American workers have had the right to unionize since 1935, when Franklin Delano Roosevelt was in his first term as president and the Great Depression was ravaging the economy.
But the parameters haven’t changed much in 85 years.
Not as the treatment of women and people of color became more equitable. Not as businesses employed more independent contractors who weren’t protected by labor laws. And not as the gulf between the haves and have-nots expanded.
On Thursday, two Harvard Law School faculty members unveiled a sweeping proposal to rewrite US labor law, aimed not at updating what’s on the books but at starting over.
“Clean Slate For Worker Power: Building a Just Economy and Democracy” calls for upending the current system by extending union coverage to agricultural, domestic, undocumented, and incarcerated workers, as well as to lower-level managers, graduate students, and independent contractors — and adopting more stringent tests to determine if a contractor should be considered an employee.
It would allow for bargaining by sector instead of just by individual employer; permit workers to strike against parent companies, not just their immediate employer; and introduce new forms of representation, including workplace monitors elected by employees to ensure compliance with labor laws and works councils to share information among employees and management.
Employers would no longer be allowed to require workers to listen to anti-union pitches or permanently replace striking workers. And management would have to give union organizers access to workplaces and e-mail systems, if enough workers support the effort to unionize — instead of conducting campaigns off-site, as they must do now. They’d also have to place strike notices on their websites as a kind of “digital picket line.” Workers could bargain over a wider range of issues, such as an employer’s environmental impact, and be allowed to select company board members.
So-called right-to-work laws, which allow workers to opt out of paying fees to unions that represent them, and forced-arbitration agreements, which prevent workers from suing employers, would be banned. And penalties for employers that interfere in union organizing campaigns would be increased.
“Clean Slate is our vision for what labor law would look like if it were actually designed to enable workers to build an equitable economy,” said Benjamin Sachs, a coauthor of the report. “It’s not a project designed to garner bipartisan support. It’s not a project designed to get the maximum amount of business endorsement.”
Instead, the intent is to lay out a concrete plan to strengthen workers and, ideally, inspire them to take up the cause and put pressure on politicians to make it a reality. The goal is for Congress to adopt their recommendations and replace the existing system of labor law, an aspiration the authors realize is a formidable one, especially in the current political climate.
Some of the recommendations would benefit employers, Sachs noted.
Sectoral bargaining, for instance, which covers all workers in a particular labor market, would put employers on an equal footing, because their workers would be covered by the same terms. Works councils have boosted efficiency in other countries and could do the same here, he said.
The project is not just about unions, said coauthor Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, who served in the US Labor Department under President Obama. It’s also intended to reform democracy, including proposals to promote workers’ civic engagement by mandating same-day voter registration and granting paid time off to vote and to attend meetings.
“These are the kind of changes that will really make a difference in [workers’] lives,” she said.
The pushback from employers and conservative groups is sure to be strong. Allowing unions to bargain by sector, for instance, as they do in other countries and in a few US industries, is “an incredibly scary idea,” said F. Vincent Vernuccio, senior fellow at the right-leaning Mackinac Center for Public Policy in Michigan.
“Essentially, you’re talking about nationalizing industries so unions can more easily organize them,” he said. “It is, I think, a threat for both workers and the economy at large. . . . America is built on competition and being able to start a business and provide a better service than your competitor.”
Block and Sachs spent 18 months consulting with more than 70 economists, union leaders, sociologists, workers, advocates, and labor law professors to come up with the dozens of recommendations in the 125-page report.
Addressing the historic inequities of the labor movement was a priority.
The National Labor Relations Act, part of President Roosevelt’s New Deal, purposely excluded domestic and agricultural work, where most blacks were employed at the time, in order to secure the votes of Southern politicians who wanted to maintain racial segregation, the report says.
Today, 95 percent of domestic workers in the United States are women, foreign-born, or people of color, according to recent research; nearly three-quarters of agricultural workers are immigrants, industry data show.
Conversely, unions became widespread in industries dominated by white male workers, such as auto and steel, boosting wages and pensions — and widening racial and gender inequality.
“It is a shameful part of labor law history,” Block said, noting that the National Labor Relations Act has a “cloud” over it because of the racism and sexism that’s baked in.
Harvard’s Labor and Worklife Program, which both Sachs and Block are now part of, has influenced policy in the past. Its 2004 report on worker misclassification in the construction industry led to a uniform, three-prong definition of what constitutes an employee under Massachusetts law, which spread to other states, including California, which recently adopted the AB5 statute, aimed at the gig economy.
Momentum is growing to empower workers as income inequality grows. While the share of US workers in a union continues to decline — just over 10 percent were organized last year, according to the Bureau of Labor Statistics, down from 20 percent in 1983 — support for organized labor is at a nearly 50-year high.
In 2018, nearly 500,000 people were involved in work stoppages, the most since 1986. Teachers across the country held strikes to demand greater investment in schools, and fast-food workers led the charge for a $15 minimum wage — a once pie-in-the-sky goal that has been adopted by seven states, including Massachusetts.
Nonunion workers have also been standing up to their employers, including Google and Wayfair employees who staged walkouts to protest their companies’ actions about, respectively, sexual harassment and providing furniture to detention centers on the US-Mexico border.
A bill under consideration by Congress — reported to the House in December — would strengthen workers’ ability to organize.
Block and Sachs have presented their plan to a number of politicians and Democratic presidential nominees, some of whom have been pushing for labor law changes such as sectoral bargaining — a level of support for unions unheard of in previous political campaigns, observers say.
Representative Joseph P. Kennedy III said he plans to discuss the proposal with his colleagues in the coming months.
“American workers have been sidelined and forgotten by our current economic system for decades,” he said in a statement. “The substantive reform of our nation’s labor laws that this moment demands will force a long overdue reckoning with the economic policies and priorities in this country.”
Despite the growing economy, most workers aren’t benefiting, and the decline of unionization is a big part of the problem, said Judy Conti, government affairs director at the left-leaning National Employment Law Project. (Several of Conti’s colleagues contributed to the Clean Slate project).
Much like the Fight for $15, she said, the Harvard proposal has big, bold ideas that could invigorate workers to push for change and then “trickle up” to politicians who would introduce bills based on it.
“The real potency is going to be how this inspires organizers, advocates, and workers across the country,” Conti said. “The best way to effect real transformative change is from the grass roots up.”