A New Framework for Labor Law: Shifting the Paradigm on Workers' Rights

Today we bring you a conversation with Celine McNicholas, the director of labor law and policy at the Economic Policy Institute (EPI). In this interview, McNicholas discusses EPI’s latest report, which provides a blueprint for protecting all workers, whose rights are being attacked at every opportunity.

Sarah Jaffe: You have put out a new report, a new agenda for labor law in the US. Let’s start by talking about the context for this, the state of existing US labor law right now, especially after the Supreme Court’s Janus decision.

Celine McNicholas: This is a really unique moment because for the first time in a long time, you have lots of different folks here in DC and out in the states talking about the need for some sort of labor and employment law reform. There hasn’t been much worker-favored activity in that area in quite some time. I think the bills that have been considered in Congress have been viciously anti-worker the last several Congresses. So the fact that there is some attention being focused on a need for worker-centered labor agenda is really an important place where we are.

Yes, I am talking to you from Madison, Wisconsin, so it is all fresh thinking about the attacks on labor law in states in recent years. Although, we did also just see a big win on that front in Missouri, defeating the “right-to-work” law.

I think that things have gotten so bad that you sort of see policy makers being forced to pay attention to issues that affect working people in a way that they — from both parties — have not had to come to the table and talk about these issues as primary issues of concern in a very long time.

The report has the title, “First Day Fairness.” Talk about what that means.

“First Day Fairness,” when we were talking internally about what reforms we wanted to highlight … the one common thread was that workers really start out in a place where the deck is stacked against them from their first day on the job.

I think that point was made really really clear this Supreme Court term with the Epic Systems case, where you consider that as a condition of employment, workers are being required to sign away rights to a number of workplace protections just in order to get that job.

I think most people in this country have a feeling that the system isn’t working for them and a big part of that is that you start work … in a way that your employer is so incredibly advantaged over you, as the individual worker, in terms of leverage, in terms of — quite frankly — our legal system. We wanted to highlight that point that on the first day, unfortunately, workers are increasingly coming to the job with no power.

Talk us through some of the items on this agenda and how all of this fits together. As you note in the report, a lot of these are not new ideas — things like raising the minimum wage — but trying to put it all together as a comprehensive framework for what labor law should look like now is a little different.

One of the things that I will frame this around … this notion that there is labor law, and then there are fundamental worker’s rights that apply to all working people, whether or not they are members of a union or are an individual worker at a workplace where you don’t have a union, or you are a worker who is not currently covered by labor law protections, which means that you don’t have the right to unionize. Those are domestic workers, folks who are working in people’s homes, caregivers. There are lots of different reforms that are necessary and we try to put these in buckets.

Our first bucket … is that people need the right to be able to organize and have a union in their workplace. That means expanding existing protections such that some of those workers who have traditionally been excluded from labor law protections are now covered. It also means that employers do not get the right to frustrate workers’ ability to come together and demand a union, vote for a union in their workplace. That is the fundamental first tranche of our proposal — that you have got to have meaningful reform around getting people to be able to form a union when a workplace desires to form a union. The first tranche is really strengthening collective bargaining. That is for workers traditionally covered, but also expanding the right to organize.

Then, there is this notion that there are still going to be workers who are not going to be able to access a union. That means that we have got to do more to ensure a basic level of job quality. That there are fundamental fair wages, fair minimum wage, people have a right to overtime protections. Those kinds of things.

Then, in addition, we have got to do something now to combat this expanding employer practice of requiring workers to sign away all of these existing rights as a condition of employment, which I think is going to become something that just continues to grow — a practice that, unfortunately, employers are now going to be considered as almost “negligent” if they don’t require workers to sign away these rights after the Supreme Court ruling. That is another bucket.

Then, the final piece, which applies across the board … we need enforcement of these rights. We need government enforcement. We need folks to be able to come in, investigate, inspect, ensure that our workplaces are safe, ensure we are being paid properly. Without enforcement, none of those rights have any kind of real meaning.

