An essential delivery worker wearing personal protective equipment in Tribeca, New York, in 2020. Photo credit: Jennifer M. Mason / Shutterstock.com
Every worker in America has been affected by the coronavirus. Since the stay-at-home orders went into place, more than 30 million Americans have applied for unemployment benefits. Millions more, deemed “essential” workers, are taking life-threatening risks by simply continuing to do their jobs. Others are sudden telecommuters, putting in three hours a day extra on the job more as they work from home, at a time when many need simultaneously to be employees and homeschoolers.
It doesn’t have to be this way. The novel coronavirus is a natural disaster, but the consequences for American workers are a man-made one: They are the result of a grievously inadequate and inequitable social safety net and lack of worker protections. And our failure to build an adequate system of social supports, one that would have allowed us to better cope with the ravages of a pandemic, is itself attributable in large measure to a decades-long evisceration of the American labor movement.
While emergency measures like increased unemployment benefits and business loans are necessary stop-gap measures, we ultimately need a far more thoroughgoing reform of our economy and our politics. Giving working people power at work, across industries, and in our democracy, is the only way to ensure that out of this pandemic disaster we can build a more equitable America.
This roadmap to worker power is now more urgent than ever, but it now must be adapted to address the crisis of global pandemic. Such a program for reform must be particularly attuned to reforms that will empower women and workers of color as they are bearing the brunt of the pandemic’s devastation — both physically and economically. It must focus initially on safety and health issues broadly defined. And it must be bold, because only bold action can reverse the tragic trajectory we are now on.
As a nation, we have made the link between worker power and disaster response before. When faced with the Great Depression, Congress decided that a critical legislative response was legal protection for workers’ right to organize unions. Congress saw then that giving workers the right to form and join unions would enable them to demand higher wages and thereby to address the grave economic crisis of the nineteen-thirties, and passed the National Labor Relations Act.
The same basic insight holds today: By empowering workers, we can give them the ability to demand a more just economic order and a society far better able to protect us in times of need. Unfortunately, the labor law that Congress passed in 1935 is no longer up to the task of empowering working people. It forces workers to organize workplace by workplace among a smaller and smaller segment of the working population. As our labor market has evolved, as corporate power has concentrated, and as employers have become more brazen in flouting the law in the face of its weak penalties, our labor law has left workers without an effective path to building countervailing power. This has been clear for many years now, but the pandemic and the resulting recession has accelerated the need to reconstruct the law of worker organizing.
In January 2020, shortly before the full force of the pandemic hit, we released our plan for labor law reform — the Clean Slate for Worker Power project. Our initiative includes reforms that would allow workers to build power at every level at which corporations impact their lives — in the workplace, across industries, in the boardroom, and in the political realm — in a manner sufficient to countervail corporate power.
Inclusion: Many workers now deemed “essential” — including the delivery workers and drivers keeping millions of Americans supplied with groceries and medicines — are among the most vulnerable in our economy. A huge percentage of these workers are women and people of color. Part of their intense vulnerability comes from the fact that their employers have placed them outside the protection of any social safety net programs. Employers have done this by manipulating employment law rules and misclassifying these workers as independent contractors rather than as employees. For this reason, we recommend extending protection to all working people, ensuring that even so-called gig workers are entitled to basic rights like unemployment insurance and paid sick leave, and that all workers have the right to form and join unions.
Workplace protection: Essential workers across the country are engaging in collective action to protest unsafe working conditions. They are taking to the streets because they not being heard when they speak up one-by-one. We need to give these workers the security they need to call out unsafe conditions. Any effort to empower workers needs to start in the workplace for two reasons: (1) because many of the most critical aspects of workers’ conditions of employment are as unique as each workplace they must have a voice in shaping those unique policies and (2) the spirit of solidarity, which is essential to building collective power, happens in the personal relationships among coworkers. In this moment, when compliance may be a matter of life and death, workplace monitors are critical. Workers also need much stronger protections against retaliation when they do speak out. That means putting the burden on employers to justify a decision to dismiss any worker who has voiced safety concerns. It also means getting those workers who are fired unjustly their jobs back quickly. In Clean Slate, we recommend that every workplace include a monitor to ensure compliance with basic worker protection standards.
Workplace organizing: The best protection against unfair dismissals is solidarity in the workplace. Workers are recognizing in these perilous times that, while we need to keep a physical distance from each other, there is still strength in numbers. But our law puts up obstacles to union organizing under the best of circumstances. In the current context, it is almost impossible for workers — even those who are still on the job — to jump through the law’s hoops, such as requesting a union election run by a dysfunctional federal agency. The Clean Slate recommendations — to require that employers provide workers with a digital space to connect with each other, and to allow workers to demand union recognition without going through the bureaucratized election process — provide the only viable option for workplace organizing in the era of social distancing.
Sectoral bargaining: One of Clean Slate’s central recommendations is for collective bargaining to take place at both the workplace and by industry and occupation — sectoral bargaining. That’s the best way to meet the urgent need for greater collaboration and coordination between the government, corporations, and workers, in ways that do not put any one employer at a competitive disadvantage. Our report calls on Congress to create bodies that would allow workers and employers to meet and confer or negotiate binding minimum standards. We also recently issued a report with the Roosevelt Institute adapting Clean Slate’s recommendation for sectoral bargaining to the pandemic context, calling for the immediate establishment of sectoral committees to discuss COVID-related topics including workplace safety and health.
Our nation can and should do better by its workers. They are at the heart of the pandemic’s disastrous impact; they must be at the heart of how we successfully address it. Measures to give the labor more power in devising solutions should be treated as key elements of our nation’s emergency response.
Sharon Block is the executive director of the Labor and Worklife Program and lecturer on law at Harvard Law School.
Benjamin Sachs is the Kestnbaum Professor of Labor and Industry and faculty co-director of the Labor and Worklife Program, Harvard Law School.