The New Labor Law

By Andrias, Kate | The Yale Law Journal, October 2016 | Go to article overview

The New Labor Law


Andrias, Kate, The Yale Law Journal


ARTICLE CONTENTS  INTRODUCTION    I. LABOR LAW'S DECLINE AND FAILED REVIVAL      A. The NLRA         1. From Wagner to Taft-Hartley: The System of Decentralized,            Private            Representation and Bargaining         2. Economic Restructuring, Law, and Deunionization         3. Labor Law and Politics      B. Employment Law: Distinct and Insufficient      C. Efforts at Renewal         1. Resuscitation         2. Abandonment   II. THE CONTOURS OF A NEW LEGAL FRAMEWORK       A. Evolution of the Movement: From McDonald's, to Fast Food,         to Low-Wage      B. The Standard Account: Minimum Wages and Employment Standards      C. A New Unionism         1. From Workplace to Sector         2. From Private to Social         3. Conclusion: Blurring the Employment/Labor Distinction; the            Broader Social Movement; and the Uncertain Future of            Worksite Representation  III. THE CASE FOR THE NEW LABOR LAW       A. Weaknesses of the Emerging Regime      B. A Qualified Defense   IV. DEVELOPING THE NEW LABOR LAW       A. A Legal Framework for Social Bargaining         1. Expanding Local and State Sectoral Bargaining         2. The Problems of Home Rule and Preemption      B. Building Sustainable Worksite Organization         1. Social Bargaining as a Complement to Exclusive Bargaining            Agreements         2. New Funding Mechanisms         3. Worksite Representation and Alternative Forms of Worker            Voice  CONCLUSION 

INTRODUCTION

American labor unions have collapsed. (1) While they once bargained for more than a third of American workers, unions now represent only about a tenth of the labor market and even less of the private sector. (2) In the process, the United States has lost a core equalizing institution in politics and the economy. (3) Employment law, which protects employees on an individual basis irrespective of unionization, has not filled the void. (4) Economic inequality is at its highest point since the Gilded Age, when unionization rates were similarly low. (5) Workers have declining influence not only in their workplaces, but also in policymaking at the state and federal levels. (6)

For several reasons, current law offers little hope for reversing the trend. (7) The familiar explanation, and the focus of most attempts at labor law reform, is that the National Labor Relations Act's (NLRA) weak enforcement mechanisms, slight penalties, and lengthy delays--all of which are routinely exploited by employers resisting unionization-fail to protect workers' ability to organize and bargain collectively with their employers. (8) But two other factors are perhaps even more important to labor law's failure to protect workers' right to organize and bargain in ways that help redistribute both economic and political power. First, the NLRA, with its emphasis on firm-based organizing and bargaining, is mismatched with the globalized economy and its multiple layers of contracting. (9) Indeed, these "fissured" corporate structures were adopted by employers in part to reduce labor costs and diminish the potency of the NLRA and employment law. (10) Second, the NLRA was never designed to ensure the vast majority of workers significant influence over the economy or politics. (11) Unlike legal regimes prevalent in Europe, the NLRA does not empower unions to bargain on behalf of workers generally, nor does it provide affirmative state support for collective bargaining. (12) Instead, it establishes a system of voluntaristic, decentralized unionism: collective bargaining is a private negotiation between individual employers and employees at worksites where a majority has chosen to unionize. (13)

Some scholars have suggested ways to mend the old regime. (14) But their proposals do not solve the basic problem: labor law, developed during and after the New Deal, has been rendered inapt by contemporary managerial strategies and fails to provide tools capable of redressing today's inequities. …

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