Worker Centers and Labor Law Protections: Why Aren't They Having Their Cake? (original) (raw)

Worker Centers: Labor Policy as a Carrot, not a Stick

Harvard Law & Policy Review, 2019

Worker centers empower communities of workers that are challenging for labor unions to organize. This includes immigrant workers and other vulnerable workers in high turnover jobs. These centers often organize workers that fall within the definition of “employee” under the Depression-era laws designed to protect some forms of collective worker activity from employer retaliation. Although employees associated with these centers can benefit from labor law’s carrot, worker centers are not “labor organizations” subject to labor law’s vast reporting requirements and restrictions on associational behavior (labor law’s stick). We use an original study of worker centers’ filings to the Internal Revenue Service to reveal that worker centers are more similar to nonprofits, than labor organizations. Both First Amendment and labor law principles affirm the characterization of worker centers as organizations that are not subject to labor law’s stick. Providing worker centers access to labor law’s carrot, but not its stick, is particularly compelling given that they are operating at a historical moment when income inequality parallels New Deal levels and hostility to worker organizations and workers’ rights is pervasive. Our carrot-but-not-a-stick approach has implications for the vitality of American labor policy. It opens up space for emerging worker centers to expand their efforts to amplify employee voice and improve the working lives of the growing low-wage workforce.

The Worker Center Movement and Traditional Labor Law: A Contextual Analysis

Berkeley Journal of Employment and Labor Law, 2009

Adjudicators and scholars have yet to work out the labor law implications of an emerging form of worker-advocacy organization-the worker center. Today, over 160 worker centers in the United States assist lowwage, often immigrant workers by providing legal and other services, advocating on their behalf through publicity and legislative campaigns, and organizing them to take action for economic and political change. While many worker centers seek to vindicate employment rights and may target employers, they generally avoid bargaining with employers. This Article explores how traditional labor laws, primarily the National Labor Relations Act (NLRA) and the Labor Management Reporting and Disclosure Act (LMRDA), should apply to worker centers. While worker centers can use labor law's protections for any workers who qualify as statutory employees, it is less clear whether the law's restrictions on union activities-such as prohibitions on secondary boycotts and intensive reporting requirements, which apply to statutorily-defined "labor organizations "-should apply to worker centers. Whether a worker center should be considered a "labor organization" depends on its particular activities. The Article suggests a framework that analyzes worker center activity through three lenses: a traditional statutory analysis based on section 2(5) of the NLRA and section 2(5) case law, a contextual analysis based on the policies that animate different parts of the NLRA, and a purposive analysis that considers constitutional concerns in regulating associational activity that may merit First Amendment protection. The Article applies this threetiered framework to four worker centers that exemplify different aspects of the worker center movement, in order to determine which worker center activities are most likely to confer "labor organization" status. Viewed through all three lenses, labor law regulation of most worker centers is unlikely, so long as the centers do not seek to directly bargain with employers over working conditions. Worker centers may also avoid becoming "lat Law Fellow, Service Employees International Union. Boalt Hall, J.D., 2006. 1 thank David Rosenfeld for helping me think through many of the ideas in this Article, Alan Hyde and Tom Fritzsche for their thoughtful comments on earlier drafts, and Sara Flocks, Saru Jayaraman, Yungsuhn Park, and Hillary Ronen for sharing their experiences of the worker center movement with me. I'm also grateful to Ilana Waxman for her careful reading, suggestions, and encouragement. This article was supported by the University of California Labor and Employment Research Fund.

New Forms to Settle Old Scores: Updating the Worker Centre Story in the United States

Articles, 2011

Worker centres are community-based mediating institutions that organize, advocate and provide direct support to low-wage workers. Moving into the void left by the decline of labour unions, local political parties and other groups, these centres are addressing issues that low wage, largely immigrant workers face at the workplace. In 1992, there were five such organizations, but by 2003, there were at least 137 worker centres in the United States rooted in communities where immigrant populations had settled. I estimate there to be more than 200 worker centres in 2011. Worker centres attract labourers who are often the hardest-to-organize and, because the organizations are unencumbered by the Wagner Act and subsequent Taft Hartley amendments which stripped unions of some of their most potent tactics, they can sometimes act as “organizing laboratories” creating and testing new and innovative strategies. Centres have had some significant organizing and public policy successes and have pl...

Alternative labour protection movements in the United States: Reshaping industrial relations?

International Labour Review, 2015

The United States is one of the developed countries that have experienced the steepest declines of unionization and collective bargaining in recent decades. Its traditional industrial relations institutions, premised on the prevalence of “standard” employment relationships, have long been eroded by restrictive legislation and employer opposition. Meanwhile, precarious employment, sub‐standard conditions and marginalization have become widespread features of the labour market, leading to the spontaneous emergence of alternative, often community‐based initiatives to protect vulnerable workers using highly innovative strategies. “Worker centres”, in particular, have been very active to that end, often teaming up with formal trade unions to pursue their objectives.

