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From Labor Law to Employment Law: The Changing Politics of Workers’ Rights

Published online by Cambridge University Press:  11 April 2019

Daniel J. Galvin
Daniel J. Galvin*
Affiliation:
Northwestern University
*
Email: [email protected]
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Abstract

Over the past several decades, a new kind of labor politics has emerged in new venues (state and local levels), focusing on new governing institutions (employment laws), involving new strategies by labor unions, and featuring new organizational forms (“alt-labor”). The timing, form, and content of these developments have been powerfully shaped by the persistence of the increasingly outmoded but still authoritative national labor law, which has constrained and channeled the efforts of workers and their advocates to respond to growing problems. While the new institutions and organizations provide new substantive rights for workers and alternative vehicles for voice and collective action, the layering of these new forms alongside the old—without displacing the latter—has generated new problems without solving the problems produced by the ossification of labor law in the first place. Using novel empirical data and analysis, this article documents these changes, explores their causes, and considers their consequences for the changing politics of workers’ rights.

Type
Research Article
Information
Studies in American Political Development , Volume 33 , Issue 1 , April 2019 , pp. 50 - 86
Copyright
Copyright © Cambridge University Press 2019 

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Footnotes

Acknowledgments: I thank the Studies editors, the anonymous reviewers, and workshop participants at Columbia University, Northwestern's Institute for Policy Research, Syracuse University, and the University of Chicago for their helpful comments and suggestions. For comments on earlier drafts, I am grateful to Jeffrey Broxmeyer, Laura Bucci, Jacob Hacker, Alexander Hertel-Fernandez, Thomas Keck, Andrew Kelly, Bruce Miroff, Layna Mosley, Herschel Nachlis, Gretchen Purser, Kumar Ramanathan, Philip Rocco, Jason Seawright, Stephen Skowronek, Kathleen Thelen, and Chloe Thurston. I am most indebted to the indefatigable Aaron Gordon, Matthew Lacombe, and Warren Snead for their data construction and coding work and to Sean Diament and Mara Suttmann-Lea for their helpful research assistance. This work has been supported in part by award #77-18-02 from the Russell Sage Foundation and the W. K. Kellogg Foundation. Any opinions expressed are those of the author alone and should not be construed as representing the opinions of either foundation. The Institute for Policy Research and the Farrell Fellowship mentoring program in the Department of Political Science at Northwestern also provided valuable support.

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15. For example, Benjamin Sachs sees existing employment law as fostering and protecting collective action; both Kate Andrias's call for sectoral bargaining the public arena and David Madland's proposal to expand wage boards aim to strengthen or leverage employment laws (such as the minimum wage in the Fight for $15); Cynthia Estlund's self-regulation takes as its “impetus” the “public enforcement and private litigation” of employment law protections and rights. Even Seattle's effort to establish collective bargaining for independent contractors was explicitly designed to remedy their exclusion from local employment laws covering only “employees,” Charlotte Garden explains.

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17. This study focuses on state-level employment laws, but for a running inventory of local minimum wage ordinances, see UC Berkeley Center for Labor Research and Education, “Inventory of Local Minimum Wage Ordinances,” http://laborcenter.berkeley.edu/minimum-wage-living-wage-resources/inventory-of-us-city-and-county-minimum-wage-ordinances/. For a running inventory of local paid sick day laws, see National Partnership for Working Families, “Current Paid Sick Days Laws,” October 2018, http://www.nationalpartnership.org/research-library/work-family/psd/current-paid-sick-days-laws.pdf. For fair scheduling laws, see National Women's Law Center, “Workplace Justice: Recently Enacted and Introduced State and Local Fair Scheduling Legislation,” January 2017, https://nwlc.org/wp-content/uploads/2017/01/Fair-Scheduling-Report-1.30.17-1.pdf. States in which cities or counties had passed local ordinances by 2018 pertaining either to the minimum wage, paid sick days, or fair scheduling include: CA (33 cities or counties), NJ (13), WA (5), NM (4), IL (4), MD (3), MN (3), DC (2), ME (2), PA (2), TX (2), AZ (1), NH (1), NY (1)—thus roughly tracking the relative volume of state employment laws (see below). For more on these efforts in the context of “preemption” laws designed to strip local governments of authority to enact local employment laws, see Marni von Wilpert, “City Governments Are Raising Standards for Working People—and State Legislators Are Lowering Them Back Down,” Economic Policy Institute, Washington, DC, April 26, 2017, https://www.epi.org/publication/city-governments-are-raising-standards-for-working-people-and-state-legislators-are-lowering-them-back-down/.

