Category Archives: Future of Unions

The Resurrection of American Labor

Source: Janet Paskin, Bloomberg Businessweek, February 7, 2019

Traditional unions may be stymied, but workers are finding new ways to organize….

According to the official records, U.S. workers went on strike seven times during 2017. That’s a particular nadir in the long decline of organized labor: the second-fewest work stoppages recorded by the U.S. Bureau of Labor Statistics since the agency started keeping track in the 1940s.

There was little reason to believe 2018 would be different, especially with the U.S. Supreme Court, in two decisions, making it harder for public employees unions to fund themselves and restricting workers’ rights to bring class actions. The power of employers appeared to be almost limitless. The unions were, if not busted, then certainly on the verge.

Aggrieved workers, however, took matters into their own hands, using social media and other tech tools to enhance their campaigns. From industry walkouts to wildcat teachers’ strikes, they made very public demands of their employers. The official number of major work stoppages recorded by the BLS in 2018 nearly tripled, to 20. Off the picket line, workers also won a wide range of concessions. Facing employee pressure, Google and McKinsey & Co. dropped contracts for government work employees found objectionable; thousands of dismissed Toys “R” Us workers got a severance fund; and Starbucks Corp. expanded parental and sick leave policies.

In many cases, workers and their advocates bypassed their employers entirely…..

Unions for Workers in the Gig Economy: Time for a New Labor Movement

Source: William J. Tronsor, Labor Law Journal, Vol. 69 no. 4, Winter 2018
(subscription required)

From the abstract:
The gig economy has fundamentally changed the employer-employee relationship throughout America. In the past, employers relied on an industrial model for production, depending on long-term employees to ensure quality and productivity. The traditional employer-employee relationship was the norm and America’s labor laws were built around that relationship. Today, in order to hinder collective action and skirt America’s labor laws, employers are classifying their workforce as independent contractors. Whether these companies are accurately classifying their workforce as independent contractors requires an extremely fact-based legal assessment, but the ambiguity in the law has made it advantageous for employers to deliberately misclassify their workers. This has resulted in the rise of the gig economy, led by companies like Uber, TaskRabbit, and Grubhub. The gig economy has created a new class of workers, i.e., gig workers. A class of workers whose numbers are growing every year and workers who find themselves unable to avail themselves of the protections of America’s labor laws. The American workforce has evolved, and America’s labor laws need to evolve to respond to these changed circumstances. This article examines the history of organized labor, the importance of organized labor, and the circumstances that brought about the gig economy in America. The article also proposes new organizing strategies, changes that should be made to the law to ensure that all workers are able to collectively organize and avail themselves of the protections of America’s labor laws, so that the organized labor movement can be brought into the 21st century.

Wisconsin, Conquered

Source: Luke Savage, Jacobin, November 26, 2018

Republicans could not have conquered the labor stronghold of Wisconsin without the complacency of the Democratic Party.

A review of The Fall of Wisconsin: The Conservative Conquest of a Progressive Bastion and the Future of American Politics by Dan Kaufman (W.W. Norton, 2018).

….Its significance as a target of Republican belligerence should therefore not be understated. Indeed, as Kaufman shows, the state became a key battleground during the Tea Party ascendancy and a veritable laboratory for the power of big donors and unrestricted dark money following the Supreme Court’s disastrous Citizens United decision. Using their astroturfed American For Prosperity advocacy fund, Charles and David Koch spent tens of millions on the 2010 elections — the latter making a personal donation of $1 million to the Republican Governors Association. Even more money was poured into subsequent elections, with Walker out-fundraising his Democratic opponent in the 2012 recall contest by a whopping $30 million to $4 million.

Another institutional antagonist is the American Legislative Executive Council (ALEC), a nonprofit charity whose donors include Exxon, Koch Industries, and major pharmaceutical interests. An example of lobbying at its most efficiently dystopian, ALEC assembles conservative ideologues, lawmakers, and corporate interests with the goal of crafting model legislation, targeting unions, environmental laws, public schools, and voting rights, to be imposed on jurisdictions throughout the country. Versions of several laws, including a right-to-work bill with virtually identical language, were successfully implemented during Walker’s control of the statehouse.

Wisconsin’s story is therefore an alarming illustration of the Republican Party’s long-term strategy at work and what its vast political and financial infrastructure is ultimately capable of even in the face of strong opposition. Its goal, as Kaufman’s book makes clear, is not just the passage of specific pieces of conservative legislation and laws that favor corporate interests, but the destruction of all obstacles to permanent Republican control of the legislative process and the reconfiguring of politics with the aim of consolidating those interests in perpetuity…..

