By many accounts, labor issues are more present in the 2020election cycle than we’ve seen in decades. There is widespread agreement that workers are struggling in today’s economy, that worker organizing must be supported and that all workers should have the right to equitable opportunities and just jobs.
When workers can come together collectively, they counterbalance the forces that generate inequality—and our labor laws play a key role in shaping access to opportunity and power. In a time when we are seeing record levels of economic inequality and concentration of economic power by corporations and the wealthy, the stifling of worker power in our economy threatens the very viability of American democracy.
Employers and corporations are increasingly intent on disempowering workers as a whole, but workers of color and women face particularly formidable challenges. The exclusion of the most vulnerable workers from key labor protections—especially in sectors dominated by Black and Latinx women, and those with precarious immigration statuses—is inexcusable in its own right. It also undermines the collective power of workers as a whole.
These exclusions are deeply and deliberately. They are deeply and deliberately rooted in explicit choices by policymakers. It should come as no surprise that we have a tiered system of protections given that the American labor market is rooted in the dispossession of Indigenous land, genocide of Indigenous people and the dehumanization of Black people and the institution of slavery.
A redesign of U.S. labor law released last week by the Clean Slate for Worker Power coalition takes an important step forward by arguing that we need to overhaul our labor laws. Critically, the report argues that the starting point for this redesign needs to be contesting the systems of oppression so foundational to our existing labor laws that they often feel inevitable.
Take, for example, the New Deal’s landmark law safeguarding the right to organize and bargain collectively, the National Labor Relations Act (NLRA). The New Deal Congress excluded domestic workers and agricultural laborers, two low-wage sectors dominated by women and people of color, from the NLRA, along with most other New Deal programs.
At the time the NLRA was enacted, nearly half of Black men and a significant number of Mexican American men, Native American men and Asian American men and women worked in agricultural and domestic work, and domestic work had the highest concentration of women of color. For Black women, the intersection of identities ensured that they were especially impacted by labor law carveouts: 90 percent of Black women worked either as a domestic worker or in agriculture in the 1930s.
These exclusions were no accident. Excluding categories of workers became a fixture of New Deal legislation, and paved the way for anti-discrimination laws in the 1960s and 1970s to exclude domestic workers. Political scientist Ira Katznelson has argued that Southern politicians were willing to support New Deal legislation “provided these statutes did not threaten Jim Crow,” so they “traded their votes for the exclusion of farmworkers and maids, the most widespread [B]lack categories of employment, from the protection offered by [New Deal] statutes.”
As the demographic composition of agricultural and domestic work has shifted, the law has not changed. These workers are still refused crucial rights to organize and bargain under the NLRA—and race, gender and other identity markers still matter when it comes to determining whose work is considered worthy of rights, dignity and protection under the law.
This history offers some key lessons that are reflected in the Clean Slate for Worker Power report.
First, we need a broader definition of “work.” In many cases, care-giving labor is not considered “work” in the eyes of the law. As a result, those who perform that labor—predominantly women of color—do not have equal protection under the law.
Second, labor law reforms must acknowledge, and correct for, how unequal power dynamics baked into our laws have deliberately maintained racial and gendered hierarchies in our society. In the New Deal era, powerful Southern white landowners exercised control over policymaking institutions and built their interests into the foundational elements of our labor laws. In a new era of concentrated wealth and power, we must take deliberate steps not to recreate these dynamics.
Third, the prima facie race neutrality of today’s labor law makes it easy to ignore the racist and sexist roots of many of the exclusions. Without directly confronting the power dynamics that enabled these exclusions in the first place, a new set of labor laws risks repeating the mistakes of the past.
Carveouts from labor law are not just a historical injustice—they are impacting an increasingly broad swath of workers. Although they are technically included in the NLRA, undocumented workers and temporary workers’ rights to organize have been severely curtailed by subsequent Supreme Court and NLRB rulings. Moreover, as the relationship between employers and employees is changing, these exclusions are affecting an increasing number of workers in the 21st century economy.
The labor movement is a powerful political force. Elevating those who have long had the least power and voice to leadership roles in the labor movement would have a set of important cascading effects, beginning with increasing a broader swath of workers’ economic well-being. As a number of scholars have argued, increasing economic power subsequently increases political power. Together, empowering workers and worker leaders who have too long been on the fringes will lead to a stronger labor movement, and in turn, a stronger democracy.
The future we aspire to requires a clean slate approach to labor law. But these laws don’t exist in a vacuum. We must boldly embark upon ending centuries of exploitative practices, policy choices and interconnected norms and expectations that are so deeply calcified they sometimes feel impossible to change.
A truly clean slate approach will not just wipe the ledger of labor law clean—it will also directly contest existing patterns of oppression to ensure that we are not replicating the power dynamics that got us to where we are today. This is our moment.