18. Although the terms “labor law” and “employment law” are sometimes used interchangeably, legal scholars draw an important distinction between the two: whereas labor law focuses on collective bargaining, unionization, and other issues that may arise between groups of workers and their employer, employment law covers all other laws, regulations, and policies regarding individual workers’ rights and the relationship between the employer and the individual employee. By establishing minimum workplace standards (like the minimum wage, enforced through regulation) and individual rights and protections (like workers’ privacy rights, which may be vindicated in court), employment law uses the alternative delivery mechanisms of regulation and litigation to achieve many of the same objectives labor law seeks through collective bargaining: namely, boosting wages and regulating the terms and conditions of employment.

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36. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), 359 U.S. 236 (1959).

37. Sachs notes that these rulings still allow for the “private reordering” of organizing and bargaining rules and Andrias explains that they do not preempt the enactment of universally applicable employment legislation. Sachs, “Despite Preemption,” 1164–72; Andrias, “The New Labor Law,” 89–92. “Virtually banish” is from Estlund, “The Ossification of American Labor Law,” 1571, but also see pp. 1569–79. The key preemption cases after Garmon include: Lodge 76, International Association of Machinists Aerospace Workers, AFL-CIO, et al. v. Wisconsin Employment Relations Commission et al., 427 U.S. 132 (1976); Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986); Chamber of Commerce v. Brown, 128 S. Ct. 2408 (2008).

38. The Labor Management Relations Act of 1947 (known as the Taft-Hartley Act) allowed states to implement “right-to-work” laws banning fair share agency fees (triggering classic free-rider problems; see, e.g., Janus v. AFSCME, 2018); prohibited a wide range of strike activities; outlawed secondary boycotts and closed shops; codified the right of employers, within limits, to campaign against unionization and contest the legitimacy union elections; and authorized the executive branch to obtain strikebreaking injunctions. The Landrum-Griffin Act of 1959 prohibited “hot cargo” agreements and tightened the prohibition on secondary boycotts, outlawed recognitional picketing, altered internal union governance procedures, established union reporting requirements, and more, in the name of protecting union members from unfair practices by union leaders. Minor amendments in 1970 and 1974 placed the U.S. Postal Service under the NLRB's jurisdiction and expanded coverage to include employees of nonprofit hospitals and nursing homes, respectively. The NLRB also unilaterally expanded its reach to include major league baseball (1969), private nonprofit colleges and universities (1970), foreign-government-owned corporations doing business in the United States (1977), law firms (1977), and professional soccer (1978). Its purview was also expanded via new administrative rules in 1991 and 2014. Questions of coverage (and the definition of “employee” in nontraditional work arrangements) continue to be addressed by the NLRB to this day. See https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1536/NLRB%2080th%20Anniversary.pdf. On the key Court decisions, see Pope, “How American Workers Lost the Right to Strike, and Other Tales”; Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941”. For a fuller discussion, see Andrias, “The New Labor Law.”

39. Core features include the right to free association, self-organization, collective bargaining, and concerted action; the law's commitment to firm-level bargaining (the “employer-employee dyad”); its requirement that the union with majority support in a single bargaining unit serves as the “exclusive representative” of all workers in the same unit; its centralized regulatory structure and certification authority; the “mutual obligation” of employers and employees’ representatives to bargain; its negligible penalties for employer interference in union elections; and its nonuniversal coverage (e.g., exclusion of farmworkers). On “conversion,” see Kathleen Thelen, How Institutions Evolve; Hacker, Jacob S., “Policy Drift: The Hidden Politics of U.S. Welfare State Retrenchment,” in Beyond Continuity: Institutional Change in Advanced Political Economies, ed. Streeck, Wolfgang and Thelen, Kathleen (Oxford, UK: Oxford University Press, 2005), 40–82Google Scholar.