Financialization and the Decline of Organized Labor: A Study of 18 Advanced Capitalist Countries, 1970–2012

Source: Christopher Kollmeyer; John Peters, Social Forces, Advance Access, Published: November 14, 2018
(subscription required)

From the abstract:
Is financialization contributing to the slow decline of union density that is occurring across most advanced capitalist countries? Combining insights from literatures on financialization, corporate governance, and comparative political economy, we argue that the growing dominance of finance within advanced capitalism weakens unions through several channels, and plays an important but underappreciated role in the deunionization of national workforces. Using data from 18 advanced capitalist countries over several decades, this assertion is tested against the literature’s existing explanations for declining union density. Results from panel regression models suggest that financialization is an important cause of union decline, but that its particular effects vary between different types of advanced capitalism. The study concludes by arguing that financialization creates new interconnections between firms and finance capital, resulting in business practices that ultimately put downward pressure on union densities across advanced capitalist countries.

Labor Law Illiteracy: Epic Systems Corp. v. Lewis and Janus v. AFSCME

Source: Michael J. Yelnosky, Roger Williams University, Legal Studies Paper No. 184, September 4, 2018

From the abstract:
Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.

Life After Janus

Source: Aaron Tang, Columbia Law Review, Forthcoming, Last revised: 18 Aug 2018

From the abstract:
The axe has finally fallen. In Janus v. AFSCME, Council 31, the Supreme Court struck down the major source of financial security enjoyed by public sector unions representing nearly half of the nation’s fifteen million union members. Countless press stories, law review articles, and amicus briefs have criticized and defended this outcome. This Article has a different aim. Rather than re-litigating Janus, the question I ask is instead forward-looking: What’s next? Is there life for public sector unions after Janus? And if so, what might it look like? In engaging these questions, this Article has three goals. First, I want to push back on the narrative that public unions have no choice now but to struggle on within a national right-to-work environment. That is certainly one possibility, but pro-labor states have available a range of legislative responses that may soften Janus’s blow or even negate it altogether. One response is for pro-labor states to authorize public employers to reimburse unions for their bargaining-related costs directly. The standard objection is that direct government funding will undercut unions’ ability to advocate independently for workers. My second goal is to confront this objection head-on, with an argument that draws on an unlikely source: an analogy between public unions and public defenders. As it turns out, America’s woeful experience with indigent criminal defense teaches some powerful lessons about how not to fund entities whose entire purpose is to contest the government’s narrow self-interest. But it also suggests funding approaches that would raise no independence concerns at all. That leads to my final and most significant objective: to propose model legislation for state lawmakers to implement direct reimbursement of unions. The proposal is revenue neutral for public employers and unions, and it is revenue enhancing for workers in light of nuances in the federal income tax. Readers interested in the nuts and bolts of the proposed legislation may wish to skip the first three parts of this Article (which make the case for why reimbursement is desirable) and start at Part IV on page 43. For convenience, a model bill is included in the appendix.

Compelled Subsidies and the First Amendment

Source: William Baude, Eugene Volokh, Harvard Law Review (2018 Forthcoming), Date Written: July 29, 2018

From the abstract:
Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion. Nobody likes having their money taken, and knowing that it will be spent on causes one opposes seems to add insult to injury. But when is it unconstitutional? For forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one’s First Amendment rights. This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy. In Janus v. AFSCME, a majority of the Court went further, and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining. Such public-sector collective bargaining, the majority held, is itself inherently political. And the government interests in mandating such payments don’t suffice to justify such requirements. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these two points. But we think the majority — and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar — erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of — likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong. In Part III, we turn from evaluating the decision to anticipating its consequences. We doubt Janus will have significant effects on government speech rights (Part III.A), but it will likely bar the funding of other forms of private speech. Janus will likely extend to a prohibition on state bar dues, at least so long as the bar is seen as sufficiently removed from other government agencies (Part III.B). It might also include constraints on public university student governments’ use of student activity fees, though universities can create accounting workarounds that will practically allow such student activity funding to continue (Part III.C). Finally, and perhaps most consequentially, Janus may lead to massive liability for unions that have collected the agency fees that are now viewed as unconstitutional. (Part III.D). Though the fees were seen as valid when collected, the Supreme Court’s precedents say that constitutional reversals in civil cases are generally retroactive, so everyone in Janus’s shoes can get agency fee refunds just as Janus himself could (at least so long as the statute of limitations has not lapsed). Moreover, private organizations such as unions are generally not entitled to qualified immunity or similar defenses. While the unions do have some possible arguments to mitigate the damages or try to claim a special form of good faith, those defenses are speculative, and cannot be counted on.

How to Undo Janus: A User-Friendly Guide

Source: Aaron Tang, University of California, Davis – School of Law, Date Written: June 27, 2018

From the abstract:
This short white paper explains how progressive states can undo the disruptive effect of the Supreme Court’s decision invalidating public union fair share fees in Janus v. AFSCME, Council 31.

Put succinctly, lawmakers can amend state law to permit government employers to reimburse unions for their bargaining-related expenses directly. Such an amendment would be revenue neutral for government employers and unions, and it would result in a net increase in take home pay for public sector workers (on the order of $200 per year for an unmarried worker making $50,000).

The paper describes how this approach would work, considers major objections, and proposes model legislation for lawmakers to consider. A more detailed discussion of all of the issues implicated by this proposal can be found in a full-length companion article entitled, Life After Janus.