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The Nightmare Facing the Poor and Working Class If There’s Not Another Stimulus

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As mil¬≠lions of U.S. work¬≠ers face unem¬≠ploy¬≠ment, food inse¬≠cu¬≠ri¬≠ty and evic¬≠tion amid the coro¬≠n¬≠avirus pan¬≠dem¬≠ic, the lim¬≠it¬≠ed aid pro¬≠vid¬≠ed by the fed¬≠er¬≠al government‚Äôs flawed CARES Act from March has long since dried up. 

Last week, fol¬≠low¬≠ing more than six months of stalled nego¬≠ti¬≠a¬≠tions with con¬≠gres¬≠sion¬≠al Democ¬≠rats over a new eco¬≠nom¬≠ic relief pack¬≠age, Pres¬≠i¬≠dent Trump abrupt¬≠ly announced he was halt¬≠ing talks until after the Novem¬≠ber election.

While the pres¬≠i¬≠dent quick¬≠ly back¬≠tracked and is now report¬≠ed¬≠ly con¬≠tin¬≠u¬≠ing to nego¬≠ti¬≠ate, the fed¬≠er¬≠al government‚Äôs ongo¬≠ing fail¬≠ure to pass a new relief pack¬≠age spells cat¬≠a¬≠stro¬≠phe for a U.S. work¬≠ing class already pushed to the brink by an eco¬≠nom¬≠ic cri¬≠sis seem¬≠ing¬≠ly on par with the Great Depression. 

Here‚Äôs a break¬≠down of what the con¬≠tin¬≠ued lack of fed¬≠er¬≠al help means for workers:

Sig¬≠nif¬≠i¬≠cant¬≠ly reduced unem¬≠ploy¬≠ment checks

Per¬≠haps the most ben¬≠e¬≠fi¬≠cial part of the CARES Act was the extra $600¬†a¬†week it pro¬≠vid¬≠ed to work¬≠ers on unem¬≠ploy¬≠ment‚ÄĒa tem¬≠po¬≠rary life¬≠line that the GOP-led Sen¬≠ate allowed to expire on July¬†31.¬†

Week¬≠ly unem¬≠ploy¬≠ment ben¬≠e¬≠fits vary wide¬≠ly by state, rang¬≠ing from $44 in Okla¬≠homa to $497 in Wash¬≠ing¬≠ton. The $600 week¬≠ly sup¬≠ple¬≠ment was an across-the-board ben¬≠e¬≠fit that ensured unem¬≠ployed work¬≠ers in any state main¬≠tained a decent income despite los¬≠ing their jobs due to the pandemic.

The Eco¬≠nom¬≠ic Pol¬≠i¬≠cy Insti¬≠tute found that the con¬≠sumer spend¬≠ing gen¬≠er¬≠at¬≠ed by that extra $600 per week sup¬≠port¬≠ed over 5 mil¬≠lion jobs, and that con¬≠tin¬≠u¬≠ing the sup¬≠ple¬≠ment through the mid¬≠dle of next year would have raised U.S. gross domes¬≠tic prod¬≠uct (GDP) by a quar¬≠ter¬≠ly aver¬≠age of 3.7 percent.

After this ben¬≠e¬≠fit expired, rather than agree to Democ¬≠rats‚Äô demands to extend it, Pres¬≠i¬≠dent Trump¬†signed¬†an exec¬≠u¬≠tive order slash¬≠ing it by¬†50¬†per¬≠cent‚ÄĒallow¬≠ing states to use fed¬≠er¬≠al funds to pro¬≠vide only a $300¬†week¬≠ly unem¬≠ploy¬≠ment sup¬≠ple¬≠ment. At least sev¬≠en states have already¬†exhaust¬≠ed¬†these¬†funds.¬†

Mean¬≠while, by los¬≠ing the week¬≠ly $600¬†boost, unem¬≠ployed work¬≠ers saw their incomes drop by¬†two-thirds, mak¬≠ing it more dif¬≠fi¬≠cult to pay the bills and afford gro¬≠ceries. There are cur¬≠rent¬≠ly¬†25.5¬†mil¬≠lion¬†work¬≠ers receiv¬≠ing unem¬≠ploy¬≠ment ben¬≠e¬≠fits. With at least¬†14¬†mil¬≠lion¬†more job¬≠less work¬≠ers than job open¬≠ings, mil¬≠lions will be forced to rely on unem¬≠ploy¬≠ment insur¬≠ance for the fore¬≠see¬≠able future‚ÄĒbut now with a¬†great¬≠ly reduced¬†check.

Mass fur¬≠loughs in the air¬≠line industry

Anoth¬≠er one of the CARES Act‚Äôs most help¬≠ful pro¬≠vi¬≠sions was the Pay¬≠roll Sup¬≠port Pro¬≠gram (PSP), which pro¬≠vid¬≠ed $32 bil¬≠lion in grants to the avi¬≠a¬≠tion indus¬≠try for the sole pur¬≠pose of keep¬≠ing work¬≠ers on pay¬≠roll and pro¬≠vid¬≠ing ben¬≠e¬≠fits dur¬≠ing the Covid-19 cri¬≠sis. The avi¬≠a¬≠tion indus¬≠try employs 750,000 work¬≠ers, many of them union¬≠ized, and accounts for 5 per¬≠cent of GDP.

The Sen¬≠ate allowed the PSP to expire on Octo¬≠ber 1, result¬≠ing in 40,000 air¬≠line work¬≠ers imme¬≠di¬≠ate¬≠ly being fur¬≠loughed with¬≠out pay or health insur¬≠ance. The industry‚Äôs unions are wag¬≠ing an aggres¬≠sive cam¬≠paign to extend the pro¬≠gram. With¬≠out the fed¬≠er¬≠al gov¬≠ern¬≠ment con¬≠tin¬≠u¬≠ing the PSP, more fur¬≠loughs are like¬≠ly to come as pas¬≠sen¬≠ger air¬≠lines suf¬≠fer a loss in busi¬≠ness due to the pandemic.