40. “Mismatch” is from Andrias, “The New Labor Law,” 6, 28, 78; see also Fine, “New Forms to Settle Old Scores,” 605.

41. Lichtenstein, State of the Union, 264. See also Weil, The Fissured Workplace; Van Wezel Stone, From Widgets to Digits; Sweet, Stephen A. and Meiksins, Peter, Changing Contours of Work: Jobs and Opportunities in the New Economy (Los Angeles: SAGE, 2017)Google Scholar; Warhurst, Christopher, Are Bad Jobs Inevitable? Trends, Determinants and Responses to Job Quality in the Twenty-First Century (New York: Palgrave Macmillan, 2012)Google Scholar.

42. On the failure of labor law reform in 1978, see Hacker and Pierson, Winner-Take-All Politics, 127–32. In these ways, labor law appears as a case of policy drift, which is “when institutions or policies are deliberately held in place while their context shifts in ways that alter their effects.” Hacker, Jacob S., Pierson, Paul, and Thelen, Kathleen, “Drift and Conversion: Hidden Faces of Institutional Change,” in Advances in Comparative-Historical Analysis, ed. Mahoney, James and Thelen, Kathleen (New York: Cambridge University Press, 2015), 180CrossRefGoogle Scholar; Hacker, “Privatizing Risk without Privatizing the Welfare State.”

43. Kate Bronfenbrenner and Tom Juravich, “The Impact of Employer Opposition on Union Certification Win Rates: A Private/Public Sector Comparison,” (Working Paper No. 113, Economic Policy Institute, Washington, DC, 1994), https://digitalcommons.ilr.cornell.edu/articles/19/.

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48. Lichtenstein, State of the Union, x.

49. On the strategic shifts of winners and losers in the context of “policy drift,” see Hacker et al., “Drift and Conversion,” 202–203.

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56. Bales, “A New Direction for American Labor Law,” 1876.

57. St. Antoine, “Labor and Employment Law in Two Transitional Decades,” 510; See also Andrias, “The New Labor Law”; St. Antoine also writes that the preceding “two decades have continued the shift of emphasis from labor law to employment law—from governmental regulation of union-management relations, with collective bargaining expected to set most of the substantive terms of employment, to the direct governmental regulation of more and more aspects of the employer-employee relationship.” St. Antoine, “Labor and Employment Law in Two Transitional Decades,” as quoted in Andrias, “The New Labor Law,” 8, n. 20.

58. St. Antoine, “Labor and Employment Law in Two Transitional Decades,” 495.

59. Bureau of Labor Statistics, “State Labor Legislation Enacted in [Previous Year],” Monthly Labor Review (1960–2014).

60. Executive orders, judicial rulings, ballot initiatives, and automatic updates (e.g., annual increase in minimum wage as a result of prior legislation) are excluded.

61. See, e.g., Epp, The Rights Revolution.

62. See, e.g., Brudney, James J., “Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms,” Iowa Law Review 90 (2005): 819–86Google Scholar; Estlund, “Rebuilding the Law of the Workplace in an Era of Self-Regulation”; Sachs, “Despite Preemption”; Secunda, Paul M., “Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States,” Comparative Labor Law and Policy Journal 29, no. 2 (2007–2008): 209–46Google Scholar.

63. Weir, Margaret, “States, Race, and the Decline of New Deal Liberalism,” Studies in American Political Development 19 (2005): 157–72 (quotation on p. 158)CrossRefGoogle Scholar.

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65. Richard B. Freeman, “Unionism and Protective Labor Legislation,” Industrial Relations Research Association, Proceedings (1986): 260–67, quote on p. 265. Freeman's analysis tests the “government substitution hypothesis” posited by Neumann, George R. and Rissman, Ellen R., “Where Have All the Union Members Gone?” Journal of Labor Economics 2 (1984): 175–92CrossRefGoogle Scholar, which is also tested and elaborated by Moore, William J. and Newman, Robert J., “A Cross-Section Analysis of the Postwar Decline in American Trade Union Membership,” Journal of Labor Research 9 (1988): 111CrossRefGoogle Scholar; William J. Moore, Robert J. Newman and Loren C. Scott, “Welfare Expenditures and the Decline of Unions,” The Review of Economics and Statistics (1989): 538–42; Coombs, Christopher K., “The Decline in American Trade Union Membership and the “‘Government Substitution’ Hypothesis: A Review of the Econometric Literature,” Journal of Labor Research 29 (2008): 99–113CrossRefGoogle Scholar.

