Labor law in the U.S. has been broken down over the past several decades until you might think it nearly nonexistent. And yet a new wave of worker resistance and political interest in labor makes it a good time to push for a reimagining and rebuilding of the laws that govern the workplace. The Economic Policy Institute has just published a new agenda for doing just that—called "First Day Fairness." I talked with Celine McNicholas, one of the authors of the report, about the movement that will be necessary to rewrite the rules to give workers an equal chance.
Sarah Jaffe: You just helped put out a new report with the title “First Day Fairness.” Talk about what that means.
CM: Workers really start out with the deck stacked against them from their first day on the job.That was made really clear this Supreme Court term with the Epic Systems case, where as a condition of employment workers are being required to sign away rights to workplace protections just in order to get that job.
You start work with your employer so incredibly advantaged over you. We wanted to highlight that on the first day, unfortunately, workers are increasingly coming to the job with no power.
Q: As you note in the report, a lot of these are not new ideas, things like raising the minimum wage. But you’re trying to put it all together as a comprehensive framework for what labor law should look like.
CM: There are lots of different reforms that are necessary.
First, people need the right to be able to organize and have a union in their workplace. That means expanding existing protections such that some of those workers who have traditionally been excluded from labor law protections [domestic workers, caregivers] are now covered. We have got to do more to ensure a basic level of job quality: fundamental fair wages, fair minimum wage, overtime protections.
Second, we have got to do something know to combat this expanding employer practice of requiring workers to sign away all of these existing rights as a condition of employment.
The final piece is that we need government enforcement of these rights. We need folks to be able to come in, investigate, inspect, ensure that our workplaces are safe, ensure we are being paid properly.
Q: Yes, theoretically, we still have OSHA. But, there are no OSHA inspectors, so…
CM: Reimagining the power of organized labor, to me, is the takeaway from the report. That gets into lots of things that have eroded for organized labor over the last 40 to 50 years. You don’t have much leverage if at the end of the day an employer can just replace you. This is the current state of the law for workers who decide to engage in a strike because they have come to their wits end: they are not getting the wage increase, they are working in an unsafe condition, they are being treated disrespectfully. If you take away workers’ ability to advocate for themselves and those processes, then essentially you take away the benefit of being in a bargaining unit.
Q: When we are talking about big companies like Walmart and Amazon, we are also talking about layers of people who work for them, but don’t really work for them. You have some proposals that would tackle this question of what people call the “fissured workplace.”
CM: I know I sound like a broken record to keep bringing everything back to bargaining, but if you don’t know who your employer of record is because of the fissuring of the workplace (the sort of creative subcontracting that allows employers to evade liability), you can’t bring the right employer to the bargaining table. If we can’t identify our employer, we are left with no one left to point to as responsible for a violation of the law. That is one of the main elements of this proposal, making sure that folks know on their first day who their employer is.
Q: Some of these proposals are already in bills before Congress. What are the chances of any of these particular ones, and what would it take to link them together to make them a big labor bill of rights kind of thing?
CM: I think it is really encouraging that so many of these reforms already live in existing, already-introduced legislation in Congress. None of them get a great deal of attention, but in particular the Workers’ Freedom to Negotiate Act which was introduced this Congress goes to the heart of many of the reforms ensuring that folks can unionize.
“So many of these reforms already live in existing, already-introduced legislation in Congress . . .”
In terms of how likely it is that any of this passes, I think that is really on all of us. We have a responsibility as advocates to get in there and make sure that people are, number one, aware of these bills, and also that there is a grassroots movement.
I think a fair economy and how we are all treated at work—economic justice—is such a unifying issue. I remain optimistic that Democrats will recognize that these issues simply cannot be ignored going forward. That said, we have to demand it.
Q: One of the things we can take away from Missouri defeating the Right-to-Work law is that even though Democrats in states like that have not prioritized workers’ rights issues, when they put Right to Work on the ballot two-thirds of the state voted against it.
CM: It seems almost forgotten now but that is exactly what Trump ran on, this notion that the American worker is being disadvantaged, ill-served by the existing system. That was a winning message. In an era where who knows what is true, that is true for the vast majority of people in this country.
Listen to the full interview here:
Interviews for Resistance is a syndicated series of interviews with organizers, agitators and troublemakers, available as text and podcast.