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Harvard Wants to Save the Working Class

The burning task for the labor movement isn't to craft new pro-worker laws, but to build working-class power. Pro-worker legislation comes from workers flexing their muscles, not the other way around.

Boston Public Library / Flickr

On Labor Day, the “Clean Slate for Reform,” a labor law project based at the Harvard Law School, released a report on progress on its “tasks ahead.” The Clean Slate effort, led by two Harvard academics and including eighty participants, believes that Americans have a “shared national understanding” that economic and political power are out of whack in the country. Like the Labor Law Reform Act of 1977 and efforts before and after it, the idea is to combat inequality and arrest the decline in worker organization through a reasonable set of legal reforms that fit with modern times.

Previous efforts have failed, even during Democratic administrations, but the academics believe that this time it can be different. Of course, any brilliant legal theories which arise from the Clean Slate project will have to be accepted by a perennially anti-worker Congress or endorsed by federal courts packed with corporate judges, a tough sell to say the least.

Having represented every union active in the South during my legal career, which has coincided painfully with the long, slow decline of the union movement, I was saddened by the report on the initial tasks of the Clean Slate project. The authors, while well-intentioned, miss the main task in combatting inequality: respecting and building worker power and agency, to which militancy and democracy are central.

The question in front of the labor movement is not one of skillful legal drafting, but of power. Like with the Civil Rights Act of 1964, positive movement in law comes from power, not the other way around.

No Common Ground

The Clean Slate project’s first stated task in its recent update is to “reimagine collective bargaining.” Certainly collective bargaining, like all working class struggle, must fit with current conditions to find success. Ideas such as sectoral bargaining, and the legal structures necessary for its flowering, deserve consideration.

How sectoral bargaining could come to pass, however, given the fissuring of the economy and the current state of power relationships, is hard to fathom, no matter how cleverly legal structures are drafted. Like a number of the ideas in the Clean Slate report, sectoral bargaining is in no way inherently bad, but it misses the key question of how worker power is built.

The focus here should be on reaffirming the dedication to the collective. The demonstration slogan “in unity there is strength” is timeless for workers and has been the way forward since the time of Spartacus. Yet some participants in the Clean Slate project, like former SEIU Local 775 President David Rolf, view labor law changes through the Aspen Institute’s “Future of Work” lens.

Rolf and others have made common cause with men at Aspen like Mitch Daniels, the former Indiana governor who led the effort to make Indiana a “right-to-work” state. This institute, financed partially by Koch brothers’ money, features a belief in a “new capitalism” which glorifies independent work. “Independent” is just a fancy name for part-time, and part-time work has always been around, especially for workers struggling to survive.

But these initial reports seem to say that the project believes that instead of fighting the fissuring of the work force, we must accept the death of full-time jobs. Instead of fighting this trend, the project argues that we should reform anti-trust laws so that each American can be a little business who can unite with other little businesses.

And underpinning this part of the effort is the false claim of an explosion of independent work and the gig economy which has been breathlessly embraced by “progressive” academics and philanthropic labor leaders. Gig economy advocates were recently embarrassed when a US Bureau of Labor Statistics report on independent work showed no discernable increase in such work. Undeterred, those who are fronting for the gig economy narrative are desperately trying to debunk this data.

But the unfortunate ideological bent of the project is most clearly revealed in the task of advocating for portable benefits — insurance and paid time off not tied to any one employer. Today, the concept of portable benefits is a wolf in sheep’s clothing.

The Portable Benefits movement had its coming out party in 2015, in a letter called “Common Ground.” In it, a collection of SEIU-affiliated labor leaders, heads of philanthropically financed “worker” organizations, left- and right-wing think tanks, gig economy companies, and anti-union advocacy groups called for an end to wage and hour litigation against gig economy companies and the promotion of a utopian vision of “independent” work.