66. Freeman's model took a snapshot of the relationship in 1985 and its dependent variable was the Southern Labor Institute's index of the “level of statutory protection of workers,” which measured the “total number of laws in the state in a selected group of common worker protection laws” in the summer of 1985. The model employed here uses the more fine-grained MLR data in a time-series cross-section analysis covering 1976–2013. Freeman's data was from the Southern Labor Institute, The Climate for Workers in the United States: A Study and Report by the Southern Labor Institute (Atlanta, GA: Southern Regional Council, August 29, 1986), Appendix IIGoogle Scholar.

67. Data from Hirsch and Macpherson, “Union Membership and Coverage Database from the Current Population Survey: Note.”

68. Freeman, “Unionism and Protective Labor Legislation.”

69. Coombs, “The Decline in American Trade Union Membership and the ‘Government Substitution’ Hypothesis.”

70. See e.g., Chen, Anthony S., The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972 (Princeton, NJ: Princeton University Press, 2009), 157Google Scholar.

71. Data compiled by the author. Source: American Legislators’ Association Council of State Governments, “The Book of the States” (Lexington, KY: Council of State Governments, 1935–2017), tallies of annual state legislative enactments.

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74. Chen, The Fifth Freedom, 158; Marc Dixon, “The Politics of Union Decline: Business Political Mobilization and Restrictive Labor Legislation, 1930 to 1960” (PhD diss., The Ohio State University, 2005), https://etd.ohiolink.edu/.

75. Driscoll, John C. and Kraay, Aart C., “Consistent Covariance Matrix Estimation with Spatially Dependent Panel Data,” Review of Economics and Statistics 80 (1998): 549–60CrossRefGoogle Scholar.

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77. Data limitations prevent the use of political contribution measures in the time-series cross-sectional models above. National Institute on Money in State Politics, “Contributions from the General Business Sector 1989–2014,” https://www.followthemoney.org/. See Marty P. Jordan and Matt Grossmann, The Correlates of State Policy Project v2.0 (East Lansing, MI: Institute for Public Policy and Social Research [IPPSR], 2016).

78. National Institute on Money in State Politics, “Contributions from the General Business Sector 1989–2014.” See Jordan and Grossmann, The Correlates of State Policy Project v2.0.

79. Walker, Alexis N., “Labor's Enduring Divide: The Distinct Path of Public Sector Unions in the United States,” Studies in American Political Development 28 (2014): 175–200CrossRefGoogle Scholar; Henry Farber, “Union Membership in the United States: The Divergence Between the Public and Private Sectors,” (Working Paper 503, Princeton University, Princeton, NJ); Anzia and Moe, “Do Politicians Use Policy to Make Politics?; Flavin, Patrick and Hartney, Michael T., “When Government Subsidizes Its Own: Collective Bargaining Laws as Agents of Political Mobilization,” American Journal of Political Science 59, no. 4 (2015): 896–911CrossRefGoogle Scholar; Hertel-Fernandez, “Policy Feedback as Political Weapon.”

80. Skocpol and Hertel-Fernandez, “The Koch Network and Republican Party Extremism”; Hertel-Fernandez, “Policy Feedback as Political Weapon”; Lafer, Gordon, The Legislative Attack on American Wages and Labor Standards, 2011–2012 (Washington, DC: Economic Policy Institute, 2013)Google Scholar.

81. See, e.g., Steve Peoples’ three-part series “Labor's Power Hangs in the Balance,” Providence Journal, June 8–10, 2008.

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84. Two independent researchers coded 5,531 laws enacted between 1973 and 2010, yielding 89 percent agreement and a Cohen's Kappa coefficient of 0.77, which Landis and Koch interpret as in the high end of the “substantial” agreement range (0.61-.80). Landis, Richard J. and Koch, Gary G., “The Measurement of Observer Agreement for Categorical Data,” Biometrics 33, no. 1 (1977): 159–174CrossRefGoogle ScholarPubMed.

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87. In their classic 1984 study, Freeman and Medoff found that although unions consistently failed to advance their own self-interests in legislative politics, they were far more effective in amplifying “the voice of workers and the lower income segments of society” more broadly. Freeman and Medoff, What Do Unions Do?; Rosenfeld, What Unions No Longer Do; Western and Rosenfeld, “Unions, Norms, and the Rise in U.S. Wage Inequality.”

88. On Gompers, see Greene, Julie, Pure and Simple Politics: The American Federation of Labor, 1881 to 1917 (Cambridge, UK: Cambridge University Press, 1998)CrossRefGoogle Scholar. On the “government substitution hypothesis, see Neumann and Rissman, “Where Have All the Union Members Gone?”; Moore and Newman, “A Cross-Section Analysis of the Postwar Decline”; Moore et al., “Welfare Expenditures and the Decline of Unions”; Coombs, “The Decline in American Trade Union Membership and the ‘Government Substitution’ Hypothesis”; Freeman, “Unionism and Protective Labor Legislation”; Hauserman, Nancy R. and Maranto, Cheryl L., “The Union Substitution Hypothesis Revisited: Do Judicially Created Exceptions to the Termination-at-Will Doctrine Hurt Unions,” Marquette Law Review 72, no. 3 (1988): 317Google Scholar; Bennett, James T. and Taylor, Jason E., “Labor Unions: Victims of Their Political Success?” Journal of Labor Research 22 (2001): 261CrossRefGoogle Scholar.

89. Coombs, “The Decline in American Trade Union Membership and the ‘Government Substitution’ Hypothesis; Freeman, “Unionism and Protective Labor Legislation.”

90. As Moore et al., “Welfare Expenditures and the Decline of Unions,” write (p. 539), “Charles McDonald, Director of the Department of Organization, AFL-CIO, expressed relief, but not surprise, that these studies provided evidence refuting the government substitution hypothesis. He noted, however, that even if the evidence had supported that hypothesis, the AFL-CIO would continue to support social welfare legislation that aided the working men and the poor in this country.”

91. Kau, James B. and Rubin, Paul H., “Self-Interest, Ideology, and Logrolling in Congressional Voting,” The Journal of Law and Economics 22 (1979): 365–384CrossRefGoogle Scholar; Freeman and Medoff, What Do Unions Do?

92. Jacobs and Smith, “State and Local Policies and Sectoral Bargaining.”

93. Andrias, “The New Labor Law,” 128.

94. Voss, Kim, The Making of American Exceptionalism: The Knights of Labor and Class Formation in the Nineteenth Century (Ithaca, NY: Cornell University Press, 1993)Google Scholar; Boyle, The UAW and the Heyday of American Liberalism; Lichtenstein, State of the Union, 294.

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99. See, e.g., Voss and Sherman, “Breaking the Iron Law of Oligarchy”; Milkman and Voss, Rebuilding Labor; Oswalt, “Improvisational Unionism.”

100. Weil, The Fissured Workplace; Sweet and Meiksins, Changing Contours of Work.

101. Pollin, Robert and Luce, Stephanie, The Living Wage: Building a Fair Economy (New York: New Press, 1998)Google Scholar; Lichtenstein, State of the Union; Voss, Kim and Bloemraad, Irene, Rallying for Immigrant Rights: The Fight for Inclusion in 21st Century America (Berkeley: University of California Press, 2011)CrossRefGoogle Scholar.

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103. Daniel J. Galvin, “Labor's Legacy: The Construction of Subnational Work Regulation,” IPR Working Paper Series (WP-19-01), https://www.ipr.northwestern.edu/publications/papers/2019/wp-19-01.html.

104. Rosenfeld et al., “Union Decline Lowers Wages of Nonunion Workers”; Western and Rosenfeld, “Unions, Norms, and the Rise in U.S. Wage Inequality.”

105. Another important and relatively durable effect that has received less attention is the support and nourishment provided by private-sector labor unions, like the UAW, to public-sector unions like the American Federation of Teachers. See Goldfield, Michael, “Public Sector Union Growth and Public Policy,” Policy Studies Journal 18 (1989): 404–20CrossRefGoogle Scholar.