More lay¬≠offs at small businesses

The Pay¬≠check Pro¬≠tec¬≠tion Pro¬≠gram (PPP), anoth¬≠er com¬≠po¬≠nent of the CARES Act, offered up to $659 bil¬≠lion in for¬≠giv¬≠able loans to small busi¬≠ness¬≠es to keep work¬≠ers on pay¬≠roll. The pro¬≠gram has been crit¬≠i¬≠cized for allo¬≠cat¬≠ing mil¬≠lions of dol¬≠lars to large cor¬≠po¬≠ra¬≠tions and com¬≠pa¬≠nies con¬≠nect¬≠ed to politi¬≠cians, but it has also offered much-need¬≠ed finan¬≠cial sup¬≠port to small busi¬≠ness¬≠es across the country.

The appli¬≠ca¬≠tion dead¬≠line for PPP loans was on August 8. While the Trump admin¬≠is¬≠tra¬≠tion claims the pro¬≠gram saved 51 mil¬≠lion jobs, econ¬≠o¬≠mists have put that num¬≠ber at any¬≠where from only 2.3 mil¬≠lion to 13.6 mil¬≠lion.

What¬≠ev¬≠er the pre¬≠cise num¬≠ber, the PPP‚Äôs impact is quick¬≠ly run¬≠ning out of steam. Bor¬≠row¬≠ers say they expect to lay off work¬≠ers with¬≠in six months, while a Nation¬≠al Restau¬≠rant Asso¬≠ci¬≠a¬≠tion sur¬≠vey indi¬≠cates that a whop¬≠ping 40 per¬≠cent of all U.S. restau¬≠rants could go out of busi¬≠ness in the com¬≠ing months, lead¬≠ing to mil¬≠lions of more layoffs. 

No sec¬≠ond $1,200 stim¬≠u¬≠lus check

While Sen. Bernie Sanders and pro¬≠gres¬≠sive Democ¬≠rats have been¬†call¬≠ing¬†on the fed¬≠er¬≠al gov¬≠ern¬≠ment to pro¬≠vide a $2,000¬†month¬≠ly check to every U.S. adult for the dura¬≠tion of the pan¬≠dem¬≠ic, the CARES Act instead pro¬≠vid¬≠ed a¬†one-time check of $1,200‚ÄĒwhich exclud¬≠ed many¬†undoc¬≠u¬≠ment¬≠ed immi¬≠grants¬†and¬†col¬≠lege-age adults. Econ¬≠o¬≠mists report that the checks did¬†vir¬≠tu¬≠al¬≠ly noth¬≠ing¬†to stim¬≠u¬≠late the econ¬≠o¬≠my, though they did help poor and unem¬≠ployed work¬≠ers par¬≠tial¬≠ly¬†cov¬≠er¬†a¬†few weeks‚Äô worth of basic¬†expenses.

Pres¬≠i¬≠dent Trump and con¬≠gres¬≠sion¬≠al lead¬≠ers have been say¬≠ing for months that a sec¬≠ond $1,200 check is on the way. But with¬≠out anoth¬≠er relief bill, even this mea¬≠ger finan¬≠cial assis¬≠tance will not materialize.

An uncer¬≠tain future

On Octo¬≠ber 1, the Demo¬≠c¬≠ra¬≠t¬≠ic-con¬≠trolled House of Rep¬≠re¬≠sen¬≠ta¬≠tives passed a scaled-down ver¬≠sion of the HEROES Act, an eco¬≠nom¬≠ic relief pack¬≠age they orig¬≠i¬≠nal¬≠ly passed in May that extends the lim¬≠it¬≠ed aid from the CARES Act. 

Among oth­er things, the $2.2 trillion bill would con­tin­ue the $600 week­ly unem­ploy­ment sup­ple­ment to the end of Jan­u­ary (mak­ing it retroac­tive to Sep­tem­ber 6), allo­cate anoth­er $25 bil­lion for air­line work­ers, allow small busi­ness­es to apply for a sec­ond PPP loan, send out a sec­ond $1,200 stim­u­lus check, pro­vide $50 bil­lion in emer­gency rental assis­tance, and give an addi­tion­al $10 bil­lion to the Sup­ple­men­tal Nutri­tion Assis­tance Pro­gram (SNAP).

Over the week¬≠end, the Trump admin¬≠is¬≠tra¬≠tion¬†coun¬≠tered¬†with a¬†small¬≠er, $1.8 trillion pro¬≠pos¬≠al that would include a $400-per-week unem¬≠ploy¬≠ment sup¬≠ple¬≠ment, $20¬†bil¬≠lion for air¬≠lines, anoth¬≠er $330¬†bil¬≠lion for PPP loans, and a¬†sec¬≠ond $1,200¬†check, among oth¬≠er mea¬≠sures‚ÄĒbut nei¬≠ther House Speak¬≠er Nan¬≠cy Pelosi nor Sen¬≠ate Repub¬≠li¬≠cans appear ready to push this bill in their¬†caucus.

While mil¬≠lions of U.S. work¬≠ers are left in the lurch and mass lay¬≠offs con¬≠tin¬≠ue to mount, Trump and Sen¬≠ate Repub¬≠li¬≠cans are instead focus¬≠ing their atten¬≠tion on ensur¬≠ing right-wing, anti-union judge Amy Coney Bar¬≠rett is hasti¬≠ly con¬≠firmed to the Supreme Court in time for the election.

‚ÄúIf this gov¬≠ern¬≠ment doesn‚Äôt work for us, then we need to focus on the fact that it is our labor that gives all the val¬≠ue to this coun¬≠try,‚ÄĚ Asso¬≠ci¬≠a¬≠tion of Flight Atten¬≠dants pres¬≠i¬≠dent Sara Nel¬≠son‚ÄĒwho famous¬≠ly¬†called¬†for a¬†gen¬≠er¬≠al strike to end Trump‚Äôs fed¬≠er¬≠al shut¬≠down in Jan¬≠u¬≠ary¬†2019‚ÄĒsaid¬†last week.¬†‚ÄúThis coun¬≠try doesn‚Äôt run with¬≠out us as work¬≠ers. So we have to think about that option as¬†well.‚ÄĚ

This blog originally appeared at In These Times on October 19, 2020. Reprinted with permission.

