A State Legislative Strategy for Labor
Conservative groups have long used state-level legal reform efforts far more deftly than liberal groups. From abortion rights to voting rights, conservatives have successfully promoted state laws that have the effect of diminishing long-held rights and changing public opinion. Labor rights occupy an area where state level attacks have proven particularly successful. Since the passage of the Taft-Hartley Act in 1947, almost half the states have adopted so-called “right to work” laws that hurt solidarity and make labor organizing extremely difficult. Furthermore, the past few years have seen states with Republican controlled legislatures and governorships push through new anti-labor public sector laws that strip the right to collectively bargain. In addition to diminishing workers’ rights, these state-level legislative pushes have also helped to change public opinion against unions and public sector employees. On the state level, more so than other arenas, labor has consistently found itself on the defensive against increased intrusions on labor rights.
The courts’ imputing of broad federal preemption into the National Labor Relations Act (NLRA) has generally discouraged labor from pushing state-level labor reform efforts. Labor law scholars have long argued that the courts have read overly broad preemption into the Act, and that the states should have some room to maneuver and innovate in order to strike the balance that the NLRA articulated. However, the courts have been resistant to these arguments, and it is unlikely that labor law preemption will be reconsidered any time soon.
Without changing the scope of preemption, labor can still advance state-level legal reforms that protect large categories of workers excluded by the NLRA, such as domestic workers, farmworkers, supervisors, and independent contractors. We have been promoting the idea of amending the Civil Rights Act to protect the right to organize, and we believe that state-level versions of such reforms would not only benefit millions of workers, but would also help set the stage for national labor law reform. Most states currently have laws that mirror the protections of the Civil Rights Act, but go further in the classifications they protect. These include laws prohibiting employment discrimination based upon prior criminal conviction, sexual orientation, “use or nonuse of lawful products off the employer’s premises during nonworking hours,” “honorably discharged veteran or military status,” on the basis of an individual’s unemployment, on the basis of one’s homelessness, and on the basis of an employee declining to attend or participate in employer-sponsored meeting about religious or political matters.
Conservatives have wisely targeted those states where they control the legislative and executive branches, and their legislation has a high degree of passage. Liberals should do likewise. Currently, there are 13 states where Democrats hold the governorship and control the legislature. Our proposal on the state level would encourage states such as California, Massachusetts, or Minnesota that have large Democratic majorities and strong participation of labor in the political process, to pass legislation making labor organizing a civil right.
As a practical matter, such legislation would grant workers a private right of action in which to remedy unlawful firings, demotions, threats, or other adverse employment action based on their choosing to join or organize a labor organization. Instead of having to proceed through the Labor Board process which, in the best of times, offers weak remedies for aggrieved workers and little deterrent for anti-union employers, employees and unions could bring their claims directly into court. (At the time of writing, Republicans in the Senate are filibustering President Obama’s five nominees to the Board, the D.C. Circuit decision finding Obama’s recess appointments unconstitutional stands, and the term of the sole confirmed member of the Board is set to expire in August. Therefore it is possible that the Labor Board may simply go dark at the end of summer, and workers will have no venue to vindicate their rights.)
Under civil rights legislation, the employees could not only recover real remedies that actually serve the purposes of making them whole, but they would also be entitled to seek punitive damages against egregious employer conduct, and to have the matter heard by a jury of their peers. Furthermore, employees could recover attorneys’ fees, which will not only help to fund labor, but will also help build the private bar of union-side labor attorneys. As in other areas of law, the increased participation by the private bar can lead to more innovative approaches to labor litigation and an increase in judges that have experience litigating labor cases. Under the proposed legislation, workers and unions will also be able to receive the benefits of the pre-trial process that is available to every other litigant. This includes liberal pretrial discovery, where workers and unions can depose individuals at all levels of the company, review the books of the employer, subpoena emails concerning anti-union activities, and generally get an inside view of the company that is currently not available through the NLRB process. And, as anyone who has been involved in litigation knows, pretrial discovery is a disruptive process, which would further serve as a deterrent to employers considering violating the labor rights of their workers.
In addition to the tangible benefits of trial that would flow from making labor organizing a civil right, the campaign for passage of such state legislation carries the possibility of rallying a broad coalition. Civil rights carry a unique legitimacy in America, and a campaign to make labor organizing a civil right would help strengthen the bonds between labor and its traditional allies. Furthermore, as opposed to the esoteric confines of labor law, Americans have an intrinsic understanding of civil rights, which would make the message far harder to muddle by labor’s opponents.
Though any labor law reform effort may seem impossible in the current political climate, a targeted and well-executed labor law reform campaign in several states can be successful. Labor is currently in a bizarre predicament. The percentage of union members is currently at a 97-year low, however membership in unions stands at over 14 million, making it as a whole one of the larger membership organizations in the nation. By contrast, the mighty National Rifle Association has between two and four million members. Furthermore, although membership has been precipitously declining for decades and there has been increased state-level anti-union legislation, the percentage of Americans who would vote for a union has generally been on the rise. Almost every Gallup poll since 1936 (a year after the passage of the Wagner Act) shows that a majority of Americans have approved of labor unions, but those figures have generally been in decline. However, any group that suffers constant attacks in the public sphere and the workplace will find its membership decline. Workers face too many obstacles in asserting their rights to organize or join a union. In an unemployment crisis that has no end in sight, workers cannot be expected to risk everything in order to gain a voice in the workplace. The states offer a venue for labor to reassert itself and push legislation that protects the civil right of workers to organize. A state by state approach that would give excluded workers civil rights protections for organizing would also build momentum and lay the predicate for federal legislation down the line.
Richard Kahlenberg is a senior fellow at The Century Foundation. Moshe Marvit is an attorney and fellow at The Century Foundation. They recently co-authored the book, “Why Labor Organizing Should be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice”