Structural Labor Rights
55 Pages Posted: 5 Jun 2020 Last revised: 11 Jun 2020
Date Written: January 9, 2020
American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2% in the private sector—a level unequaled since the Great Depression—the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed to step in, leaving employers free to coordinate and consolidate labor market power while constraining workers’ ability to do the same. The dissolution of workers’ collective rights has resulted in spiking income inequality: workers have suffered economy-wide wage stagnation and a declining share of the national income for decades. To resolve this crisis, some scholars have advocated for ambitious labor law reforms, like sector-wide bargaining, while others have turned to antitrust law to tackle employer power. But these proposals overlook an existing opportunity already contained in the labor law that would avoid political and doctrinal obstacles to such large-scale reforms.
This Article argues for a “structural” approach to the labor law that revives and modernizes its equal bargaining power purpose through deploying innovative social scientific analysis. A “structural” approach is one that takes into account workers’ bargaining power relative to employers in determining the scope of substantive labor rights and in resolving disputes. The Article makes three key contributions. First, it documents the dispersion and misalignment of workers’ collective rights under current labor law, detailing the historical narrowing of workers’ collective rights to limited tactics by a small set of workers against highly-protected individual enterprises and the concomitant rise of employer power (Part I). Second, it introduces and schematizes the wealth of social scientific literature relevant for evaluating the relative bargaining power of employers and employees (Part II). And finally, it offers concrete proposals for how to apply these social scientific tools and insights to three areas of the Board’s adjudication and regulatory authority: “employer”/“employee” status determinations, the determination of employees’ substantive rights under Section 7 of the NLRA, and the determination of what counts as sanctionable unfair labor practices under Section 8 of the NLRA (Part III).
Keywords: Labor Law, Employment Law, Antitrust Law, Administrative Law, Law and Economics, Law and Social Science
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