About the Author: Jeff Schuhrke has been a Work¬≠ing In These Times con¬≠trib¬≠u¬≠tor since 2013. He has a Ph.D. in His¬≠to¬≠ry from the Uni¬≠ver¬≠si¬≠ty of Illi¬≠nois at Chica¬≠go and a Master‚Äôs in Labor Stud¬≠ies from UMass Amherst. Fol¬≠low him on Twit¬≠ter: @JeffSchuhrke.

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Trump’s Anti-Worker Labor Board

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In his State of the Union address this year, President Trump declared that ‚Äúour agenda is relentlessly pro-worker.‚ÄĚ Despite this populist posturing, any sober assessment of Trump‚Äôs first term will show that it has been an all-out assault on labor.

Trump has ruthlessly attacked federal workers, granted more tax cuts for the rich, and severely weakened the Occupational Safety and Health Administration, and he is now undermining Social Security. Campaign promises such as massive infrastructure projects, a minimum wage hike, and an overhaul of the health care system have barely even been attempted.

In a few short years, Republicans have used the opportunity presented by a Trump Administration to attack workers in ways we haven’t seen since before the Great Depression. While these seismic shifts in labor relations rarely get highlighted in the media, they should alarm anyone who cares about working people’s basic rights.

Can Workers Still Use the NLRB under Trump?

‚ÄúThe big-picture situation at the agency under Trump is not good,” wrote labor lawyer Gay Semel in the January 2020 issue of Labor Notes. “But in certain situations,” she emphasized, “the Board is still the only place workers can go for legal protection, and workers shouldn‚Äôt let the president‚Äôs pro-corporate appointees scare them out of ever exercising their rights.‚ÄĚ

For advice on when and how to go to the NLRB in the current political climate, see Semel’s article here.


Actions of the National Labor Relations Board (NLRB) are the most striking example of the anti-worker agenda. The Wagner Act of 1935, the first iteration of the National Labor Relations Act, established the NLRB as an agency to protect workers’ rights to organize and engage in collective bargaining. Trump has rapidly turned an agency designed to serve workers’ interests into another tool of corporate power.

Trump has appointed three Republicans to the board, none of whom has any experience representing workers or unions. In fact, all have long careers defending corporate interests. Between December 2019 and August‚ÄĒwhen Democrat Lauren McFerran was reconfirmed by the Senate‚ÄĒTrump presided over the first all-Republican Board in the NLRB‚Äôs 85-year history.

At the head of the board is the General Counsel, whom workers depend on to actually prosecute cases. Trump’s pick was management lawyer Peter Robb.

The Trump Board has dutifully pursued a corporate wish list of 10 items put out by the Chamber of Commerce in early 2017. Board members have already taken action on all 10. These priorities include delaying union elections, restricting the ability of employees to communicate about workplace issues, and enhancing the ability of employers to determine bargaining units.

We shouldn’t overstate the importance of labor law. Deep organizing and shop floor power are what’s needed to rebuild the labor movement and working people’s ability to fight back. But these laws still make a real difference in shaping the barriers to the revitalization we seek. The NLRB under Trump is on a determined mission to destroy the last vestiges of organized power working people have left.


As Celine McNicholas, Margaret Poydock, and Lynn Rhinehart of the Economic Policy Institute wrote in their October 2019 report ‚ÄúUnprecedented: The Trump NLRB‚Äôs Attack on Workers‚Äô Rights‚ÄĚ: ‚ÄúThe Trump board has repeatedly reversed long-standing board precedent, weakening workers‚Äô rights and giving more power to employers. In the two years that Republicans have held the majority on the board, they have overturned NLRB precedent in more than a dozen cases. All of these decisions overturning precedent favor employers.‚ÄĚ In most cases, the Board has issued these types of rulings without even bothering to solicit public input, a reversal of its normal practice.

Take the Board‚Äôs ruling in Bexar. Thanks to this ruling, now off-duty employees do not have a right to organize in public areas of their workplace if their employer is a contractor. In this particular instance, San Antonio Symphony musicians were barred from leafleting in front of their home venue, where the vast majority of their performances take place, because the venue is not owned by their employer.

In another case, UPMC, hospitals were granted the ability to ban union organizers from talking to nurses in hospital cafeterias that are public.

The NLRB has also set its sights on undoing more recent precedents set during the Obama Administration. In 2011, the Board‚Äôs Specialty Healthcare decision undermined employers‚Äô ability to increase the size of bargaining units in union elections, a tactic often used to make it harder for workers to organize. This ruling allowed, for example, workers in the cosmetics department at Macy‚Äôs to petition for a union election among themselves, rather than having to win an election for the entire store. One of the first things the new NLRB did was overturn this ruling‚ÄĒand then add additional measures that gave management even more power to beat organizing drives.


Traditional understandings and procedures in the collective bargaining process have also been upended. For over 70 years, employers were banned from making sweeping changes to wages, hours, or working conditions unless they demonstrated that the union had clearly waived its right to bargain over these issues.

Give $10 a month or more and get our “Fight the Boss, Build the Union” T-shirt.

But the Board adopted a new rule that allows employers to make unilateral changes if there is reference in the contract to management‚Äôs authority over the issue.

In Johnson Controls, a rule was announced allowing employers to withdraw union recognition at the end of a collective bargaining agreement if they can prove that the union does not have majority support. They can now do this without holding an election, such as through an employee petition for decertification. But employers can still insist on an election when the union is first trying to be established‚ÄĒno ‚Äúcard check‚ÄĚ there.


In this age of dire economic inequality, Americans need and want unions. Recent polls show that nearly half of non-union workers say they would vote for a union if given the chance. Sixty-five percent of Americans have a favorable opinion of unions, according to a Gallup poll this year‚ÄĒthe highest since 2003. But the NLRB is doing everything in its power to deny working people union protection.

Union elections have been undermined as well. Never letting a crisis go to waste, the board used COVID-19 as an excuse to halt all union elections in late March and early April, even though they could have been handled through the mail. This affected thousands of workers who were looking to vote a union in. More important, the Board enacted new rules that will affect the way union elections are done well after the pandemic is over.

