ARTICLE CONTENTS INTRODUCTION I. LABOR LAW'S DECLINE AND FAILED REVIVAL A. The NLRA 1. From Wagner to Taft-Hartley: The System of Decentralized, Private Representation and Bargaining 2. Economic Restructuring, Law, and Deunionization 3. Labor Law and Politics B. Employment Law: Distinct and Insufficient C. Efforts at Renewal 1. Resuscitation 2. Abandonment II. THE CONTOURS OF A NEW LEGAL FRAMEWORK A. Evolution of the Movement: From McDonald's, to Fast Food, to Low-Wage B. The Standard Account: Minimum Wages and Employment Standards C. A New Unionism 1. From Workplace to Sector 2. From Private to Social 3. Conclusion: Blurring the Employment/Labor Distinction; the Broader Social Movement; and the Uncertain Future of Worksite Representation III. THE CASE FOR THE NEW LABOR LAW A. Weaknesses of the Emerging Regime B. A Qualified Defense IV. DEVELOPING THE NEW LABOR LAW A. A Legal Framework for Social Bargaining 1. Expanding Local and State Sectoral Bargaining 2. The Problems of Home Rule and Preemption B. Building Sustainable Worksite Organization 1. Social Bargaining as a Complement to Exclusive Bargaining Agreements 2. New Funding Mechanisms 3. Worksite Representation and Alternative Forms of Worker Voice CONCLUSION INTRODUCTION
American labor unions have collapsed. (1) While they once bargained for more than a third of American workers, unions now represent only about a tenth of the labor market and even less of the private sector. (2) In the process, the United States has lost a core equalizing institution in politics and the economy. (3) Employment law, which protects employees on an individual basis irrespective of unionization, has not filled the void. (4) Economic inequality is at its highest point since the Gilded Age, when unionization rates were similarly low. (5) Workers have declining influence not only in their workplaces, but also in policymaking at the state and federal levels. (6)
For several reasons, current law offers little hope for reversing the trend. (7) The familiar explanation, and the focus of most attempts at labor law reform, is that the National Labor Relations Act's (NLRA) weak enforcement mechanisms, slight penalties, and lengthy delays--all of which are routinely exploited by employers resisting unionization-fail to protect workers' ability to organize and bargain collectively with their employers. (8) But two other factors are perhaps even more important to labor law's failure to protect workers' right to organize and bargain in ways that help redistribute both economic and political power. First, the NLRA, with its emphasis on firm-based organizing and bargaining, is mismatched with the globalized economy and its multiple layers of contracting. (9) Indeed, these "fissured" corporate structures were adopted by employers in part to reduce labor costs and diminish the potency of the NLRA and employment law. (10) Second, the NLRA was never designed to ensure the vast majority of workers significant influence over the economy or politics. (11) Unlike legal regimes prevalent in Europe, the NLRA does not empower unions to bargain on behalf of workers generally, nor does it provide affirmative state support for collective bargaining. (12) Instead, it establishes a system of voluntaristic, decentralized unionism: collective bargaining is a private negotiation between individual employers and employees at worksites where a majority has chosen to unionize. (13)
Some scholars have suggested ways to mend the old regime. (14) But their proposals do not solve the basic problem: labor law, developed during and after the New Deal, has been rendered inapt by contemporary managerial strategies and fails to provide tools capable of redressing today's inequities. Recognizing these limitations, many of labor's proponents have abandoned the project of labor law altogether, concluding that unionism in the contemporary political economy is hopeless. (15)
But the demise of the twentieth-century labor law regime is not the end of the road for the rights and interests of working people. Since 2012, over two dozen states and many more localities have raised their minimum wages. (16) Several of these, including California and New York, have enacted increases to $15 an hour--nearly $8 an hour more than the federal minimum--to be phased in over time. (17) Just a few years ago, increases of this scope and magnitude would have been unthinkable. (18) The wage laws have been accompanied by new regulations providing scheduling protection, sick time, and other benefits. (19)
At first glance, these seem to be ordinary state and local employment statutes, separate and apart from the law that governs collective activity by workers. (20) But the sea change comes in response to a range of worker movements, especially the "Fight for $15," a campaign of low-wage workers organized by the Service Employees International Union (SEIU). (21) The express goal of these campaigns is not just higher wages but also "a union" (22) And many of the new laws they have won are a product of bargaining, either formal or informal, among unions, employers, and the state. (23)
From the efforts of these social movements, the outline of a new labor law is emerging. That outline is nascent and contested; chances of success are uncertain at best, and the specifics of what success would look like are far from clear. But from the social movements' efforts one can derive a path toward a new labor law regime that is distinct from, even oppositional to, the legal regime that has governed since the New Deal. The new labor law would combine social bargaining--i.e., bargaining that occurs in the public arena on a sectoral and regional basis--with both old and new forms of worksite representation. It is a more inclusive and political model of labor relations, with parallels to regimes in Europe and elsewhere. (24) And it has the potential to salvage and secure one of labor law's most fundamental commitments: to help achieve greater economic and political equality in society. (25)
The new labor law promises several important changes. First, it would reject the old regime's commitment to the employer-employee dyad. (26) It would locate decisions about basic standards of employment at the sectoral, industrial, and regional levels, rather than at the level of the individual worksite or employer. Second, the new labor law would reject the principle of private ordering that was cemented in the years following the New Deal, under which labor negotiations are a private affair and the state plays a neutral and minimal role. (27)
Instead, the new labor law would position unions as political actors representing workers generally and would involve the state as an active participant in supporting collective bargaining--in a system I will term "social bargaining," but which is also known as "tripartism" or "corporatism." (28) Third, and related to the first two moves, the new labor law would reject the bifurcation between employment law and labor law that has governed since the New Deal by rendering the basic terms of employment for all workers subject to social bargaining. (29) Finally, the new labor law would maintain a role for worksite representation-but it would do so through a wider range of forms, not all of which would entail exclusive union representation.
In an important sense, the new labor law is not, in fact, new. It is a reinterpretation of principles advanced by earlier incarnations of the American labor movement (30) and embraced by systems abroad. (31) But support for a system of labor law that empowers unions to bargain on behalf of all or most workers,...