Editorials

The Future of Labor

Catherine Fisk

Catherine Fisk is the Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley Law, where she teaches and writes on the law of the workplace, legal history, civil rights and the legal profession. She is the author of dozens of articles and four books, including the prize-winning Working Knowledge: Employee Innovation and the Rise of the Corporate Intellectual Property, 1800-1930, and Labor Law in the Contemporary Workplace. Her research focuses on workers at both the high end and the low end of the wage spectrum.  She has written on union organizing among low-wage and immigrant workers as well as on labor issues in the entertainment industry, employee mobility in technology sectors, employer-employee disputes over attribution and ownership of intellectual property, the rights of employees and unions to engage in political activity, and labor law reform.  She is the co-author, with UCI Law Professor Ann Southworth, of an innovative interdisciplinary casebook, The Legal Profession. Her current public service includes membership on the SEIU Ethics Review Board, the Board of Directors of the Wage Justice Center, and committees of the Law & Society Association.  Prior to joining the founding faculty of UC Irvine School of Law, Fisk was a chaired professor at Duke Law School, and was on the faculty of the University of Southern California Gould School of Law and Loyola Law School in Los Angeles.  She practiced law at a boutique Washington, D.C. firm and at the U.S. Department of Justice.  She received her J.D. at UC Berkeley, and an A.B., summa cum laude, from Princeton University.

This post is part of a series on Labor in the Trump Years.

From the end of Reconstruction up through the election of 2016, political elites have done a masterful job convincing the white working class that they do not share a common interest with nonwhite workers.  They used regional differences to political advantage by convincing Southern and rural voters that Northerners, urbanites, and intellectuals disdain them.  The task for labor and the left now is to make sure that the 2016 election is the last time that happens.  Rather than demonize those who voted for Trump as bigots, labor should take their economic demands seriously.  Labor should seek common cause among all people around the economic issues that animated the vote for change.  White voters in Michigan, Ohio, and Wisconsin put Trump in office because he promised to improve their lives.  When he doesn’t deliver on his populist promises because his policy agenda is entirely about cutting taxes and freeing corporations from all labor regulation, labor must remind middle class and working class voters of all races and ethnicities that corporate interests are dominating a Trump Administration.

Republicans now have to govern in a way that at least makes a gesture toward the populist campaign that Trump ran.  The longstanding Republican strategy of using religion and social issues as wedges to divide the working and middle classes may not work in a Trump Administration.  Trump is not beholden to the religious right; for the first time since 1980, the religious right did not get the Republican candidate they wanted.  Trump will not be able to make good on, and has already begun backing away from, his most hateful nativist promises to build a wall along the Mexican border and to deport 11 million people because business elites in agriculture, shipping, service work, and manufacturing depend on immigrant labor.  He has also begun to back away from the most reckless promises about repealing the Affordable Care Act because too many of his likely voters depend on some of its protections.  Unless there is a major attack, Trump cannot use the threat of terrorism, as the George W. Bush administration did, to distract the electorate from serious attention to the declining or stagnant fortunes of the vast majority of Americans.  He ran on domestic economic malaise in the regions of the country that haven’t seen the spectacular increases in wealth of the urbanized coasts, and labor should now hold government to account for doing something about it.

Regardless of the economic populism on which Trump ran, Republicans will pursue a legal agenda that serves conservative corporate interests.  They will renew efforts to weaken enforcement of labor and employment laws in every way.  They will eliminate the Obama Administration executive orders requiring government contractors to adhere to decent labor standards.  They will reverse initiatives of the Labor Department on joint employment and perhaps the new regulation extending overtime pay eligibility to more workers.  A newly conservative EEOC may change that agency’s position on gender identity discrimination.  The membership of the NLRB will change as terms expire, and a Board with a Republican majority can be expected to overturn Obama Board rules on joint employment, on the scope of protected activity (especially in nonunion workplaces).  Congress may enact federal so-called right-to-work legislation making it illegal for unions and companies to enforce collective bargaining agreements requiring employees to pay dues or fees to a union.  And the changes that don’t happen administratively or legislatively will happen in the judicial branch, as Trump will nominate and the Senate will confirm judges who will overturn Abood, along with many other legal gains for workers in the last eight years.  The First Amendment may become an all-purpose constitutional restriction on economic regulations that regulate corporate speech.

Republicans won in part because they tarred the Clintons and Obama as friends of Wall Street and global finance who enriched health insurance companies by driving up premiums under the Affordable Care Act, and as squandering American wealth on endless wars.  As the price of ending the financial collapse in 2009, the government bailed out banks and auto companies in ways that saved global capitalism (and lots of auto jobs) but did far less than the left wanted for working people.  The Affordable Care Act has some great features (some of which Trump is now promising to keep) but political compromises left too much risk of premium increases on individuals and too few cost controls on health care providers or insurers.  When Donald Trump told urban poor African Americans that the Clintons had not been good to them, he had a point – the Clinton Administration in 1996 essentially eliminated welfare and enacted horrifically punitive criminal justice law.

Being entirely out of power in Washington will allow Democrats to stop defending the anti-worker aspects of laws enacted during the Clinton and Obama Administrations.  Labor must push Democrats to develop a political agenda that is genuinely, and inclusively, populist.  The strength of organized labor was always about mobilizing people around ideas; it wasn’t about protecting the right to collect dues to administer collective bargaining agreements.  So when fair share fees become illegal nationwide, unions will have to inspire the workers, not just negotiate contracts for them.

The single most important challenge for organized labor is to remind all voters that immigrant workers don’t take good jobs away from whites; rather, corporations have skillfully divided immigrants from white workers in order to drive down everyone’s wages and working conditions in agriculture, meat packing, warehousing and shipping, fast food, and every other sector of the low-wage economy.  Immigrants didn’t drive down real wages since the 1970s; corporations did.  Only a common cause among all workers will change that.

With Republican control of all three branches of government, we should expect Republican elites to use the strategies of racial, ethnic, and regional division to distract people from harms that deregulatory policies have on their economic interests, just as elites have done in the U.S. for nearly two centuries.  This is a moment, therefore, when organized labor (whatever remains of it) needs to reach out to Trump voters in the Rust Belt, the South, and the Southwest to convince them that the government can and should address the issues they care about – decent jobs, affordable education, and economic security – which are the same issues that animate working and middle class Democratic voters as well.

Business interests will be all too happy to exploit the left’s outrage about Trump’s racist attacks on immigrants to distract white voters from seeing the way deregulatory policies hurt them just as much as they hurt workers of color.  A campaign for good jobs, good health care, a secure retirement, and respect for contributing to society are the issues that demand the focus of all workers and they are the only future that labor has.

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