Worker Unity and the Law: A Comparative Analysis of the National Labor Relations Act and the Fair Labor Standards Act, and the Hope for the NLRA's Future

NEW YORK CITY LAW REVIEW [Vol. 13:107], 2009

36 Pages Posted: 26 Jun 2019

Date Written: December 31, 2009

Abstract

This Note demonstrates how Congress and the courts have severely limited the original intention of the National Labor Relations Act (NLRA) because of concerns that the Act potentially disrupts fundamental power dynamics in the market economy by allowing workers to collectively take control away from business. On the other hand, business interests have not viewed the Fair Labor Standards Act (FLSA) as equally threatening because the FLSA does not seek to modify the workplace power imbalance. Congress has left the FLSA relatively intact, even expanding its worker protections over the years, and courts have interpreted its worker protections relatively liberally when compared to their treatment of the NLRA.

The Note begins by reviewing the legislative and social histories of both Acts, as well as subsequent modifications to the Acts. It also contrasts adjudicatory interpretations of the NLRA and the FLSA, revealing how the NLRA has been reduced in its application and has been used to divide workers, while the FLSA and its individual rights regime have been comparatively expanded in application. Specifically, this Note examines the courts’ and the NLRB’s recent trend of denying NLRA remedies to undocumented workers and of reducing the categories of employers and associated entities liable for NLRA violations. Meanwhile, courts approve FLSA remedies regardless of immigration status and have expanded the application of the joint employer doctrine, ensuring that even indirect employers are held liable for FLSA violations. The Note then concludes with an argument that, despite calls from scholars and labor leaders to scrap the NLRA and the NLRB, important worker victories are still possible under the NLRA; therefore it and the NLRB should be preserved. In addition to looking for ways to modify the NLRA, worker advocates should think creatively and look for windows of opportunity that still exist under the Act. There is still hope that the NLRA can fulfill Congress’ original intent of encouraging concerted worker activity and collective bargaining.

Keywords: labor, employment, legal theory, conflict of laws, NLRA, FLSA

JEL Classification: J

Suggested Citation

Harris, Jonathan, Worker Unity and the Law: A Comparative Analysis of the National Labor Relations Act and the Fair Labor Standards Act, and the Hope for the NLRA's Future (December 31, 2009). NEW YORK CITY LAW REVIEW [Vol. 13:107], 2009, Available at SSRN: https://ssrn.com/abstract=3408162

Jonathan Harris (Contact Author)

LMU Loyola Law School ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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