Yes, that is one of the things, in particular, that has just been gutted not necessarily in the law … Theoretically, we still have the [Occupational Safety and Health Administration] (OSHA). But there are no OSHA inspectors, so …

Right. And we consider part of enforcement … to be appropriate penalties…. You could have the absolute best functioning inspectors out there finding violations, and if the law does not allow for a truly prohibitive penalty, then even if you have an employer who is found to be in violation of the law, I think unfortunately it is the case that many employers are just factoring injuries to workers, even death to workers into the cost of doing business, into their bottom line. That is a law that is not working. If the penalty is so low that you would rather just pay that penalty than actually rectify the underlying unsafe work practice, that is a real problem.

You also have within these various layers some rarely-discussed things that are quite important. You mention the right to labor protections for secondary strikes, which goes way back. But also, you talk about non-compete agreements and how workers are increasingly being forced to sign these. It is easy to get headline-level attention for things like a minimum-wage increase, but talk about some of these more granular things that maybe most people in a world with 6 percent private sector union density don’t even know about.

I think one of the things that stands out to me as we were pulling together this report is the massive shift in the law. While you mentioned none of these are new ideas and policy makers and workers’ advocates have long discussed an appropriate joint-employer standard, there has been increased discussion of non-compete agreements and how to best combat those.

But, in terms of, “How can workers get these rights in the real world?” If we had to choose one area, how could we best serve workers? I think one thing that is really clear is because there are so many reforms that are necessary … that would mean that Congress would have to hit the ground running with a Democrat-controlled Congress and just pass one worker rights measure after another.

Or, we could do something meaningful to make workers have real access to unions. They would get many of the same protections via a collective bargaining agreement that would otherwise have to be enacted through law. So, strengthening the right to organize, the right to be a member of a union.

Then, “What can unions do for workers?” And to your point, the secondary strike — reimagining the power of organized labor, to me, is the takeaway from the report. That gets into lots of things that have eroded for organized labor over the last 40-50 years, certainly the right to strike being essential to that right to effectively organize. You don’t have much leverage if, at the end of the day, an employer can just replace you, which is the current state of the law for workers who decide to engage in a strike because they have come to their wits’ end, they are not getting the wage increase, they are working in an unsafe condition, they are being treated disrespectfully. If you take away workers’ ability to advocate for themselves and those processes, then essentially you take away the benefit of being in a bargaining unit.

I want to talk specifically about the joint-employer problem because it is such a big one these days. When we are talking about big companies like Walmart and Amazon, we are also talking about layers of people who work for them, but don’t really work for them. You have some proposals in this that would tackle this question of what people call the “fissured” workplace.

This goes back to the bargaining table. I know I sound like a broken record to keep bringing everything back to bargaining, but without being able to bring an employer to the bargaining table or be able to name your employer in a wage claim if you are not being paid properly, then — again — all of the workplace rights — the way our current system is structured is that employers owe certain duties under the law to their workers. One of those is obviously to pay them fairly. But, if you don’t know who your employer of record is because of the fissuring of the workplace, the sort of creative subcontracting that allows employers to evade liability for any host of violation also enables them to avoid the bargaining table.

If you can’t bring the right employer to the bargaining table, then you are not going to be able to negotiate a collective bargaining agreement, either. Having a standard that captures everybody who exerts control over the terms and conditions of employment for a worker, that is going to have some responsibility as an employer. You are not going to be able to subcontract away the essential responsibilities of an employer. That is so important under a system that puts so much into that clear employment relationship in terms of our rights as workers. If we can’t identify our employer, we are left with no one left to point to as responsible for a violation of the law.

That is one of the main elements of this proposal … making sure that folks know on their first day who their employer is. Do they have more than one employer? How do you know who to bring to the table if you are going to bargain and how do you know who to bring to the courtroom if your rights are violated?

