, give up the fight, or lose focus,” she continued, “I and others…gained clarity. We realized that there was still a hunger among many to make sure that labor law works in the way intended, to the benefit of the people doing the work.” The resulting report engaged ideas from more than 70 activists, workers, union leaders, professors, and others. It sets a wide-ranging agenda for American society, aiming to correct the imbalance of power between the wealthy and the broader public that is felt everywhere from wage stagnation to the skyrocketing cost of medical care. 

Along with the report, Clean Slate for Worker Power has launched a grant program that will support projects that pilot, implement, or advance its recommendations, for up to $50,000 each. 

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Photograph by Harvard Magazine/JC

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