The Worker Center Movement and Traditional Labor Laws

Labor and Employment Research Fund, 2007

The workers at Daniel, an upscale restaurant in Manhattan, believed their employer was violating the law. They complained of numerous wage and hour violations and also believed the employer had engaged in unlawful discrimination, sexual harassment, and retaliation. They approached a nonprofit organization that assists restaurant workers, who in turn contacted several lawyers who believed the workers might have a colorable legal claim. Together with the nonprofit, the workers decided to file suit. However, the nonprofit first sought to address the problem outside of the courts. Before initiating the lawsuit or engaging in any protest activity, the organization drafted a demand letter with a request to meet with the management of the restaurant. With the possibility of settling the issue and avoiding litigation, the restaurant agreed. At the meeting, the nonprofit presented a list of demands that had been generated by the Daniel workers in meetings with the nonprofit. True to its mission, the nonprofit sought to reach a solution with the employer that would improve the conditions of all of its workers, not merely those who initially raised the complaints. Therefore, in addition to back pay for the complaining workers, the nonprofit put forth a comprehensive proposal, which included: wage increases for bussers, a promotion policy, installation of a punch card system for "back of the house" employees, sick days, the posting of labor laws, training of the Employer as to labor laws, a uniform allowance, a sexual harassment policy, the development of a procedure for dealing with managers under the influence of a substance, a progressive discipline policy, a grievance procedure, a seniority provision for bussers, and an "on-call" system. The proposed agreement went further, with two features meant to assure compliance with the agreement. First, the agreement specified that in the event of a planned discharge, the employer must give the worker center three days notice so that they may assess whether the motive is prohibited retaliation. Second, either party has the right to take disputes over compliance with the agreement to arbitration by a third party during the effective period of the settlement. The nonprofit and restaurant met numerous times in order to hash out an agreement. But Daniel rejected their offer, and things got ugly. 1 The nonprofit organized demonstrations near the entrances to the restaurant, in which workers chanted, made noise, passed out handbills, carried picket signs, and displayed a giant inflatable cockroach. The protests lasted for many weeks. The employer, for its part, sought legal action. But it didn't go to a court of law-it went to the National Labor Relations Board (NLRB). Their contention? That the organization in question, the Restaurant Opportunities Center of New York (ROC-NY) was a "labor organization" under the National Labor Relations Act (NLRA), and that its activities constituted a union unfair labor practice-picketing the employer with the goal of obtaining voluntary recognition without filing an election petition within a reasonable period of time, under NLRA Section 8(b)(7)(C). 2 But ROC-NY was not a union. Although the Hotel and Restaurant Employees Union (HERE) Local 100 had played a role in the formation of the organization, and ROC-NY had initially received several contributions from the union's charitable arm, it did not itself engage in collective bargaining or seek to certify itself as the exclusive representative of workers under the Act. 1 A final settlement was eventually reached based on an agreement substantially similar to the one described above.

Worker centers: Organizing communities at the edge of the dream

2006

Many people in numerous organizations helped me with this book. To promote a better understanding among funders, labor unions, public policy-makers, and worker centers, the Neighborhood Funders Group, in partnership with the Economic Policy Institute, commissioned the study that is the basis of this book. The wonderful and dedicated staff, leaders, and members of the worker centers I studied gave generously of their time in order to enrich my understanding of how the people involved in worker centers think about their work and carry it out. I want to especially thank the following:

A Marriage Made in Heaven? Mismatches and Misunderstandings between Worker Centres and Unions

British Journal of Industrial Relations, 2007

Worker centres, community-based mediating institutions that provide support to low-wage workers in the United States, have grown from five in 1992 to 160 in 2007. With unions increasingly targeting low-wage immigrant workers employed in non-footloose industries for organizing drives, it would seem that worker centres and unions are a match made in heaven. On the ground, however, it has been more of a mismatch. This article examines the underlying sources of the mismatch embodied in the structures, ideologies and cultures of worker centres and unions.

Repurposing American Labor Law

Politics & Society, 2014

The National Labor Relations Act (NLRA) of 1935 has been widely portrayed as an anachronistic piece of legislation that needs to be reformed or abandoned. In the absence of reform, many US labor unions try to avoid the NLRA process altogether by organizing workers outside the confines of the law. But Somos un Pueblo Unido, or “Somos,” a worker center in New Mexico, has been using a novel interpretation of the NLRA less to boost union density than to develop an alternative to contract unionism. By helping nonunionized workers use Section 7 of the NLRA to act concertedly in their own defense, I argue, Somos is combating employer abuse, in the short run, and demonstrating that worker centers and their memberships may be transforming the US labor movement, in the long run. Their experiences illustrate the ability of organizations to redeploy existing institutional resources with potentially transformative results.