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108. Luce et al., What Works for Workers?; Milkman and Ott, New Labor in New York; Milkman et al., Working for Justice.

109. Fine, Janice and Theodore, Nik, Worker Centers 2012: Community Based and Worker Led Organizations (Washington, DC: Center for Faith-Based and Community Partnerships, U.S. Department of Labor, 2012)Google Scholar, https://smlr.rutgers.edu/news/worker-centers-community-based-and-worker-led-organizations. Also: http://utwsd.org/wp-content/uploads/2013/09/Center_and_ForeignBorn_2012_orange_layout_current.png

110. Section 7 covers “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. §§ 151–169. In addition to their policy advocacy work, many worker centers “engage in some sort of direct service provision.… Whether providing language classes, employment and training programs, adult education, transportation supports, soft skills workshops, “know your rights” workshops, or a range of legal services, organizations devote a significant amount of their time and resources to understanding the direct service needs of their members and constituents, developing service strategies and programs, and securing resources and partnerships to deliver them.” Quote from Cordero-Guzmán, Héctor R., Izvănariu, Pamela A., and Narro, Victor, “The Development of Sectoral Worker Center Networks,” The Annals of the American Academy of Political and Social Science 647 (2013): 102–23CrossRefGoogle Scholar. Also see Fine, Worker Centers.

111. Fine, Worker Centers; Fine, “New Forms to Settle Old Scores”; Fine and Theodore, Worker Centers 2012; Interfaith Worker Justice, http://www.wagetheft.org/find-a-worker-justice-organization.

112. Fine, “New Forms to Settle Old Scores,” 607, 615.

113. Galvin, “Deterring Wage Theft.”

114. “Current and Pending Wage Theft Legislation,” http://www.wagetheft.org/local-and-state-legislation/. Also see Doussard and Gamal, “The Rise of Wage Theft Laws.”

115. Boris, Eileen and Klein, Jennifer, Caring for America: Home Health Workers in the Shadow of the Welfare State (New York: Oxford University Press, 2015)Google Scholar.

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117. Rolf, David, The Fight for Fifteen: The Right Wage for a Working America (New York: The New Press, 2016)Google Scholar; Luce, Stephanie, “$15 Per Hour or Bust: An Appraisal of the Higher Wages Movement,” New Labor Forum 24 (2015): 72–79CrossRefGoogle Scholar.

118. Andrias, “The New Labor Law,” 47–51, quote from Steven Greenhouse, “Movement to Increase McDonald's Minimum Wage Broadens Its Tactics,” The New York Times, March 30, 2015.

119. Dave Jamieson, “Labor Critic Claims Union Behind the ‘Fight for $15’ Cut Funding for Fast-Food Campaigns,” Huffington Post, March 21, 2018.

120. National Employment Law Project, “Impact of the Fight for $15: $68 Billion in Raises, 22 Million Workers,” November 2018 (https://s27147.pcdn.co/wp-content/uploads/Data-Brief-Impact-Fight-for-15-2018.pdf).

121. Fight for $15, “Democratic Party Adopts $15 National Minimum Wage to Party Platform,” https://fightfor15.org/democratic-party-adopts-15-national-minimum-wage-to-party-platform/. Michelle Chen, “The Story Behind the Immigrant Workers in Bernie Sanders’ Stirring New Ad Lauding Worker Organizing,” In These Times, March 9, 2016.

122. In which tens of thousands of unionized and non-unionized teachers went on strike in many unlikely places including West Virginia, Kentucky, Arizona, and North Carolina, where teachers lack collective bargaining rights and strikes are prohibited.

123. Kimberley M. Sanchez Ocasio and Leo Gertner, “Fighting for the Common Good: How Low-Wage Workers’ Identities are Shaping Labor Law,” The Yale Law Journal Forum, April 19, 2017. Quotation from Joseph A. McCartin, “Bargaining for the Common Good,” Dissent (Spring 2016). Also see Rachel Abrams, “McDonald's Workers Across the U.S. Stage #MeToo Protests,” The New York Times, September 18, 2019; Steven Greenhouse, “The Return of the Strike,” The American Prospect, January 3, 2019; Carolyn Thompson, “Teachers Succeed by Framing Strikes as for Common Good,” Associated Press, January 26, 2019.