In the report, you note that some of these proposals are already in bills before Congress. What are the chances of any of these particular ones — or any of them look like they would move very quickly, say, if the Democrats took back Congress … and the presidency, because it is not like Trump is going to sign anything? Then, what would it take to link them together to make them a big labor bill of rights kind of thing? What would that look like?

I think it is really encouraging that so many of these reforms already live in existing, already introduced legislation in Congress. None of them get a great deal of attention, but in particular, the Workers’ Freedom to Negotiate Act, which was introduced this Congress … goes to the heart of many of the reforms aimed at ensuring that folks can unionize. That is the piece of legislation that includes some of the re-imagined right to strike reforms, as well.

In terms of how likely it is that any of this passes, I think that is really on all of us. We have a responsibility as advocates to get in there and make sure that people are … aware of these bills, and also that there is a grassroots movement.

I think mentioning that you are in Wisconsin, there is a great demonstration in what workers can demand from elected officials. We absolutely have to greet this new Congress with the clear understanding, if it is Democratic-controlled, that these issues are top-tier issues, that we demand that they be considered in the first hundred days. The fact that we haven’t had a minimum wage increase in so long at this point — we are looking at over a decade of failure to pass legislation — that is shared by both parties. I think in terms of the likelihood of all of these measures, any of these measures, passing is really incumbent upon all of us to speak up and demand that our elected officials don’t just treat these things as campaign slogans, but that we really demand action on these critical reforms that, quite frankly, affect all of us regardless of party affiliation, regardless of many of the other issues that may divide us.

I think a fair economy and how we are all treated at work, how we are all paid and economic justice, to me, is such a unifying issue that I really hold out hope that it will be a top-tier issue in a Democratic-controlled Congress. Let Trump veto a minimum wage increase. Let Trump veto a bill that would actually give people in this country a meaningful path to have a union in their workplace. I remain optimistic that Democrats will recognize that these issues simply cannot be ignored going forward. That said, we have to demand it. It is not enough to just be against the status quo. We really need meaningful reform in this area.

One of the things we can take away from what just happened in Missouri is that even though Democrats in states like that have not prioritized workers’ rights issues, when they put “right to work” on the ballot, two-thirds of the state voted against it. These are winning issues and we see that over and over again when minimum wage increases are on the ballot; they won even in states where, in 2016, Trump won.

It seems almost forgotten now because his record has been so appallingly opposite to his campaign promises, but it should be instructive that that is exactly what Trump ran on … this notion that the American worker is being disadvantaged, ill-served by the existing system. That was a winning message. In an era where who knows what is true, that is true for the vast majority of people in this country.

I think there is so much coverage of the economic imbalance. You see that in the CEO pay statistics that a colleague of mine that put out recently, as well, which just shows that this system is serving those at the top incredibly well and the rest of us, it is absolutely misserving, exploiting. I think most people feel that, understand that, know that, because at the end of the day, your own economy, your own bank account demonstrates that to most folks. They are not able to afford a home. They are one illness away from having bankruptcy…. They have either experienced it, their neighbors have experienced it, a family member has experienced that.

We also know how desperate we feel for our job, which is something that is really different from a few generations ago, where people felt that they had some leverage, and in this economy, that is no longer true. I think it has just become what we all expect. But, to that point, that is why we have to demand more from our elected officials. My hope would be that we convince Democrats to run and deliver on this type of platform because it is so critically important to rebalancing our economy and our system of work.

How can people read the report and keep up with you?

The report is going to be on our website which is EPI.org and I really encourage people to sign up for our alerts, as well. There is plenty of helpful information on how to be supportive of some of the bills that we talked about and how to get involved with pestering their elected officials and also those folks who are running to represent them on these measures.

This interview has been lightly edited for clarity and length.

Interviews for Resistance is a project of Sarah Jaffe, with assistance from Laura Feuillebois and support from the Nation Institute. It is also available as a podcast on iTunes. Not to be reprinted without permission.