Protecting workers as a matter principle: a Latin American view of U.S. work law.

• Published date: 22 December 2014
• Author: Gamonal C., Sergio,Marzan, Cesar F. Rosado
• Date: 22 December 2014

III. VIEWING THE U.S. FROM THE SOUTH AND FINDING THE PROTECTIVE PRINCIPLE

The authors acknowledge that existing U.S. case law is inconsistent when it comes to worker protection. In fact, many times it simply does not protect workers, but rather favors employer interests; however, we can find a principle of protection and use it to prospectively reconstruct the law. The authors limit their analysis, for reasons of time and space, to the Thirteenth Amendment of the U.S. Constitution, the NLRA, the FLSA, and relevant scholarship. In their future scholarship, the authors expect to show how the principle of protection can be found in other work law statutes such as Title VII of the Civil Rights Act of 1964, (126) and the Occupational Safety and Health Act, (127) among others.

A. The Protective Principle in the Thirteenth Amendment of the U.S. Constitution

The great bulk of American work law statutes have found constitutional validity in the Commerce Clause of the U.S. Constitution. (128) However, commercial bias inherent in such a clause enabled or motivated U.S. courts to interpret some aspects of statutory work law in favor of employers. (129) Given the weaker constitutional basis for worker protection found in the Commerce Clause, leading American constitutional law scholars have argued that constitutional validity of labor protections should rest on the Thirteenth Amendment of the U.S. Constitution. (130) The Thirteenth Amendment provides the basis for worker protective legislation through the ban of involuntary servitude. (131) It gives Congress the power to enact legislation to give effect to that constitutional ban. As Professor Rebecca Zietlow explains, the ban on involuntary servitude was aimed not just at coerced forms of compulsory labor, but "protects a broad spectrum of workers' rights and civil rights, and gives Congress broad authority to enforce those rights." (132)

Indeed, workers have attempted, albeit not always successfully, to secure an amalgam of rights under the Thirteenth Amendment, including the right to change employers, the right to set wages, the right to refrain from work, the right to practice one's trade, the right to receive fair wages and the right to strike, all giving credence to claim that the ban against involuntary servitude was, at least popularly and historically, meaningful beyond mere chattel slavery. (133)

The notion that ordinary employees were subject to "slavery" was a response to nothing other than the common law. (134) Common law judges would normally hold that workers' collective actions, attempts to unionize, strike and bargain collectively violated employers' property rights, acquired through contract. (135) As Professor William Forbath explained:

 Not liberty of contract alone, but also the legacy of the
                 antislavery movement and the Thirteenth Amendment lent
                 constitutional heft to labor's blows against its court-forged
                 manacles. According to this legacy, the dignity and independence of
                 free labor were inscribed in the Constitution. It smacked of
                 slavery, trade unionists complained, or of feudalism, at best, when
                 courts routinely held that employers had a property right in their
                 workers' returning each day to toil in the employers' plants, or a
                 property right in their workers' non-union status, or a property
                 right in their authority to run the plant without contending with
                 workers seeking to negotiate over union work rules. (136)
                

Some workers thus attempted to gain a foothold for their rights of association in the Thirteenth Amendment.

While the Supreme Court initially rejected a broader reading of the Thirteenth Amendment, later case law gave a more expansive view of the Thirteenth Amendment. Workers found constitutional bases for the fundamental labor rights to quit working under the Thirteenth Amendment. (137) The constitutionality of Section 1982 of the Civil Rights Act of 1866, (138) which forbids race discrimination in inheritance, purchase, lease, sale, holding, and conveyance of personal and real property, also found an anchor on the Thirteenth Amendment. (139)

The reasons why twentieth century labor and employment laws were not based on the Thirteenth Amendment are complex and contested in the legal-historical literature. Professor James Pope argued that New Dealers were interested in securing the rights of government technocrats and regulators to manage the American economy, rather than to give that authority to workers. (140) Professor William Forbath disagrees with Pope, arguing that the New Dealers were clinging onto a social citizenship constitutionalism where citizens had constitutional economic and social rights and Congress had "the duty to exercise its power to govern economic and social life in a way that sought to secure those rights." (141) New Dealers sought to constitutionalize labor law on the will of the people who want to protect constitutionally given social and economic rights, channeled through Congress.