This effort was skillfully engineered by former Obama staffers and championed by David Rolf and Andy Stern. To deal with the fact that Uber and Lyft drivers generally have no health care, pensions, workers compensation or unemployment insurance, this letter offered an amorphous concept of portable benefits as a sop to suffering workers.

Yet portable benefits already exist.  Social Security and Medicare are portable benefits. And multi-employer benefit funds are extraordinarily active in the unionized construction industry.

The Ubers and Lyfts of the world are spending tens of millions on lobbyists, lawyers, celebrities to defeat any idea that their workers are employees. For these gig economy companies, the portable benefit movement is a precious fig leaf to cover the truth that their profits, if they have any, come from not providing health care, pensions, or minimum wages and not paying workers compensation, Social Security, or Medicare taxes on their workers.

The most embarrassing moments in the labor movement in the last several years have not been the occasional meetings of union presidents with Trump but the continuing willingness of these “new labor leaders” to openly hug and smooch gig economy companies who are one of the main forces of precarity in our country. Rolf, for example, recently united with the Uber CEO in a joint letter for portable benefits at the same time an epidemic of suicides was occurring among taxi drivers in New York whose livelihoods had been crushed by Uber’s wholesale greed.

Further, among the Common Ground letter signers was Handy, a cleaning company that is leading a national movement to resist employee status for its workers. Leaders of the well-respected National Domestic Workers Association who united with Handy on the Common Ground letter have had to fight the company in several states.

Yet even today, the NDWA publicly lauds Door Dash, a gig economy food delivery company, as a “Good Work Code” employer. Door Dash is aggressively enforcing mandatory workplace arbitration against its workers. Leaders of the #MeToo movement have correctly argued that mandatory arbitration takes away the legal ability of those who are sexually harassed at work to effectively fight back. And Door Dash, along with other gig economy companies, is spending millions to overturn or frustrate a recent California Supreme Court opinion which found that its drivers are workers not independent contractors.

For the Clean Slate project to sign on this with this view of the inevitability of the end of jobs is a serious error that can taint all its work.

The project also endorsed the increasingly trendy idea of wage boards. Wage boards have been around for many years with little success. The idea is that workers’ wages and benefits would be essentially set by “independent experts” in many areas of work. Advocates for labor and management would present evidence, as is sometimes done in “interest arbitration,” and each would be forced to accept what these experts found.

Fifty years ago, I was arrested in Louisiana along with two other organizers for felony trespass while attempting to gather information to present to a wage board for sugar cane workers. This federal wage board was established as the government was providing hefty subsidies to sugar companies while the workers lived in houses on plantations which were built for slaves. Yet workers in this industry are still treated poorly.

Maybe wage boards will be helpful in Seattle and New York City, with their more developed progressive communities. But wage boards that are not backed up by shop-floor power can end up adding a false picture of workers’ consent to bad deals.

Labor and Philanthropy

An additional task looks at the formation of different types of worker organizations. The project argues that new forms will, among other things, fill the gap of “language instruction, immigration services, and skills training” needed by workers. Yet construction union locals throughout the South are doing this every week. The best workers centers have spectacular programs covering these services as well.

Further, the AFL-CIO has tried these “union-lite” efforts with mixed success, and many workers centers today, unfortunately, have little worker agency baked in. An honest analysis of why existing “new forms” are not succeeding is needed before new forms are fetishized.

It is cool to talk about new things and to claim the benefits of “disruption” and “innovation.” But if these new forms follow a mantra of philanthropy and social entrepreneurship and led by folks who publicly speak of unions being as useful as the telegraph, as David Rolf recent did to his “innovation hub,” Oakland’s Workers Lab, the effort will ultimately be harmful not helpful in assisting worker power.

Further, all of these new forms will require philanthropic money. Getting involved in the philanthropic industrial complex means that worker advocates spend much of their creative energy trying to figure out how to get money from groups like the Ford Foundation, which is headed by a PepsiCo board member.