Occasionally, employers will recognize a union voluntarily, without an election, when a majority of workers have signed union cards. The Board now requires such employers to tell those workers that they can file for an election to get rid of the union they just formed. New rules also dictate that a union election should proceed even when the union has filed charges of illegal practices by employers to alter the election.

Over the last decade, groups of Walmart workers have gone on many short strikes to raise awareness about the company‚Äôs labor practices. The NLRB ruled in July 2019 that more than a hundred Walmart workers who took part in a five-day strike were not protected by labor law. The Board argued that their action counted as an ‚Äúintermittent‚ÄĚ strike, which is unprotected, and thus there were no legal consequences for Walmart when the company retaliated.


There are already signs of what the Board will pursue if Trump gets a second term.

In the age of COVID-19, recent rulings related to workplace health and safety are particularly dangerous and despicable. Board regional directors have been told to dismiss COVID-related cases against employers. Incredibly, the Board has ruled that employers are not obligated to bargain over paid sick leave, hazard pay, or temporary closure due to the pandemic.

In such a stifled organizing climate, speaking out to the public about unsafe working conditions may be the only hope workers have for protecting their well-being. But the Board has made this more difficult as well, with recent advice memos from the General Counsel refusing to afford protection to or overturn firings of workers who spoke out against their company’s COVID safety procedures.

With each new ruling it becomes clearer that the Board seeks a workplace where employers have unfettered control over workers‚Äô minds and bodies. In December 2019 a ruling allowed private sector employers to place major restrictions on the wearing of union swag, upholding a Walmart policy that restricts employees from wearing anything but ‚Äúsmall, non-distracting‚ÄĚ union buttons or other insignia in stores. Walmart absurdly claimed this practice would ‚Äúenhance the customer shopping experience and protect its merchandise from theft or vandalism.‚ÄĚ

In July, employers were given the green light to discipline shop stewards for using profanity during meetings with management. This effort to restrict behavior also extends to language used on picket lines and social media.

Labor law is not a silver bullet. Having strong labor laws on the books wouldn’t mean much without a vibrant union movement to enforce them. Conversely, it’s possible to have a situation where anti-worker labor laws are overcome by a militant presence on the shop floor and in society.

But it’s clear that these laws have real-world effects, especially for our ability to organize in the future. The NLRB under Trump exposes his pro-worker rhetoric as a lie.

There will be real consequences of another Trump term. But after the election is over comes the hard work of reversing the huge power imbalance between workers and the boss.

This blog originally appeared at Labor Notes on October 8, 2020. Reprinted with permission.

About the Author: Paul Prescod is a high school social studies teacher and belongs to the Working Educators caucus of the Philadelphia Federation of Teachers.

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How Amy Coney Barrett’s Appointment Would Escalate the War on Workers

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The death of Supreme Court Jus¬≠tice Ruth Bad¬≠er Gins¬≠berg has trig¬≠gered a hasty search by Pres¬≠i¬≠dent Don¬≠ald Trump and Sen¬≠ate Repub¬≠li¬≠cans for a jus¬≠tice to fill the emp¬≠ty seat before the Novem¬≠ber pres¬≠i¬≠den¬≠tial election. 

Now Trump has cho¬≠sen Amy Coney Bar¬≠rett, of the two women at the top of his short¬≠list, as his Supreme Court nom¬≠i¬≠na¬≠tion, but she has not yet been con¬≠firmed. Bar¬≠rett, a staunch con¬≠ser¬≠v¬≠a¬≠tive groomed by the Fed¬≠er¬≠al¬≠ist Soci¬≠ety, has been iden¬≠ti¬≠fied as a strong¬≠ly anti-abor¬≠tion nominee.

In employ¬≠ment cas¬≠es that Bar¬≠rett has seen, she has adopt¬≠ed large¬≠ly anti-work¬≠er‚ÄĒand on two occa¬≠sions, racial¬≠ly dis¬≠crim¬≠i¬≠na¬≠to¬≠ry‚ÄĒposi¬≠tions. In¬†2017, Bar¬≠rett¬†vot¬≠ed¬†not to re-hear¬†U.S. Equal Employ¬≠ment Oppor¬≠tu¬≠ni¬≠ty Com¬≠mis¬≠sion v. Auto¬≠zone, in which a¬†three-judge pan¬≠el ruled in favor of an Auto¬≠zone which had seg¬≠re¬≠gat¬≠ed its stores based on race. In a¬†2019¬†case,¬†she ruled¬†against a¬†Black Illi¬≠nois Depart¬≠ment of Trans¬≠porta¬≠tion work¬≠er who had alleged that his fir¬≠ing was racial¬≠ly-moti¬≠vat¬≠ed, giv¬≠en racist ver¬≠bal harass¬≠ment he expe¬≠ri¬≠enced on the job. And this year, Bar¬≠rett¬†ruled¬†that Grub¬≠Hub dri¬≠vers could not file a¬†class action law¬≠suit against their employ¬≠er‚ÄĒa blow to work¬≠ers in the rapid¬≠ly expand¬≠ing gig¬†economy.¬†

If appoint¬≠ed, Bar¬≠rett would cement the con¬≠ser¬≠v¬≠a¬≠tive major¬≠i¬≠ty on a¬†court that has already demon¬≠strat¬≠ed a¬†strong anti-work¬≠er ten¬≠den¬≠cy. In two major labor cas¬≠es in the last three years the Supreme Court ruled¬†5‚Äď4¬†to curb union and work¬≠er pro¬≠tec¬≠tions. In¬†Epic Sys¬≠tem Corp. v. Lewis, the Supreme Court deter¬≠mined that employ¬≠ers could con¬≠trac¬≠tu¬≠al¬≠ly oblig¬≠ate work¬≠ers to for¬≠go their right to col¬≠lec¬≠tive¬≠ly sue the employ¬≠er‚ÄĒbefore the deci¬≠sion, class action law¬≠suits were regard¬≠ed as¬†‚Äúpro¬≠tect¬≠ed con¬≠cert¬≠ed activ¬≠i¬≠ty‚ÄĚ under Sec¬≠tion¬†7¬†of the NLRA. And in¬†Janus v. AFSCME,¬†the court ruled that pub¬≠lic-sec¬≠tor unions could no longer require rep¬≠re¬≠sent¬≠ed work¬≠ers to pay union fees, again vot¬≠ing along con¬≠ser¬≠v¬≠a¬≠tive-lib¬≠er¬≠al¬†lines.¬†

In These Times spoke to James Gray Pope, a labor activist and legal schol¬≠ar from Rut¬≠gers Uni¬≠ver¬≠si¬≠ty, about the con¬≠ser¬≠v¬≠a¬≠tive court and labor. 