Regardless of the historical origins for the constitutionalizing of work laws through the Commerce Clause, and not the Thirteenth Amendment, some contemporary U.S. scholars have been arguing that work law should find a constitutional anchor in the Thirteenth Amendment. (142) The argument is straightforward: the Thirteenth Amendment supports protective labor legislation because workers who are forced to work by conditions that they cannot control, including, for example, when they cannot strike, only makes their working conditions more onerous, exploitative, and necessarily un-free. (143) Therefore, Congress should legislate to protect workers and, in this manner, protect their freedom.

In Pollock V. Williams, the U.S. Supreme Court recognized that that Thirteenth Amendment can serve as basis to protect ordinary workers and not just chattel slaves. (144) Compulsory labor is detrimental to workers because it makes it impossible for them to fight long hours, low wages, and other oppressive terms and conditions of employment. (145) When they cannot change those circumstances, workers become even more un-free. (146) Moreover, even when only some groups of workers toil under unwanted conditions, other workers' conditions may also suffer, bringing all workers' conditions down and limiting freedom to all. (147) As the Court stated:

 [T]he defense against oppressive hours, pay, working conditions, or
                 treatment is the right to change employers. When the master can
                 compel and the laborer cannot escape the obligation to go on, there
                 is no power below to redress and no incentive above to relieve a
                 harsh overlordship or unwholesome conditions of work. Resulting
                 depression of working conditions and living standards affects not
                 only the laborer under the system, but every other with whom his
                 labor comes in competition. (148)
                

In other words, and as Professor Archibald Cox long argued, when workers have "no power below" and employers "the incentive above" to prevent "a harsh overlordship or unwholesome conditions of work" workers are un-free and Congress should legislate under the Thirteenth Amendment to redress that problem. (149) The Constitutional ban on compulsory labor would thus justify labor protective legislation.

A constitutional right in favor of labor protection would buttress workers' rights by, for example, extending associational rights to domestic, agricultural, and other workers not currently covered by the NLRA, and could serve to reverse the practice of permanent strike replacements, as well as other rules that currently limit workers' protections in the U.S. (150) Therefore, the Thirteenth Amendment fits hand-in-glove for worker protection.

A Latin American jurist would likely agree with the view that a constitutional protection against involuntary servitude provides a basis to constitutionally legitimize labor protective legislation. In fact, the Thirteenth Amendment would essentially mandate such legislation from Congress and all federal laws must be read with that mandate in mind.

The Latin American jurist would also likely see the inherent protective principle in the Thirteenth Amendment. As we read above, unregulated and legally unprotected work is understood in the Latin America as a condition that easily lends itself to the commodification of labor--to the buying and selling of labor as a chattel or an article of trade. The authors would add that commoditized workers compete with each other to sell their labor, driving down their wages and accepting increasingly onerous terms, enabling exploitation, and adopting even slave-like working conditions, demonstrating the need for legal protection of work. The Thirteenth Amendment also protects human dignity, a concern equally important in Latin American work law. (151) In this fashion, a Latin American labor judge would naturally read a constitutional mandate for labor protections under the Thirteenth Amendment. With such a constitutional basis for work laws, interpretation of legal texts would find a much more solid footing in favor of workers.

But even without such a robust, constitutionalized reading of protection, as we will see below, U.S. work law statutes provide language in favor of worker protection. The constitutional anchor would lodge those protections more solidly in the U.S. legal landscape, but the statutes themselves also reflect a protective principle.

B. The Protective Principle in the FLSA

The FLSA is perhaps the federal work law statue that comes closer to reflect a protective principle in its plain text. Section 2 of the FLSA states that the main goal of the FLSA is to correct and eliminate commercial practices that perpetuate workers' substandard living conditions. (152) The purpose of said protections are to safeguard commerce from disruptions, obstructions and similar problems. (153) The FLSA attempts to fix these market failures by protecting workers. In fact, market failures are generally understood as necessary to justify labor market...