Continuing the Labor Law Reform Debate in 2018

Benjamin Sachs

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. 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

Sharon Block is a Professor of Practice and the Executive Director of the Labor and Worklife Program 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:

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.

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