124. Sanchez Ocasio and Gertner, “Fighting for the Common Good.”

125. Ibid., 510.

126. Sanchez Ocasio and Gertner, “Fighting for the Common Good,” quoting Gabrielle Hatcher in Willa Frej, “These are the Faces of the Fight for 15 Movement,” Huffington Post, November 10, 2015.

127. John Nichols, “The Alexandria Ocasio-Cortez Effect,” The Nation, August 15, 2018; Ed Morales, “Alexandria Ocasio-Cortez is the Intersectional Remix of Latino Roots and Socialist Politics,” The Washington Post, June 29, 2018; Kalena Thomhave, “The Coming Progressive Agenda for Workers’ Rights,” The American Prospect, August 31, 2018; Jane McAlevey, “Three Lessons for Winning in November and Beyond,” The New York Times, October 10, 2018.

128. Michelle Chen, “The Story Behind the Immigrant Workers in Bernie Sanders’ Stirring New Ad Lauding Worker Organizing,” In These Times, March 9, 2016.

129. Bales, “A New Direction for American Labor Law”; Bales, “The Discord between Collective Bargaining and Individual Employment Rights”; Van Wezel Stone, “The Legacy of Industrial Pluralism,” 596; also see Staszak, Sarah L., No Day in Court: Access to Justice and the Politics of Judicial Retrenchment (New York: Oxford University Press, 2015)CrossRefGoogle Scholar.

130. Bales, “The Discord between Collective Bargaining and Individual Employment Rights,” 690.

131. Van Wezel Stone, “The Legacy of Industrial Pluralism,” 638.

132. Neumann and Rissman, “Where Have All the Union Members Gone?”; see also Coombs, “The Decline in American Trade Union Membership and the ‘Government Substitution’ Hypothesis”; Moore et al., “Welfare Expenditures and the Decline of Unions”; Moore and Newman, “A Cross-Section Analysis of the Postwar Decline,” 111; Freeman, “Unionism and Protective Labor Legislation”; Hauserman and Maranto, “The Union Substitution Hypothesis Revisited.”

133. Orren, Belated Feudalism.

134. Ibid., 128.

135. Frymer, Black and Blue.

136. Weiler, Governing the Workplace.

137. Berrey, Ellen, Nelson, Robert L., and Nielsen, Laura Beth, Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality (Chicago: University of Chicago Press, 2017)Google Scholar.

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139. Galvin, “Deterring Wage Theft.”

140. Weil, The Fissured Workplace, pp. 22, 217.

141. Oswalt, “Improvisational Unionism.” “They have embraced innovations like union organizing without the union organizers, collective action for the sake of collective action, and strikes by courageous but tiny contingents, accepting all the while that what everything might add up to is ultimately uncertain and that mistakes, perhaps big mistakes, will be made. But what in colloquial terms feels like spitballing, and in cynical terms looks like throwing activism at the wall to see what sticks, deserves a more elegant—and theoretical—frame. I label the phenomenon improvisational unionism” (p. 603).

142. Harold Meyerson, “The Seeds of a New Labor Movement,” The American Prospect (Fall 2014), https://prospect.org/article/labor-crossroads-seeds-new-movement.

143. Aaron Gupta, “Fight for 15 Confidential.” In These Times, November 11, 2013.

144. Meyerson, “The Seeds of a New Labor Movement.”

145. See, e.g., McAlevey, Jane, No Shortcuts: Organizing for Power in the New Gilded Age (New York: Oxford University Press, 2016)CrossRefGoogle Scholar.

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148. Shayna Strom, “Organizing's Business Model Problem,” The Century Foundation, October 26, 2016, https://tcf.org/content/report/organizings-business-model-problem/.

149. Steven Greenhouse, “Fast-Food Workers Claim Victory in a New York Labor Effort,” New York Times, January 9, 2017.

150. Meyerson, “The Seeds of a New Labor Movement”; Cora Lewis, “As Gawker Unionizes, Labor Adapts,” June 4, 2015, https://www.buzzfeednews.com/article/coralewis/gawker-labor-movement-adapts-to-post-union-world.

