Labor law reform is having a renaissance, and not a minute too late—union density has been at catastrophically low levels for years now, and it ticked down again last year. The consequences of this multi-decade slide include increased income inequality, decreased worker voice and power, and a diminished democracy in which elected officials feel free to ignore workers’ needs. On the other hand, workers’ approval of unions has been trending upwards for the last decade, and large numbers of workers report that they would like to be part of a union.
The silver lining is that nearly all congressional Democrats, as well as the leading Democratic contenders for the presidency, seem to be committed to aggressive law reform to guarantee more workers a collective voice at work. For starters, the House of Representatives just passed the Protecting the Right to Organize (PRO) Act—a bill that, if enacted, would be the most ambitious pro-union labor law reform since the National Labor Relations Act itself. Perhaps even more remarkably, most leading Democratic presidential candidates have endorsed the PRO Act and then sought to distinguish themselves by proposing an array of additional labor law reforms. Senators Elizabeth Warren and Bernie Sanders have each endorsed “sectoral bargaining,” which would allow workers in the same industry negotiate with their employers as a group. They also propose giving workers a percentage of seats on the boards of large corporations, known as “co-determination.”
Warren and Sanders have the most ambitious plans of the 2020 contenders, but the more centrist candidates have also pledged to prioritize labor law reform. For example, both Joe Biden and Pete Buttigieg have proposed significantly increasing consequences for employers who violate labor law, with Biden proposing criminal penalties; Buttigieg also favors allowing unionized employees within the same industry to demand bargaining on a multi-employer basis. Senator Amy Klobuchar has said she would ensure that unions are not regulated in ways that hamstring organizing efforts. And even Mike Bloomberg—a billionaire who had a contentious relationship with labor unions and fought a prevailing wage law while he was mayor of New York City—now voices support for sectoral bargaining in some industries.
Looking across these proposals, it’s evident that policymakers and politicians are hungry for innovative ideas that would enhance worker power. This is where the newly released Clean Slate for Worker Power comes in. Clean Slate is an ambitious plan for systemic labor law reform. It is the result of eighteen months of work by dozens of labor leaders, activists, and academics, led by former National Labor Relations Board (NLRB) member and Department of Labor (DOL) alumna Sharon Block and Harvard Law School professor Ben Sachs. (Full disclosure: I co-chaired a Clean Slate working group.) In what follows, I will describe just a handful of the novel ideas found in Clean Slate’s extensive suite of recommendations, and point out many of the ways that they consolidate and expand on the PRO Act’s gains.
The first thing to know about Clean Slate is that its aims have been lofty from the start. It starts with an equity lens, centering workers who face systemic racism, sexism, and other forms of bias, and aims to construct a renewed labor law to help all workers build and exercise power. “How could a new labor law facilitate worker power?” is a different question than “what’s wrong with American labor law today?” Both are important—but the former begets a more ambitious answer.
“How could a new labor law facilitate worker power?” is a different question than “what’s wrong with American labor law today?” Both are important—but the former begets a more ambitious answer.
To see the difference, consider the following example. The PRO Act would fix a longstanding problem with labor law by eliminating its restrictions on “secondary” activities, such as strikes and picket lines aimed at influencing the behavior of someone other than the direct employer of the strikers or picketers. That is a worthy goal for reasons I have previously described on this site—in short, secondary strikes and pickets can amplify workers’ power, and they can be especially necessary when an entity other than the primary employer influences pay and working conditions. (Here, think of how a big buyer like Wal-Mart can influence how its suppliers treat their workers by demanding that goods be delivered for a lower price or on a faster schedule.)
The Clean Slate approach builds on the PRO Act’s foundation by asking how labor law can affirmatively help workers who want to exercise power within a supply chain. One answer is this: employers should have a duty to disclose their major contractual relationships, so that workers can unravel who is pulling the strings, and respond accordingly. This example is emblematic of the proposal’s larger approach: fix the mistakes of the past, and also create a system of labor law that allows workers to counterbalance current business practices and economic conditions.
As interpreted today, the National Labor Relations Act (NLRA) sets up an all-or-nothing proposition: workers get union representation if and only if a majority votes for it. This gives employers an incentive to fight union drives tooth-and-nail: for them, keeping union support below 50 percent means retaining unfettered workplace control. The PRO Act helps respond to this problem by changing the rules of engagement—for example, it would ban “captive audience” meetings—and by increasing penalties on employers who break the law. These worthy interventions are also part of the Clean Slate—but the Clean Slate takes the next step and undoes the all-or-nothing premise altogether. Instead, it creates multiple forms of workplace representation so that workers can build toward a traditional union, and then to sectoral bargaining.
