The Better Deal That America’s Workers Deserve

The courts and Congress have done a lot of damage to their power to act collectively. State and local policymakers could give them a fairer shake.
October 19, 2017
Protesters outside the U.S. Supreme Court, as the justices heard arguments in a case about union dues. (AP/Jacquelyn Martin)
By David Madland  |  Contributor
Senior fellow and senior adviser to the American Worker Project at the Center for American Progress

The Supreme Court is poised in its 2017 term to decide several key cases that will have a major impact on the working conditions Americans face. Now that Neil Gorsuch, President Trump's ultra-conservative, pro-corporate appointee, has joined the court, most analysts are predicting losses for workers' ability to take collective action.

People need to be able to band together to get a fair shake in their dealings with powerful corporations and large government bureaucracies, yet the Supreme Court is likely to make it much harder for them to do so by distorting existing laws and engaging in pro-corporate judicial activism. These cases should serve as a call to action for policymakers -- especially those at the state and local level of government -- to assert that workers have the right to join together to improve their workplaces and communities.

This term, the court will decide whether employers can force employees to sign away their right to sue in class-action or collective lawsuits. If it decides in favor of employers, many workers will have to use a private arbitration system -- a system in which employers win four out of five cases -- to settle such issues as whether a company has discriminated against women and minorities or failed to pay overtime. Individual workers would be very unlikely to be able to go to court, as the costs of legal representation is often more than the harm to any single victim. If the Supreme Court sides with large employers, it would overturn key parts of the 1935 law that codified workers' rights to take collective action.

In another critical case, Janus v. AFSCME, the court will decide whether the fee that public-sector unions charge non-members who benefit from the union's bargaining over pay, benefits and other issues is legal. Unions bargain for and represent all workers in a unionized workplace -- whether they are members or not -- and so they charge a fee to non-members to cover their costs, a practice that courts have upheld many times. The Supreme Court now appears poised to allow free-riders to gain benefits of union membership without having to pay the costs of representation, a decision that could further decimate union finances and undermine the ability of workers to improve their working conditions.

Underlying these latest threats is the fact that over the past four decades, Americans have lost power and control over major aspects of their working lives. The courts and especially Congress have tilted the balance of power in favor of corporations and the rich so that no matter how the Supreme Court rules on these cases, the deck will still be stacked against people who work.

This has all occurred as the nature of the employer-employee relationship has undergone profound changes. The percentage of workers now in "alternative work arrangements" -- working at temporary help agencies, on call, at contract firms or as independent contractors -- has increased sharply, from 10.7 percent in February 2005 to 15.8 percent in late 2015. And the percentage of workers in unions has plummeted from 24 percent in 1973 to less than 11 percent this year.

Tellingly, per-capita GDP has roughly doubled since 1970, but workers' wages have effectively stagnated over this period. Meanwhile, the share of the nation's income going to the top 1 percent, as well as corporate profits, have hit near-record levels. All that money has helped those at the top gain much greater control of government.

Congress is primarily to blame for this shift in power. Taken with its actions to cut taxes on the wealthy, encourage outsourcing and enable Wall Street speculation, as well as its failures to raise the minimum wage, strengthen workers' union rights or promote full employment, Congress has actively crippled the power of American workers.

But the courts have been part of the problem as well. With a series of campaign-finance decisions culminating in Citizens United, the Supreme Court enabled unlimited political contributions from corporations. And several warped interpretations of union laws have made it harder for workers to exercise their rights or for states to impose standards stronger than those set by the federal government.

Going forward, state and local policymakers have the opportunity to lead the way in putting people who work on a more even footing with their employers. Policymakers should step up and develop new ways for workers to take collective action. They could, for example, build on the wage board that New York state used to raise fast-food workers' pay to $15 an hour, or Seattle's new law to help gig workers unionize. Even though this Supreme Court term could be very bad for people who work, some good can come if state and local policymakers seize the opportunity to chart a path forward.