In These Times: What kinds of labor lit¬≠i¬≠ga¬≠tion do you antic¬≠i¬≠pate com¬≠ing before the court? And what are the impli¬≠ca¬≠tions for labor when the court becomes so over¬≠whelm¬≠ing¬≠ly conservative?

James Gray Pope: The big-pic­ture point here is that through­out the whole range of issues that affect the work­ing class, the Supreme Court is going to be in a fun­da­men­tal­ly reac­tionary pos­ture. And we’ve been through a peri­od like that, the so-called Lochn­er era, which refers to the late 19th and ear­ly 20th cen­tu­ry Supreme Court trend of oppos­ing legal reg­u­la­tions around work­ing con­di­tions. The Lochn­er case itself involved a New York max­i­mum hours law that the court struck down because it vio­lat­ed the indi­vid­ual free­dom of con­tract of employ­ers and work­ers to agree that the work­er would work for any num­ber of hours that they want­ed. And the court said it was ille­git­i­mate for a leg­is­la­ture to take into account imbal­ances of pow­er in a con­trac­tu­al rela­tion­ship, unless the pro­tect­ed indi­vid­u­als were some­how inca­pable of tak­ing care of them­selves, like chil­dren. So, that being the basic ide­o­log­i­cal cen­ter-point for jurispru­dence dur­ing that peri­od, the court did a lot of inter­ven­tion in terms of strik­ing down work­er-pro­tec­tive leg­is­la­tion, max­i­mum-hours laws, min­i­mum wage laws, union-rights laws, and laws out­law­ing yel­low dog con­tracts.

And this peri¬≠od today is sim¬≠i¬≠lar. The core ide¬≠ol¬≠o¬≠gy is real¬≠ly the same, but the court can‚Äôt imple¬≠ment it with the kind of puri¬≠ty that it could imple¬≠ment it dur¬≠ing the Lochn¬≠er era, because labor stat¬≠ues are sit¬≠ting there. The state¬≠ment of pur¬≠pose of the Nation¬≠al Labor Rela¬≠tions Act (NLRA) talks about inequal¬≠i¬≠ty, bar¬≠gain¬≠ing pow¬≠er, and the need for full free¬≠dom of asso¬≠ci¬≠a¬≠tion of work¬≠ers. So they have to deal with that. 

But you can see it in¬†Epic Sys¬≠tems.¬†You can see right from the begin¬≠ning of the opin¬≠ion, Jus¬≠tice Neil Gor¬≠such is irri¬≠tat¬≠ed at the work¬≠ers there for bring¬≠ing a¬†suit against their employ¬≠er after they had agreed not to. So the idea here is that an indi¬≠vid¬≠ual work¬≠er, you know, sits down with an employ¬≠er and is in an equal rela¬≠tion¬≠ship in nego¬≠ti¬≠at¬≠ing some¬≠thing. Where¬≠as, of course, as Jus¬≠tice Ruth Bad¬≠er Gins¬≠burg says, in foot¬≠note two of her opin¬≠ion, it did¬≠n‚Äôt hap¬≠pen that way. The com¬≠pa¬≠ny just sends out an edict say¬≠ing,¬†‚ÄúYou either agree to this or you lose your job.‚ÄĚ That‚Äôs the present-day ver¬≠sion of the Lochn¬≠er era, indi¬≠vid¬≠ual lib¬≠er¬≠ty of¬†contract.¬†

In These Times: Beyond cas¬≠es that deal direct¬≠ly with the NLRA, what is the kind of lit¬≠i¬≠ga¬≠tion that could come before the Supreme Court that would affect workers?

James Gray Pope: I don‚Äôt think any¬≠thing‚Äôs going to be so much dif¬≠fer¬≠ent from the recent direc¬≠tion. It‚Äôs just that it‚Äôs going to be more intense and con¬≠sis¬≠tent. What‚Äôs going to be an issue here in terms of what the court does, I think, is the extent to which Supreme Court Jus¬≠tice John Roberts, who has some sense of his¬≠to¬≠ry and some con¬≠cern about what the his¬≠tor¬≠i¬≠cal ver¬≠dict on his chief jus¬≠tice¬≠ship is going to be, is going to con¬≠strain the court in the labor law area. I think he under¬≠stands the need to con¬≠strain the court in the civ¬≠il rights area, and even some of the oth¬≠er con¬≠ser¬≠v¬≠a¬≠tive jus¬≠tices have issued sur¬≠pris¬≠ing pro-civ¬≠il rights opinions. 

The Supreme Court is like any polit¬≠i¬≠cal body in the sense that you spend polit¬≠i¬≠cal cap¬≠i¬≠tal, and there‚Äôs an assess¬≠ment:¬†‚ÄúWell, do we want to spend our polit¬≠i¬≠cal cap¬≠i¬≠tal on this issue? Are we going to spend it on that issue?‚ÄĚ And that‚Äôs going to be the big ques¬≠tion now that they‚Äôre going to have. If this nom¬≠i¬≠nee gets con¬≠firmed, con¬≠ser¬≠v¬≠a¬≠tives are going to have a¬†very strong major¬≠i¬≠ty. And they‚Äôre going to have the pow¬≠er to trans¬≠form the law immense¬≠ly. And so the ques¬≠tion is, where are they going to put their ener¬≠gy? And my fear is not so much for labor law, because labor laws are fun¬≠da¬≠men¬≠tal¬≠ly weak any¬≠way, but more in the area of vot¬≠ing rights and¬†gerrymandering.¬†

In These Times: How does the Fed¬≠er¬≠al¬≠ist Society‚Äôs tex¬≠tu¬≠al¬≠ist or orig¬≠i¬≠nal¬≠ist tra¬≠di¬≠tion affect rul¬≠ings on labor-relat¬≠ed cases? 

