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Gupta, Lerner, and McCartin are right to bemoan “the grim turn of labor history in the United States” over the last decades, while celebrating the new “creative energy” in the labor movement and on the left.
They praise the legislative initiatives to reform labor law advanced by candidates like Elizabeth Warren and Bernie Sanders. At the same time they emphasize that “legislative initiatives are insufficient” and that “laws will not save us.” In their view, three elements are essential to labor’s comeback: (1) giving community members and stakeholders a place at the bargaining table; (2) adopting a stance of greater militancy, transparency, and political action in bargaining; and (3) positioning contract campaigns as steps in a long-term strategy of worker empowerment, rather than as victories in and of themselves. Gupta, Lerner, and McCartin hope that, in the years to come, we will see broader forms of organization, social bargaining, and democratic experimentation by the labor movement.
I agree with much of their descriptive account and with their aspirations for the labor movement and for democracy in the United States. But the dichotomy their essay sets up between law reform and workers’ struggles needs unpacking.
Law reform need not be viewed as distinct from organizing and social movement building. The challenge is at once to develop a law reform project that builds power for working people and to root that reform in the most ambitious efforts of workers themselves—a legal vision that emerges from the movement’s own aspirations for a more democratic and equitable society. In fact, that more fundamental law reform project is already underway in the very movements Gupta, Lerner, and McCartin celebrate.
There can be no doubt: law reform cannot alone save the labor movement. Even the best workplace laws produce few rights at work without strong democratic worker organizations to defend and enforce them. Moreover, history makes clear that labor law reform is unattainable without significant organizing and social movement building. The reforms of the 1930s, which gave workers the legal rights to organize, bargain, and strike, came about only after extraordinary social mobilization.
Conversely, recent years have illustrated that without such widespread social mobilization, labor law reform fails, even under Democratic administrations. Conservatives and organized business understand all too well that a weak labor movement redounds to conservatives’ long-term political interests. As a result, they have successfully mobilized to block any pro-labor reforms at the federal level—while working to weaken unions through administrative action, litigation, and the enactment of state anti-worker legislation. In the last few years, for example, conservatives have sought to narrow the definitions of “employer” and “employee” in order to shield major companies from liability and to exclude millions of workers from labor law’s protection; they have responded to union-led minimum wage campaigns by preempting cities’ ability to set minimum wages; and they have passed state legislation limiting collective bargaining rights for public sector workers.
The same history that demonstrates the importance of organizing and social movement building also shows that engagement with law cannot be avoided. Law shapes workers’ capacity to organize, bargain, and protest. The current legal regime constrains that capacity in numerous ways—for example, by excluding independent contractors, domestic, and agricultural workers from the law’s protection; by prohibiting secondary boycotts and mass pickets, thereby disabling class-wide protest; and by protecting employers’ authority to permanently replace striking workers and to shut down enterprises in response to organizing efforts.
The Supreme Court’s recent opinions further underline the extent to which law and courts can undermine workers’ collective capacity. Consider Janus v. AFSCME (2018), which imposed as a matter of constitutional law an “open shop” or “right to work” regime throughout the public sector. Or Epic Systems v. Lewis (2018), which granted employers the authority to insist that workers sign arbitration agreements waiving the right to engage in concerted legal activity, despite the National Labor Relations Act’s protection of such activity.
The tendency to conceive of the law as separate and distinct from organizing is thus understandable. For one thing, the law now acts more as an obstacle to labor rights than a tool for achieving them. And what’s more, law is too often the province of elites and experts. In fact, some progressives have called for reforms that would increase ability of lawyers to litigate on behalf of workers without necessarily increasing worker power. Skeptics of law reform do have reason to worry about experts sapping the democratic energy of workers.
But law reform need not work to strengthen the hand of lawyers or to distract from movement building. “Democrats need to think about labor law reform not just as yet another area of public policy,” as the political scientist Alexander Hertel-Fernandez has argued, “but rather as conservatives do: as a set of reforms that can build durable political power that enables further policy wins on other issues.”
Law reform also need not be the brainchild of experts or technocrats. Rather, it ought to be rooted in the demands of worker movements themselves. Indeed, the very movements that Gupta, Lerner, and McCartin celebrate for their new approach to bargaining are also offering an aspirational vision for labor law. That vision rejects much of the system of labor relations that has been in place since the New Deal, insofar as it has excluded numerous workers from coverage, narrowly channeled bargaining to the worksite level, and significantly constrained workers’ ability to engage in broad collective action to advance the interests of their communities.
For example, the Fight for $15 campaign does not seek to win union elections at a handful of worksites or to pursue incremental changes through private collective bargaining. Nor does it seek to proceed only through the National Labor Relation Board’s administrative system with the government serving as neutral arbiter. Instead, the campaign demands significant changes for all workers throughout low-wage industries. It makes demands both of employers and of elected representatives, calling on the government to serve as a defender of all workers’ interests. And ultimately, it seeks not just wage increases and union rights but dignity and respect for all workers.
So too, the recent teacher strikes. Teachers from West Virginia to Oklahoma rejected the reigning labor law that denies public sector workers the right to bargain collectively and to strike. They rejected the dominant paradigm of enterprise bargaining, instead organizing on a sectoral basis throughout their states. And they defied limits on subjects of bargaining, negotiating not only wage increases and benefit improvements but improvements in education.
As these examples illustrate, implicit in the efforts of teachers, fast food workers, domestic workers and other new movements that Gupta, Lerner, and McCartin discuss is not only a vision for labor law reform but also a nascent vision for constitutional reform—a reconceptualization of the fundamental rights to which all people are or should be entitled. As such, today’s movements are harkening back to earlier efforts of the labor movement and its constitutional vision of freedom.
In short, there is no need to choose between prioritizing organizing and prioritizing law reform. They are both necessary, even if neither is sufficient on its own. Success will depend on executing a law reform project that is focused on building durable power for working people and grounded in their struggles to construct a fundamentally more democratic and equitable society.
Kate Andrias is Professor of Law at Columbia Law School. She teaches and writes in the fields of constitutional law, labor law, and administrative law. She previously served as special assistant and associate counsel to the President of the United States, and as chief of staff of the White House Counsel's Office.
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