151. Kate Andrias and Brishen Rogers, “Rebuilding Worker Voice in Today's Economy,” Roosevelt Institute August (2018); Andrias, “The New Labor Law”; Andrias, “Social Bargaining in States and Cities.” And see “Forum Collection: Reactions to Kate Andrias, The New Labor Law,” Yale Law Journal 126 (2016–2017), https://www.yalelawjournal.org/collection/reactions-to-kate-andrias-the-new-labor-law; also Oswalt and Marzán, “Organizing the State.”

152. Sharon Block and Benjamin Sachs, “Is it Time to End Labor Preemption?” September 11, 2017. https://onlabor.org/is-it-time-to-end-labor-preemption/. Papers here: https://lwp.law.harvard.edu/event/labor-law-reform-symposium.

153. Sharon Block and Benjamin Sachs, “This Labor Day, a Clean Slate for Reform,” September 3, 2018, ONLABOR: Workers, Unions, Politics website, https://onlabor.org/this-labor-day-a-clean-slate-for-reform/.

154. The Clean Slate Project, featuring over eighty participants, identified six necessary ingredients of a twenty-first-century labor law: (1) consider sectoral or industrial-level collective bargaining, (2) design legal reforms and workable revenue models to make it easier for unions to organize and for a wider range and richer variety of workers’ organizations to form and thrive; (3) revise labor law to allow workers to treat networked firms as singular entities for the purposes of collective actions such as strikes, pickets, and boycotts; (4) give workers’ organizations responsibility for providing benefits and a greater role in enforcing employment laws; (5) revise interconnected laws like antitrust laws, corporate law, and election law; and (6) build workers’ collective power in ways that are responsive to persistent racial and gender disparities. See “Clean Slate Project,” Labor and Worklife Program, Harvard Law School, Cambridge, MA, Harvard University, https://lwp.law.harvard.edu/clean-slate-project.

155. Dylan Matthews, “The Emerging Plan to Save the American Labor Movement,” Vox, September 3, 2018, https://www.vox.com/policy-and-politics/2018/4/9/17205064/union-labor-movement-collective-wage-boards-bargaining.

156. As Orren and Skowronek have written, “Specifying sites historically underscores the fact that no political transformation is complete, that even violent revolutions leave traces of earlier regimes, and that nothing follows on a clean slate. APD [American political development] assumes that development occurs on sites that are more or less changeable but never empty, nonexistent, or inconsequential,” Orren and Skowronek, The Search for American Political Development, 22.

157. Orren and Skowronek, The Search for American Political Development, 11–12.

158. See, e.g., von Wilpert, “City Governments Are Raising Standards for Working People.”

159. Colvin, “The Growing Use of Mandatory Arbitration”; Staszak, No Day in Court.

160. Gao, “What's Next for Forced Arbitration?”

161. As discussed above. For a useful summary of recent initiatives, see Matthews, “The Emerging Plan to Save the American Labor Movement”; also Block and Sachs, “Is it Time to End Labor Preemption?”

162. Lichtenstein, “Why Labor Moved Left.”

163. Sachs, “Employment Law as Labor Law”; Fine, Janice, “Solving the Problem from Hell: Tripartism as a Strategy for Addressing Labour Standards Non-Compliance in the United States,” Osgoode Hall Law Journal 50 (2013): 6–36Google Scholar; Fine, Janice, Co-Production: Bringing Together the Unique Capabilities of Government and Society for Stronger Labor Standards Enforcement (San Antonio, TX: LiftFund, 2015)Google Scholar, http://theliftfund.org/wp-content/uploads/2015/09/LIFTReportCoproductionOct_ExecSumm-rf_4.pdf; Fine and Gordon, “Strengthening Labor Standards”; and on resource and interpretive effects, see Pierson, “When Effect Becomes Cause.”

164. Milkman, “Back to the Future?”

165. Fine, Worker Centers, Galvin, “Deterring Wage Theft.”

166. As discussed above. Also see Clawson, Dan, The Next Upsurge: Labor and the New Social Movements (Ithaca, NY: ILR Press, 2003)Google Scholar.