The Future of Labor Law in the Post-COVID Economy

December 23, 2020 by Kate Michael

WASHINGTON — Labor law is constantly evolving. Early 2020 alone saw changes to federal overtime rules, 21 states increasing their minimum wage provisions, and the Department of Labor finally allowing H-2B job opportunities to be posted to its website. And then COVID-19 hit, and these reforms were just a sliver of the full scope of labor law changes that may be necessary as the pandemic fundamentally changed the nature of work. 

The American Constitution Society, a progressive legal organization, convened a panel of workplace rights advocates to discuss their suggestions for amending labor law to meet the needs of today’s workforce, including gig workers, while rebuilding a post-COVID economy. 

“Working people face… a rigged economy that works for only a few at the top,” said Nicole Berner, general counsel for Service Employees International Union. “We need labor law reform [that] puts workers at the center.”

Berner claims that the pandemic as well as multiple crises the nation is currently facing, including systemic racism and climate change, have really laid bare the dire need to work toward justice and fairness in the workplace. 

She offered that health care, the environment, and racial concerns are all “intersectional and feed on each other,” and that the pandemic has exposed the under enforcement of a worker’s right to a safe and healthful workplace, right to work without fear of retaliation, right to be free from invasive surveillance, and right to form and join unions to collectively make demands to benefit all workers.

“[The] care crisis in this country existed before the pandemic,” said Berner, who claims care workers, a focus of SEIU, have historically been left out of labor laws, and that federal and state officials should not shirk their role in guaranteeing these workers their rights. “Essential workers have really always been essential… but people of color, immigrants, and women have shouldered front line work during this time.” 

Gig economy workers, many providing care services, have also worked through the pandemic without any protection of labor employment laws. 

“They are called essential, but not treated as essential,” Berner said.

“There’s been a lot of talk about government relief efforts… We believe all government funds should go toward the creation and protection of good jobs.”

“Every worker deserves a living wage,” which she defines as a minimum of $15 per hour, “and the right to join a union… a real union. Workers providing essential services should be protected, respected, and paid.” 

Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School who also formerly served on the National Labor Relations Board and in the United States Department of Labor, also believes in the right of workers to join together to fight for better protection.

To this end, she is spearheading the program’s Clean Slate Project, which is “born out of the belief that we are experiencing a dual crisis of politics and economics that are undermining the stability of the economy and the social order in our country,” said Bloch.

“Labor law as it is now in our country is an obstacle to allowing workers to form organizations,” Bloch insisted, promoting the idea that the U.S. should set aside establishment-level bargaining and instead move toward sectoral-bargaining, as have France, Belgium, Austria, and Finland. 

“We have seen, through COVID, the devastating effects of what happens when workers don’t have a voice in decision-making,” said Bloch. “Countries with strong sectoral-bargaining systems came together more quickly to come up with strategies [for COVID].” 

Bloch believes that amendments to U.S. labor law should allow for greater inclusion – or building solidarity from the ground up – with meaningful collective action, a role for workers in corporate decision-making, expanding the kinds of decisions that workers have rights to bargain over, and democratic participation.

“We are finding ways workers could build power at every level in which corporate power impacts workers’ lives,” Bloch said. 

In addition, the Clean Slate project has released a report detailing potential improvements in training and protecting the workforce. 

“[These are a] longterm, but not completely fanciful, vision of what a labor law that was designed to empower workers could look like,” she said. 

The role of technology, vastly sped up during the pandemic, is also changing the ways workers work, as well as strengthening and maintaining gains through organizing. 

While tech has been used to surveil workers, determine schedules, and provide algorithms for hirings and promotions, ReNika Moore, director of the ACLU’s Racial Justice Program has also seen workers using tools and technology to protect themselves. 

“We are seeing workers use cameras and video to share with the world workplaces and imagery,” said Moore. She observed that, without this imagery, workers’ rights advocates would have to rely solely on oral testimony, which does not offer the same weight. 

“What’s [also] been really interesting about this time is how workers have been able to innovate,” said Berner, citing worker walkouts and strikes to improve working conditions held this year in car caravans, socially distanced protests, and on social media.

Workers’ willingness to fight for better protection, at the peril of job stability in a global pandemic’s precarious work environment underscores worker rights advocates’ insistence that current labor law must be evaluated. 

“We’re really relying on the goodwill of the employer to follow the law at this point… [even] penalties do not provide a deterrent effect at all,” insisted Bloch. “[We have a] labor law where the cost of penalties can be easily absorbed as a cost of doing business.” 

All three panelists desire amendment to current labor law. But in the absence of legislative action, there are executive actions that they suggest President-elect Biden could take, including using procurement power for health care contracts to influence and mandate responsible employer policies.

Said Berner, “The president can act — and we have every expectation he will act — as a first priority after January 21st.” 

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