A version of this article was originally published by The Century Foundation.
Labor law reform is having a renaissance, and not a minute too late. For starters, the House of Representatives 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, all leading Democratic presidential candidates have endorsed the PRO Act and then proposed an array of additional labor law reforms.
Policymakers and politicians are hungry for innovative ideas to enhance worker power. This is where the newly released Clean Slate for Worker Power comes in. (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.
Clean Slate’s 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.
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. That is a worthy goal—among other reasons, secondary strikes and pickets can be especially necessary in the fissured economy, where entities other than the primary employer often influence 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: 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.
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 rein in employers, but also 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 Uber. The technology it uses gives it a unilateral advantage – it knows everything about drivers, but many drivers know little about each other or about Uber. 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.
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. 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.