Person:

Sachs, Benjamin

This essay challenges the conventional wisdom that American labor law has reached a dead end. I argue that the dysfunctionality of the National Labor Relations Act has led not to "ossification" - as many believe - but to a hydraulic effect: unable to find an outlet through the NLRA, the continuing demand for collective action has forced open alternative legal channels. The essay outlines three examples to illustrate these emerging trends. The first involves the ability of several thousand janitors in Houston to secure wage increases and health benefits through a unionization campaign governed entirely by private agreement. The second concerns several hundred thousand home care and child care workers who unionized under a regime of state and local labor law. And the third is the story of an immigrant garment worker who relied on a quintessential employment law statute to lead a collective effort for overtime wages at her Brooklyn factory. These accounts illustrate labor law's new dynamism. They also reveal that American labor law is no longer a regime defined by a single federal statute administered by a single federal agency. Rather, the field is increasingly constituted by private processes, state and local regulation, and multiple federal statutes - most notably employment laws like Title VII and the Fair Labor Standards Act - enforced by multiple actors. The essay proposes that we treat each of these decentralizing trends as a productive form of experimentation. Self-consciously embracing this experimental potential will provide new insight into a series of practical questions central to labor law reform. These experimental developments also will help us resolve structural and conceptual quandaries at the core of the field: the appropriate function of private agreement in labor law; the role that states and localities should play in the design of labor policy; and the relationship between individual rights and collective action.

The proposed Employee Free Choice Act (EFCA) has led to fierce debate over how best to ensure employees a choice on the question of unionization. The debate goes to the core of our federal system of labor law. Each of the potential legislative designs under consideration - including both “card check” and “rapid elections” - aims to enhance employee choice by minimizing or eliminating managerial involvement in the unionization process. The central question raised by EFCA, therefore, is whether enabling employees to limit or avoid managerial intervention in union campaigns is an appropriate goal for federal law. This Article answers this foundational question in the affirmative. It reaches this conclusion by conceptualizing federal labor law in terms of legal default rules, drawing in particular on the preference-eliciting default theory of statutory interpretation and the reversible default theory from corporate law. Doing so leads to the argument that card check, rapid elections, and similar mechanisms are best understood as “asymmetry-correcting altering rules” - means of mitigating the impediments that block departure from the nonunion default. Understanding EFCA in this way also requires that we ask how such an altering rule should be constructed. This Article addresses this institutional design question by arguing that card check’s open decision-making process is flawed and that rapid elections, while an improvement over the status quo, are an insufficient method of mitigating the relevant impediments to employee choice. Accordingly, this Article offers two new designs - alternatives to both card check and rapid elections - that would accomplish the legitimate function of minimizing managerial intervention while at the same time preserving secrecy in decision-making.

This Tribute essay explores Judge Stephen Reinhardt’s labor and employment jurisprudence, arguing that the jurisprudence is defined by a consistent substantive vision of what labor and employment law intends to accomplish and by a particular method of interpreting these laws. Three cases highlight these twin themes. The first concerns the scope of the anti-retaliation clause of the Fair Labor Standards Act. The second deals with the ability of undocumented workers to assert rights granted by Title VII. And the third addresses the ability of unions to spend dues money on organizing new members. The essay also comments on these cases’ broader significance to the fields of labor and employment law.

Seventy years after Congress passed the National Labor Relations Act (NLRA), the scholarly consensus is that American labor law has become ossified. As I have argued elsewhere, however, while the NLRA is undoubtedly dysfunctional, the blockage of this traditional channel for collective action has led not to ossification, but to a hydraulic effect: unable to find an outlet through the NLRA, the continuing demand for collective action has forced open alternative legal channels.

This article explores the first of these new channels, which I name employment law as labor law. The article presents detailed accounts of collective campaigns in which workers turn to employment law, in particular the Fair Labor Standards Act and Title VII, as the legal architecture that facilitates and protects their collective activity. This legal architecture, provided here by employment statutes, is one we conventionally call labor law.

Drawing upon and moving beyond these descriptive accounts, the article offers a theoretical model that explains how employment law's individual rights regime can galvanize, insulate, and generate workers' collective action. By revealing employment law's capacity to foster collective action, moreover, the article provides a new way of understanding the relationship between labor law and employment law. The model developed here disputes the claim that labor and employment law constitute distinct - and inimical - regulatory regimes.

Finally, the article contends that employment law's ability to foster collective action invites future inquiry into the possibility for a great trade in labor law reform: a new regime that provides strong safeguards for the early stages of collective action but retreats from the cradle-to-grave regulation that has defined, and ultimately undermined, the NLRA.

Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, corporations and unions were equally constrained in their ability to spend general treasury funds on federal electoral politics. After the decision, campaign finance law leaves both equally unconstrained and free to use their general treasuries to finance political expenditures. But the symmetrical treatment that Citizens United leaves in place masks a less visible, but equally significant, way in which the law treats union and corporate political spending differently. Namely, federal law prohibits a union from spending its general treasury funds on politics if individual employees object to such use—employees, in short, enjoy a federally protected right to opt out of funding union political activity. In contrast, corporations are free to spend their general treasuries on politics even if individual shareholders object—shareholders enjoy no right to opt out of financing corporate political activity. This Article assesses whether the asymmetric rule of political opt-out rights is justified. The Article first offers an affirmative case for symmetry grounded in the principle that the power to control access to economic opportunities—whether employment or investment based— should not be used to secure compliance with or support for the economic actor’s political agenda. It then addresses three arguments in favor of asymmetry. Given the relative weakness of these arguments, the Article suggests that the current asymmetry in opt-out rules may be unjustified. The Article concludes by pointing to constitutional questions raised by this asymmetry, and by arguing that lawmakers would be justified in correcting it.

The preemption regime grounded in the National Labor Relations Act (NLRA) is understood to preclude state and local innovation in the field of labor law. Yet preemption doctrine has not put an end to state and local labor lawmaking. While preemption has eliminated traditional forms of labor law in cities and states, it has not prevented state and local reconstruction of the NLRA’s rules through what this Article terms “tripartite lawmaking.” The dynamic of tripartite lawmaking occurs when government actions in areas of law unrelated to labor — but of significant interest to employers — are exchanged for private agreements through which unions and employers reorder the rules of union organizing and bargaining. These tripartite political exchanges produce organizing and bargaining rules that are markedly different from the ones the federal statute provides but that are nonetheless fully enforceable as a matter of federal law.

By describing the phenomenon of tripartite lawmaking, this Article allows for a more complete understanding of the local role in contemporary labor law. But the existence of tripartite lawmaking also reveals important characteristics of federal preemption more generally. In particular, the potential for tripartite lawmaking within the confines of formally preemptive regulatory regimes points to the limits of preemption’s ability to allocate regulatory authority among different levels of government and deliver a uniform, national system of law. State and local lawmaking that occurs through the tripartite dynamic also has a number of distinctive features that become visible once we recognize the existence of this form of lawmaking. As this Article suggests, moreover, tripartite lawmaking is likely not limited to the labor context but may occur wherever federal preemption coexists with the possibility for private ordering.

Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions’ ability to serve as a political-organizing vehicle for lower- and middle-income groups.

This Essay proposes that labor law unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes. Doing so would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining, an outcome that could mitigate representational inequality. The Essay identifies the legal reforms that would be necessary to enable such unbundled “political unions” to succeed. It concludes by looking beyond the union context and suggesting a broader regime of reforms aimed at facilitating political organizing by those income groups for whom representational inequality is now a problem.