Ironically, the Clean Slate project is “made possible by the generous support of the Ford Foundation.” Executive directors of non-profits report to foundation staff, not workers, though they claim otherwise.

Increasingly, the lines between philanthropy and the philanthropic labor movement are blurring. Several prominent members of the philanthropic labor movement sit on foundation boards.  They are thus in a position to distribute as well as receive foundation largesse.

Let’s be frank. Many of the participants in new labor want a movement with good jobs for folks like them. And, as Upton Sinclair wrote, “It is difficult to get a man to understand something when his salary depends upon his not understanding it.”

Between the social entrepreneurship mantra which essentially teaches that “the revolution will be monetized,” to the pre-Janus explosion of union researchers with Ivy League degrees, to former labor leaders who run private equity firms today “leveraging” their union contacts, many of those involved are worried about their paychecks. Sashaying around the world on Open Society or Rockefeller or Ford money is fun!

The Greater Harm

Of course, all humans think about this and making a living is an existential concern, especially among workers. Candidly, I have made my living off the labor movement. Workers’ dues paid for my legal services to unions and I received a percentage of what I won for workers who had been discriminated against, cheated on their paychecks, sexually harassed, or hurt at work. And none of this is to say that the present union movement does not need major changes.

First, we have to be honest about and learn from our defeats. For example, the crushing rejection of the UAW at Nissan in Mississippi in 2017, one state I work in, should give all pause.

The workforce at this facility is primarily African American, and the vote came before the full exposure of the ongoing UAW scandal in which officers, using money which should have gone to workers, bought bling like Christian Louboutin shoes. Red-bottomed stilettos will appear on many anti-union leaflets for years to come.

Major important questions confront us. What do unions really offer a worker today, and why should one pay dues? Why should one join with others if there is a chance you will be fired for it? How are we going to deal with questions of gender and race in a way that strengthens the movement? How should politics and economics be prioritized in organizations in which members’ lives are becoming more and more precarious? How can real democracy be returned to union organizations?

How can we build unity among workers of all colors and identities? In this time of Trump and right-wing populism, today has a similarity to the 1960s and 1970s when affirmative action swept southern workplaces and George Wallace’s racist populism tempted many white workers.

During that time, I was involved in countless discussions with workers and unions as to why unity is the only solution to a better life of all — even if white workers have to lose some of what they counted on, such as their place in a seniority line. It is a hard sell but unity can be achieved, if a believable vision of a healthy future is presented, and if all workers are treated with justice and compassion.

Importantly, Clean Slate is symptomatic of a growing split in the labor movement, between those who prioritize worker leadership and militancy, and those who argue workers’ only hope is to unite with the “progressive” corporate elite. This philanthropic labor movement is similar to the New Democrats which ascended in the 1980s. The New Democrats, with Bill Clinton as their public face, gave the country NAFTA, welfare reform, a globalization of precarity, and more.

As the lawyer for the Arkansas AFL-CIO during that time, I remember the problems we had with “worker-friendly” Governor Bill Clinton. Bill Becker, a meat cutter from Chicago who moved to work in the Southern labor movement, was the president of the state AFL-CIO.

After Clinton had reneged yet again on a promise to improve Arkansas’ miserly workers compensation and unemployment insurance benefits, a frustrated Becker told a national reporter that Clinton was the kind of guy who “smiles in your face, while he is pissing on your leg.” The corporate elite today, in philanthropy and the gig economy especially, will do the same.

We may be seeing an upsurge in labor militancy. When it comes it will enlighten us all. Workers’ experiences give the best understanding of the way forward. Proposals from well-meaning people at Harvard are fine, especially as to technical legal points, but I hope that the folks working on Clean Slate make a course correction. If they do not, all their good efforts are likely to be in vain and may, as Anand Giridharadas, author of Winners Take All: The Elite Charade of Changing the World, wrote, become “an accomplice to even greater, if more invisible, harm.”