Works-in-Progress Group 5: Workers’ Rights

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Group 5: Workers’ Rights 

Legislating Dignity at Work 

Jennifer Lee, Temple 

Low-wage workers are having a tough time, with the plight of the low-wage worker closely intertwined with racial and economic inequality in the United States. Worker movements, however, are responding by fighting back against workplace harm. These movements are organizing at the grassroots level, focused on the most marginalized workers who are often outside the reach of unions. They have gotten laws enacted to address minimum wage, wage theft, misclassification, meal and rest breaks, paid sick leave, fair scheduling, retaliation, non-compete agreements, fair chance hiring, and temp agencies. While the enactment of these laws is overall a great success, a closer examination reveals that the picture is more complicated. My purpose in this paper is to explore this phenomenon based on my clinic’s work with local worker movements over the past decade. It seeks to contribute to the descriptive studies of local low-wage worker organizing that examine how such movements are countering racial and economic inequality. In particular, it looks to understand the vision being voiced by grassroots groups and consider how legislative advocacy accomplishes that vision. I argue that the wins for worker movements mostly lie in the components of legislative advocacy that involve building the solidarity and power of the movement itself. In some ways, this is a familiar tale about some of the limits of law to produce social reform, particularly the kind that seeks to fix racial and economic inequality. Yet before jettisoning the law altogether, it still has an important role to play—from its purpose pre- and post-enactment as the focal point of the organizing to the ways in which it can be used to more fundamentally disrupt the oppression of low-wage workers. The potential roles that law can take on help to suggest how and when the law (and even lawyers) can come to support worker movements in accomplishing their long-term vision. 

Labor Arbitration as Access to Justice 

Sameera Mangena, Georgetown 

My proposed paper argues that labor arbitration – referring to the systems that unionized workers and their unions collectively bargain with their employers to resolve disputes – is an understudied and underutilized way for workers to access justice. In making this argument, first, I explain current barriers to workers accessing justice, including the weakening of administrative agencies that enforce workplace law, the proliferation of prohibitions on class action lawsuits in employment contracts, etc. Second, I explain the features of labor arbitration, with some attention paid to the differences between labor arbitration and forced employment arbitration, and the ability to assert statutory claims (sometimes akin to private rights of action) in labor arbitration that might otherwise be required to be administratively exhausted or do not allow for private rights of action. Third, I explain how the features of labor arbitration make it a process uniquely positioned to effectively allow workers to vindicate their rights in the workplace, as a purely legal matter. Fourth, I explain how the history of labor unions and their unique status as organizations that can provide legal services but are not meant to be purely direct legal services organizations, facilitates workers using labor arbitration to further collective action goals, empower workers, and improve access to justice for workers in other ways.  

Discussant: Annie Smith, University of Arkansas