This system begins with a workplace monitor who is charged with helping ensure that the employer complies with labor and employment law. Whether or not to have a monitor at all would not be up for debate—every workplace would have one monitor for every 500 workers. But workers would elect the monitor, who could be one of their co-workers or someone from an outside organization.
Next, a request by just three workers would trigger the creation of a “works council”—a body elected by workers, and empowered to meet and confer with management over key workplace issues. And, it would take only 25 percent of employees to elect a union or a worker advocacy group that would have the right to engage in collective bargaining on behalf of its own members. Once a union’s membership surpasses 50 percent of a workplace’s employees, it would become the exclusive representative of all of the employees. Finally, a union that achieved sufficient membership across workplaces in the same industry could trigger sectoral bargaining.
Organizing and Technology
Between fears of automation and the rapaciousness of the online “gig” economy, it can seem like technology is more synonymous with worker exploitation than worker empowerment. The Clean Slate response is to level the playing field so that employers can’t use technology to isolate workers from one another, to spy on workers’ communication, or to insulate themselves from customers’ reactions to strikes and picket lines. The general idea is to create opportunities for workers to use for organizing purposes the same types of technology that employers often implement to control their workforces.
Two examples illustrate Clean Slate’s approach. First, consider how Uber uses technology to manage and communicate with its drivers: the company has a constant stream of information about what drivers are doing, even though drivers never have to come to a common location like a taxi depot. Drivers might meet each other while waiting for fares in airport parking lots, or they might communicate on online message boards—but Uber’s decentralized operation still means less of the kinds of interactions that can lead to collective problem-solving, protest, and solidarity.
Uber can do this in part because of the technology it uses, which allows for advanced, secure, real-time communications. But that same technology could enable workers to communicate with each other cheaply and privately. Recognizing that technology can bring workers together as easily as it can divide them, Clean Slate therefore recommends that employers be required to create “virtual break rooms” for their workforces—surveillance-free spaces where workers can meet each other, talk about their problems, and organize.
Thus, the Clean Slate approach would require struck employers to notify potential online customers about labor disputes, so that customers can make an informed choice about whether to cross the (virtual) picket line.
Second, strikes and picket lines are often invisible to a company’s online customers. For example, someone who books a hotel room online might be shocked to encounter a picket line when they arrive with their luggage—but if it is late at night and they are in a new city, they might conclude they have no realistic option but to cross the picket line. On the other hand, if they’d known in advance—either through notifications in the reservation portal, or when the hotel confirmed their reservation—they could have changed their plans. Again, the key is that the same technology that allows companies to take reservations seamlessly even while their workers are striking could also be a tool to inform online customers about the strike. Thus, the Clean Slate approach would require struck employers to notify potential online customers about labor disputes, so that customers can make an informed choice about whether to cross the (virtual) picket line.
Labor Law and Beyond
It will take more than labor law reform to achieve a fair economy and a responsive democracy. While Clean Slate’s recommendations focus mainly on workplace-based collective power, they also call for both large and small changes to corporate law, election law, and tax law. Some of these ideas link directly to workers’ collective action; for example, the report calls for the creation of crowdfunded tax-deductible strike funds, so that the public can more easily and tangibly express its support for striking workers. But Clean Slate also recognizes that democratic reform and workplace reform are interdependent, and so other recommendations aim to strengthen workers’ voices in American democracy. Among these is a call for employers to provide paid time off for workers to engage in civic activity, such as voting, registering others to vote, or volunteering with a campaign—an idea that need not wait for the U.S. Congress, but instead could be implemented at the state or local level.
These reforms are ambitious, but they need not be enacted all at once. In fact, they are likely to be pro-cyclical: workers increasing their collective power at work should yield more political power, and ultimately a more responsive government that is likely to enact further improvements to labor law. One question—where to start this cycle—has a ready answer: with the PRO Act. The legislation would remove worker-disempowering barriers to collective action that plague American labor law. As for where workers can set their sights: the Clean Slate is a forward-looking path toward more equitable workplaces and a more vibrant democracy.