James Gray Pope:¬†Orig¬≠i¬≠nal¬≠ism ini¬≠tial¬≠ly was a¬†pure¬≠ly con¬≠ser¬≠v¬≠a¬≠tive phi¬≠los¬≠o¬≠phy where basi¬≠cal¬≠ly you imag¬≠ine set¬≠ting a¬†time machine back and ask¬≠ing the peo¬≠ple who enact¬≠ed the¬†14th¬†Amend¬≠ment, for exam¬≠ple,¬†‚ÄúWell, did you intend to give women equal rights to men?‚ÄĚ And that was the kind of method¬≠ol¬≠o¬≠gy that‚Äôs now referred to by more sophis¬≠ti¬≠cat¬≠ed pro¬≠po¬≠nents of orig¬≠i¬≠nal mean¬≠ing as¬†‚Äúorig¬≠i¬≠nal expect¬≠ed appli¬≠ca¬≠tion,‚ÄĚ where instead of going after the orig¬≠i¬≠nal mean¬≠ing you‚Äôre going back and you‚Äôre going after the ways in which peo¬≠ple in that his¬≠tor¬≠i¬≠cal era would have applied the¬†provision.¬†

One of the big prob¬≠lems with orig¬≠i¬≠nal¬≠ism is, what hap¬≠pens if a¬†body of prece¬≠dent builds up that seems to con¬≠tra¬≠dict your view? In a¬†way, the most dra¬≠mat¬≠ic illus¬≠tra¬≠tion is Supreme Court Jus¬≠tice Clarence Thomas on the scope of the Com¬≠merce Clause. And this relates to labor. Thomas thinks that the word¬†‚Äúcom¬≠merce‚ÄĚ is the Con¬≠gress‚Äôs pow¬≠er to reg¬≠u¬≠late inter¬≠state com¬≠merce, the word com¬≠merce just means the buy¬≠ing and sell¬≠ing of things. And so, in his view, the deci¬≠sions that upheld the Wag¬≠n¬≠er Act and the Nation¬≠al Labor Rela¬≠tions Act are wrong from an orig¬≠i¬≠nal¬≠ist point of¬†view.

Well, the prob¬≠lem is that¬†stare deci¬≠sis‚ÄĒa judi¬≠cial pol¬≠i¬≠cy that courts gen¬≠er¬≠al¬≠ly fol¬≠low ear¬≠li¬≠er rul¬≠ings (prece¬≠dent), some¬≠times even when the ear¬≠li¬≠er rul¬≠ings were erro¬≠neous‚ÄĒis total¬≠ly manip¬≠u¬≠la¬≠ble: It‚Äôs a¬†mul¬≠ti fac¬≠tor analy¬≠sis that‚Äôs eas¬≠i¬≠ly¬†manipulable.¬†

In These Times: Con¬≠sid¬≠er¬≠ing the fact that labor law in the Unit¬≠ed States is real¬≠ly weak, and work¬≠ers‚Äô pro¬≠tec¬≠tions will like¬≠ly be fur¬≠ther erod¬≠ed in the com¬≠ing years, what are the ways that you might antic¬≠i¬≠pate unions or work¬≠ers orga¬≠ni¬≠za¬≠tions respond¬≠ing to that land¬≠scape, through the law or not?

James Gray Pope: Broad¬≠ly, I would say that pol¬≠i¬≠tics are key. And what‚Äôs real¬≠ly cru¬≠cial is to get strong pro¬≠gres¬≠sives into elect¬≠ed office, from which point they can pack the court. So if you want it to go through for¬≠mal legal method mech¬≠a¬≠nisms, that would be the way to do it. And obvi¬≠ous¬≠ly, that‚Äôs an area that‚Äôs fraught right now with the ger¬≠ry¬≠man¬≠der¬≠ing opin¬≠ion, the vot¬≠er ID rul¬≠ings, and Cit¬≠i¬≠zens Unit¬≠ed guar¬≠an¬≠tee¬≠ing the right of mon¬≠ey to skew the polit¬≠i¬≠cal process. All of those things are going to make it very dif¬≠fi¬≠cult to break through. 

The last time this was a prob¬≠lem was around the Lochn¬≠er era, dur¬≠ing which a lot of peo¬≠ple were denied the right to vote, includ¬≠ing not only African Amer¬≠i¬≠cans in the South, but also poor whites in the South, and women. So the demo¬≠c¬≠ra¬≠t¬≠ic process was skewed then as well. Ulti¬≠mate¬≠ly, what was cru¬≠cial was mass resistance. 

And the strikes in¬†1934‚ÄĒthat was the peri¬≠od where you had gen¬≠er¬≠al strikes and threat¬≠ened gen¬≠er¬≠al strikes in a¬†num¬≠ber of cities, bring¬≠ing about the per¬≠ceived pos¬≠si¬≠bil¬≠i¬≠ty of, if not rev¬≠o¬≠lu¬≠tion, some¬≠thing at least threat¬≠en¬≠ing the order. And that got the NLRA passed. And in my opin¬≠ion, that‚Äôs what got the NLRA upheld as con¬≠sti¬≠tu¬≠tion¬≠al along with Pres¬≠i¬≠dent Franklin Delano Roosevelt‚Äôs threat to pack the Supreme Court with jus¬≠tices sym¬≠pa¬≠thet¬≠ic to the New¬†Deal.

This blog originally appeared at In These Times on September 28, 2020. Reprinted with permission.

About the Author: Alice Herman is an In These Times Good­man Inves­tiga­tive Fel­low, as well as a writer based in Madi­son, Wis­con­sin, where she works at a restau­rant. She con­tributes reg­u­lar­ly to Isth­mus, Madison’s alt-week­ly, and The Pro­gres­sive magazine.

