Working (with) workers: implementing theory.

• Author: Cherry, Miriam A.

1. INTRODUCTION

   The topic of this symposium issue sponsored by the Association of American Law Schools (AALS) is the role of the labor and employment law professor as a public intellectual. Despite the baggage accompanying the phrase "public intellectual," the symposium topic is an important one, for the term carries more meaning than a mere "talking head" or "media figure" can express. (2) To make theoretical ideas more accessible to others, to connect theory and practice, to explain academic or scholarly ideas in a way that the public can understand--these ideas resonate with my philosophy of the law professor's role. In fact, this is the essence of what we strive for as labor and employment law professors, and, to that end, this piece concludes with some advice for others who, like me, are relative newcomers to the academy.

   This article concentrates on what I believe can be a fruitful collaboration between labor and employment law professors and groups (worker centers) that provide educational, financial, and technical legal assistance to workers. While I have written some op-ed pieces about worker rights and have written for several law professor web logs about employment law topics, these activities are more about educating the public than any sort of yearning for public recognition. (3) This discussion begins with several key assumptions, none of which are particularly radical. The first assumption is that most employment law professors ground their discussion of the law in the experiences of workers and management. The second assumption is that most--if not all--law professors have a desire to reform labor and employment laws in ways that promote the well-being of workers while at the same time allowing businesses and entrepreneurs to maintain a competitive advantage. (4)

   Within these broad parameters, there is room for law professors to become more involved with worker groups. One of the major concerns in the labor and employment field is that many workers lack a basic perception of employment law. For example, Professor Pauline Kim has empirically documented that many workers do not understand the at-will employment doctrine and believe that as long as they perform their duties appropriately, their employment will continue. (5) Others believe that they will be given an opportunity to improve their performance and fair warning if they are to be terminated. If protocol is not followed or employers do not provide fair warning, workers who do not understand the law and feel that they have been treated unfairly look for someone to blame. (6) Regardless of ideology, most labor lawyers agree that a fundamental lack of awareness of the law is neither fair nor efficient for workers or employers.

   Although worker education projects are typically seen as a domain of plaintiff-side attorneys, worker rights education benefits everyone in the field. Law professors can certainly assist in this endeavor by educating the public about their rights, becoming more involved with worker advocacy groups, educating businesses about the law, and implementing novel theoretical structures. These opportunities are excellent ways for law professors to give back to their surrounding communities, which is the essence of the service requirement that many law schools implement for their professors. These efforts allow a professor to participate in the "public intellectual" domain of law. This educational component should be a part of every labor and employment professor's work.

2. THE VALUE OF WORKER CENTERS

   How can these goals--especially those involving worker rights--best be effectuated in an era when labor unions are declining? (7) Some suggestions for reviving collective action include ensuring transparency in union elections, expanding into new sectors, and attempting different organizing techniques. (8) Some commentators have suggested that organizing around workplaces may be on the decline because the nature of work has changed, with employees moving horizontally among employers. In response to the increasingly transitory nature of work, commentators have proposed alternatives. For example, Professor Katherine V.W. Stone contemplates the idea of a union organized not by industry or type of work, but rather by geographical area. (9)

   Another strategy is to foster, encourage, and consult with worker centers that provide technical and financial assistance. These worker centers usually assist low-wage or immigrant workers, the most underserved and vulnerable groups. Indeed, immigrant workers face even more difficulties in the wake of Hoffman Plastic Compounds, Inc. v. NLRB. (10) For example, the downturn in the housing market has left many immigrant workers in the construction industry uncompensated for time worked. (11) Afraid of being deported or otherwise retaliated against, they are often hesitant to bring their claims to government authorities. (12)

   Over 140 worker centers exist nationwide, and many are organized according to a particular industry or a shared ethnicity, while others are organized based on geography. (13) According to Janice Fine, these diverse organizations draw from the roots of earlier enterprises, including groups from "social service agencies, fraternal organizations, settlement houses, community organizing groups, and unions to social movement...