Making Workers’ Rights Real: Labor Policy, Power, and Politics

Session Submission Type: Full Paper Panel

Session Description

Elizabeth Anderson (2017) has recently argued that the American workplace is best viewed as an authoritarian “private government” in which employers exercise outsized power and workers’ rights are minimal. Authoritarianism in the U.S. workplace did not, of course, appear out of nowhere: as Karen Orren (1991) has shown, employment relations were shaped at the outset by the feudal master-servant legal doctrine carried over in British common law. The history of U.S. labor politics may thus be viewed as a succession of campaigns to break through the legacies of this doctrine, establish workers’ rights and protections, and promote industrial democracy. Periodically, bundles of labor and employment policies have been proposed, from state-level protective labor rights in the early 20th century (Zackin 2013) to the New Deal’s collective bargaining system (Tomlins 1985) to the proliferation of subnational employment laws over the last few decades (Galvin 2019). Anderson’s powerful reflections attest to the failures of these successive policy innovations to fundamentally alter the imbalance of power in the workplace.

But many questions remain: Why have labor and employment policies been so limited in their effects? Why is there such a disconnect between rights on paper and their operations in practice? How should we understand the political dynamics surrounding contemporary questions of workplace governance, and what is their trajectory? These questions bear directly on contemporary problems. This panel brings together a set of leading scholars to address them. Their papers cohere nicely and build upon one another.

In the first paper, Alexander Hertel-Fernandez uses original, nationally representative survey data to examine what workers know of their rights and how likely they are to exercise them. Paradoxically, he finds that those workers most in need of statutory rights and protections in the workplace are least well-equipped to take advantage of them. His findings about workers’ levels of awareness and access, in turn, raises the question of why; which the second two papers address with new evidence and insights.

Janice Fine and Gregory Lyon show that subnational regulatory capacities are woefully inadequate to the task of effective enforcement. Despite the recent proliferation of subnational employment laws, city and state enforcement agencies are limited in their investigative capacities and severely underfunded—and as the authors show through original research, enforcement agents typically adhere to individualistic, complaint-driven models of reactive regulation rather than embrace more systemic proactive approaches (such as “strategic enforcement”). Rather than treat exploitation in the workplace as a symptom of pervasive, structural power imbalances in the workplace, enforcement agencies are playing a losing game of whack-a-mole.

But inadequate enforcement of employment law is only part of the problem. As Sarah Staszak shows, they have also been circumvented via mandatory arbitration clauses in employment contracts, which have skyrocketed in recent years. Staszak’s historical-institutional analysis demonstrates that multiple actors operating at different times “converted” employment arbitration from a mechanism of justice enhancement in the Progressive Era into a tool that serves largely to shield employers from litigation.

In other words, both Fine and Lyon and Staszak’s papers show that the two pathways to vindicating workers’ rights offered by employment law – regulation and litigation – are littered with obstacles, sapping the potential of public policies to protect workers.

In the final paper, Daniel Galvin examines the behavior of “alt-labor” groups within this institutionally dense but effectively rights-deficient environment. He finds that they have doubled down on the “policy path” and in the process, become more explicitly political. In order to shape the conditions in which policy decisions are made and enforcement capacities are set, they have developed sophisticated strategies to build worker power and break business’ agenda control. To be sure, they are playing the long game. But the only way to combat employers’ “private government,” they have found, is to shift the conflict into the more open, public, and political terrain, where workers stand a fighting chance of influencing outcomes through political action. If the conflict remains private, small in scale, and quiet, workers will always lose.

In every respect, in other words, the story of workers’ rights is inescapably political. Yet curiously, political science has often avoided this topic (Hertel-Fernandez in JOP, 2019). This panel evidences its promise as a research agenda.

Sub Unit

• Division 55: Class and Inequality

Cosponsor

• Related Groups / Labor Politics

Individual Presentations

• Rights at Work? Examining Individual and Collective Workplace Rights in the US - Alexander Warren Hertel-Fernandez, Columbia University

• The Individual or the System: Subnational Labor Standards Enforcement in the US - Janice R Fine, Rutgers University-New Brunswick; Gregory Lyon, Georgetown University

• Privatizing Employment Law: Expansion of Mandatory Arbitration in the Workplace - Sarah Staszak, Princeton University

• Alt-Labor Politics - Daniel Galvin, Northwestern University

Chair

• Isabel Maria Perera Cornell

Discussants

• Laura C. Bucci Saint Joseph's University

• Catherine Fisk University of California, Berkeley