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Trump’s war on workers is flying under the radar, but it’s relentless

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It’s no secret that Donald Trump is not exactly out serving as the champion of workers he suggested he’d be during the 2016 campaign. But the scope of the attack he’s mounted on working people is staggering … and mostly under the radar.

Steven Hill rounds up some of the damage at Working In These Times: The Trump administration killed the Obama-era rule requiring federal contractors to disclose violations of labor law when they bid for contracts. They stopped the Obama administration’s effort to expand overtime eligibility so that millions more people would get overtime when they work more than 40 hours a week.

Then there’s the string of damaging National Labor Relations Board decisions, including a ruling against small unions within larger workplaces, the decision that got McDonald’s off the hook for workers in its franchise restaurants, and:

‚ÄĒ¬†Reversing¬†a 2004 decision bolstering workers‚Äô rights to organize free from employer interference.

‚ÄĒ¬†Reversing¬†a 2016 decision safeguarding unionized workers‚Äô rights to bargain over changes in employment terms.

‚ÄĒ¬†Overturning¬†a 2016 decision that required settlements between employers and employees to provide a ‚Äúfull remedy‚ÄĚ to aggrieved workers, instead of partial settlements.

Over at the Occupational Safety and Health Administration, meanwhile, they’ve delayed three important workplace safety rules. And, of course, the Supreme Court has said that employers can force workers into mandatory arbitration, denying them their day in court, and has also attacked public unions in the Janus decision.

These haven‚Äôt been high-profile issues, for the most part‚ÄĒthey haven‚Äôt gotten the attention of the Muslim ban or family separation or Trump‚Äôs hostility to allies‚ÄĒbut they stand to affect tens of millions of workers‚Äô lives, and even to end some of those lives.

This blog was originally published at Daily Kos on August 25, 2018. Reprinted with permission.
About the Author: Laura Clawson is labor editor at Daily Kos.

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A Rundown of All the Ways Trump Is Overseeing an All Out, Under-the-Radar Attack on Workers

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Amidst headlines about porn stars and bromance with Russian President Vladimir Putin, it can be hard to track the many ways the Trump administration is hurting workers in the United States. The Supreme Court’s Janus ruling that struck a blow to unions’ ability to collect membership dues held a brief spotlight in the national news churn. But in a more-quiet fashion, the Trump administration already has been slowly dismantling worker protections, especially those enacted under the Obama administration.     

During his presidential campaign, Donald Trump repeatedly proclaimed that he would help workers. He even boasted,¬†‚ÄúI have great relationships with unions.‚Ä̬†But actions speak louder than words, and the policies pursued by the Trump administration have directly targeted middle and lower-income workers and labor unions.

The anti-labor attack gained momentum in the last weeks of 2017. President Trump had to wait until his two nominees to the five-member National Labor Relations Board (NLRB) were confirmed. Those new members flipped the board’s majority from Democratic to Republican. The NLRB, which oversees collective bargaining law and enforcement of U.S. labor laws and standards, then quickly issued a slew of key decisions that rolled back a number of worker- and union-related reforms.

In one of the most important changes, the NLRB reversed a 2011 ruling that helped workers form smaller unions within a single workplace. The precedent set under Obama allowed the holding of a union election without including all the different types of jobs within that business that don‚Äôt share similar job duties, wages and working conditions. Employers complained that it led to ‚Äúmicro unions.‚ÄĚ In a¬†specific case, after 100 welders unionized at a large manufacturing plant, the NLRB ruled that the smaller organizing unit was illegitimate since any union election would have to include all 2,500 workers at the company, spanning 120 job classifications. The NLRB ruled 3-2 along partisan lines.

Another consequential case decided under Trump will hurt low-income fast food workers. The Trump board overturned a major 2015 decision that ruled employers are responsible for bargaining with workers, even if they have only indirect control over those workers’ employment. Fast-food companies like McDonald’s license smaller franchise businesses to run most of their restaurants. McDonald’s instructs these franchises on how to operate but leaves them to control many aspects of their day-to-day business. For decades, franchise employees who wished to bargain collectively were caught in a vicious trap. Their boss, the franchise operator, could insist that McDonald’s controlled the terms of their employment. But if they tried to bargain with McDonald’s, the company would insist that the franchise operator was their true employer.

Obama‚Äôs NLRB solved this problem by¬†clarifying that companies like McDonald‚Äôs¬†are, jointly with franchise operators, employers of these workers and can be forced to the bargaining table. This new standard permitted much more meaningful collective bargaining among millions of low-wage workers. Longer term, that ruling on joint employers would have dramatically improved collective bargaining rights in the fast-food industry. But the GOP majority on the NLRB scrapped this standard, returning to an old, stringent policy that requires employers to exercise ‚Äúimmediate and direct‚ÄĚ control in order to be liable under labor law.

Other damaging decisions by Trump’s NLRB include:

‚ÄĒ¬†Reversing¬†a 2004 decision bolstering workers‚Äô rights to organize free from employer interference.

‚ÄĒ¬†Reversing¬†a 2016 decision safeguarding unionized workers‚Äô rights to bargain over changes in employment terms.

‚ÄĒ¬†Overturning¬†a 2016 decision that required settlements between employers and employees to provide a ‚Äúfull remedy‚ÄĚ to aggrieved workers, instead of partial settlements.

All of these were 3‚Äď2 decisions, with Republicans in the majority and Democrats dissenting.

Beyond the NLRB

But the NLRB is only one federal agency. Trump‚Äôs Labor Department has also rolled back several rules and executive orders that the Obama administration issued to protect workers. Those include the Fair Pay and Safe Workplaces rule, which required companies bidding for large federal contracts to disclose and correct past labor and safety violations. Another rescinded rule had established guidelines for when states can drug-test applicants for unemployment insurance benefits. Also rescinded was the “persuader rule,” which required law firms to publicly disclose any work they do for employers trying to fight against union organization efforts.

