Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School. From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C. Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere. Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School. He can be reached at [email protected].
Sharon Block is a Professor of Practice and the Executive Director of the Center for Labor and a Just Economy at Harvard Law School.
By Sharon Block and Benjamin Sachs
In September, we shared our plan to hold a symposium at Harvard Law on the question of whether it is time to end labor preemption. The symposium brought together leading labor law scholars and practitioners to wrestle with this big question. To help give context to the symposium discussion, we had asked several thought leaders to help paint the picture of what is at stake in this debate by exploring ways that workers are already organizing outside of the confines of the National Labor Relations Act and models that they might pursue, if given the opportunity.
Our colleagues at the Harvard Law and Policy Review have now made these papers available to the public with a special on-line issue. The papers include:
- Charlotte Garden, The Seattle Solution: Collective Bargaining by For-Hire
Drivers & Prospects for Pro-Labor Federalism - Jose Garza, Outrunning the Devil: Considering the Implications of Relaxing the NLRA’s Preemption Regime for Working Texas Families
- Kate Andrias, Social Bargaining in States and Cities: Toward a More Egalitarian and Democratic Workplace Law
- Seema Patel and Catherine Fisk, California Co-Enforcement Initiatives that Facilitate Worker Organizing
- Wilma Liebman, Does Federal Labor Law Preemption Doctrine Allow Experiments with Social Dialogue?
These papers chronicle some of the most innovative worker organizing going on across the country – for workers outside the purview of the National Labor Relations Act. They are important experiments and can be seen as part of a bigger dynamic of progressive labor reform going on in blue states and cities, in the face of paralysis at the federal level. This bigger trend includes the following state and local legislation taking effect in the new year:
- minimum wage increases in 18 states and 19 cities, eventually benefitting more than 15 million workers
- new bans on asking about salary history (CA, DE, RI, NYC)
- ground-breaking comparable worth law (MA)
- new and expanded sick and family leave laws (St. Paul, NV, NY, WA)
- fair and predictive scheduling requirements (OR)
- enhanced pregnancy accommodation requirements (MA, VT)
For workers covered by the NLRA – even in the bluest of the blue states — while 2018 may bring new labor standards, it will not bring exciting new frameworks for experimentation in worker voice and organizing. The broad preemptive effect of federal labor law means that the energy and creativity that is fueling minimum wage, scheduling and paid leave campaigns cannot be applied to campaigns for new ways to expand collective bargaining for the vast majority of the private sector.
The members of Trump’s National Labor Relations Board started the holiday season by further restricting and constraining the federal right to collective bargaining, putting the missed opportunity cost imposed by federal labor law preemption into even greater relief. The need for fundamental labor law reform will only grow in 2018. With it will grow the need to continue the debate over labor law preemption. We hope these new symposium papers will help foster and inform that debate.
Daily News & Commentary
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November 23
Workers at the Southeastern Pennsylvania Transportation Authority vote to authorize a strike; Washington State legislators consider a bill empowering public employees to bargain over workplace AI implementation; and University of California workers engage in a two-day strike.
November 21
The “Big Three” record labels make a deal with an AI music streaming startup; 30 stores join the now week-old Starbucks Workers United strike; and the Mine Safety and Health Administration draws scrutiny over a recent worker death.
November 20
Law professors file brief in Slaughter; New York appeals court hears arguments about blog post firing; Senate committee delays consideration of NLRB nominee.
November 19
A federal judge blocks the Trump administration’s efforts to cancel the collective bargaining rights of workers at the U.S. Agency for Global Media; Representative Jared Golden secures 218 signatures for a bill that would repeal a Trump administration executive order stripping federal workers of their collective bargaining rights; and Dallas residents sue the City of Dallas in hopes of declaring hundreds of ordinances that ban bias against LGBTQ+ individuals void.
November 18
A federal judge pressed DOJ lawyers to define “illegal” DEI programs; Peco Foods prevails in ERISA challenge over 401(k) forfeitures; D.C. court restores collective bargaining rights for Voice of America workers; Rep. Jared Golden secures House vote on restoring federal workers' union rights.
November 17
Justices receive petition to resolve FLSA circuit split, vaccine religious discrimination plaintiffs lose ground, and NJ sues Amazon over misclassification.