Meanwhile, the Occupational Safety and Health Administration (OSHA) has delayed three workplace safety rules issued during the last year of Obama’s presidency. Those rules required certain employers to submit injury and illness data electronically to OSHA for publication on the agency’s website; tightened exposure standards for silica dust, which is often breathed in by certain construction workers and linked to lung disease; and weakened workplace exposure limits for beryllium, an industrial mineral linked to lung cancer.

The Supreme Court also ruled to allow employers to¬†require workers to sign arbitration agreements that waive their rights to file class or collective action lawsuits. Last June, Trump’s acting solicitor general filed a brief with the Court that took the opposite stance from the Obama administration, asserting that mandatory arbitration agreements do not violate the National Labor Relations Act and are enforceable under the Federal Arbitration Act.

Another important ruling made under the Obama administration regarded which workers were eligible to receive overtime pay. The Obama-era rules required nearly everyone paid less than $47,476 a year to be eligible for time-and-a-half overtime pay when they worked more than 40 hours a week. That was a big jump from the $23,660 threshold in place since 2004, and a cornerstone of the Obama administration’s efforts to lift wages. But a federal judge in Texas blocked that rule a week before it was scheduled to take effect, and Obama’s Labor Department appealed. However, Trump’s Labor Department filed a brief in federal appellate court indicating it will not advocate for these overtime changes.

In addition to all that, the Trump administration has proposed¬†$2.6 billion in budget cuts‚ÄĒan enormous 21 percent‚ÄĒto the Department of Labor. Those cuts include a proposed elimination of four department programs and their services, such as training for worker-safety and for migrant farmworkers. The budget also seeks to significantly slash funding for Job Corps, a program that provides job training to disadvantaged youth, by $407 million, or 24 percent. Dimitri Iglitzin, a labor attorney in Seattle, says that ‚ÄúOf all of the ways that the Trump administration has been crushing labor, the most important has been the neutering of the Department of Labor. On a day-to-day basis, the agency that should be fighting for working people is doing so no longer.‚ÄĚ

Typically, when the U.S. government shifts from a Democratic presidential administration to a Republican one, a certain level of pro-business policies and erosion of labor rights is expected. However, many labor experts say that the presidency of Donald Trump has led to a repeal of Obama administration regulations that is unprecedented, and is proceeding faster than is typical under a new GOP administration. Celine McNicholas, labor counsel at the Economic Policy Institute in Washington D.C., says the Trump rollbacks of various pro-labor rules and regulations, in addition to deep cuts to the Labor Department’s budget, have been devastating to U.S. workers and¬†‚Äúare not business as usual.‚ÄĚ

In just over a year and a half as president, Donald Trump has wiped away a number of the modest policy gains that organized labor made during the Obama years. The nominees he chose to fill crucial regulatory roles already are making it more difficult for workers. Taken together, this blizzard of decisions will hurt millions of workers and weaken their abilities to unionize and bargain collectively.

Another way forward

But it does not have to be like this. Germany, Sweden and other EU member states show another path that is better for workers and that creates a stronger relationship between businesses, employees and trade unions.

Countries like Germany and Sweden have stronger labor laws than in the United States, and consequently more influential trade unions. In addition, many EU member states benefit from what is known as ‚Äúco-determination,‚ÄĚ which includes works councils at every job site and worker-elected boards of directors for the biggest of businesses, including Fortune 500 companies. Imagine if Walmart and Amazon were legally required to allow its workers to elect up to 50% of the members of its board of directors? It‚Äôs unimaginable to most Americans, yet this is standard practice throughout Europe. Co-determination fosters a ‚Äúculture of consultation‚ÄĚ and a degree of economic democracy. As a result, there is more broadly shared prosperity, with social supports like universal health care, child care, affordable university education, affordable housing, job training/re-skilling, workplace protections, a decent retirement and more.

In an age of growing inequality, the European practice of co-determination has broken with a strictly ‚Äúshareholder model,‚ÄĚ and has set a standard for corporate governance that holds great potential for the digital age if used in a widespread fashion.

Labor attorney Thomas Geoghegan has proposed that U.S. states should try out codetermination. Geoghegan says states should offer tax breaks to companies that allow rank-and-file employees to elect a third to a half of its corporate board of directors. Doing so, says Geoghegan, would allow U.S. companies to test drive an alternative model to the current dysfunctional stockholder model. Also, states could try out this model by requiring that nonprofits, NGOs and universities allow their employees to elect a portion of its board of directors or trustees.

Three senators (Democrats Tammy Baldwin, Elizabeth Warren and Brian Schatz) have introduced legislation that would require that companies allow workers to elect one-third of their corporate board. The bill is not expected to pass, and while the AFL-CIO has endorsed this legislation, historically unions and labor advocates have not taken up this cause. Yet labor leaders don’t seem to have any other proposals that might stop the hemorrhaging of union members.

Certainly such progressive proposals are going nowhere at the federal level under the administration of Donald Trump. So the landscape for political change has shifted to states and to cities where Democrats and progressives are more dominant. Still, even when Democrats have been in control, whether at the federal level under President Obama or in heavily Democratic states like California, Maryland and Massachusetts, there has been little appetite to push the boundaries of ways to support labor unions or progressive labor reform.

Which is surprising, since the unionization rate in the United States has fallen to fewer than 7 percent in the private sector and 11 percent of all workers. And future prospects don’t look too bright.

In an age when many workers are becoming freelancers and contractors who supposedly are the ‚ÄúCEOs of their own business‚ÄĚ (whether driving for Uber, or being a hotelier for Airbnb, or a freelancer for Upwork and dozens of other online platform companies), the fate of labor unions hasn‚Äôt been this threatened in nearly a century. The Trump administration is just the latest nail in a slowly closing coffin that has been in process for decades. It‚Äôs time for U.S. labor unions to try new tactics.

This article was originally published at In These Times on August 17, 2018. Reprinted with permission.

About the Author: Steven Hill is a senior fellow at FairVote, a former senior fellow and political reform program director with the New America Foundation, and former Holtzbrinck fellow at the American Academy in Berlin. For more information, visit Steven Hill’s website at www.Steven-Hill.com and follow him on Twitter @StevenHill1776.

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