The U.S. Supreme Court’s reputation is like the 1980’s sitcom “Night Court.” There is chaos. But it’s not funny. This essay focuses on four recent, but confused, originalist-related decisions to prove its case that the conservative majority’s preferred interpretive method is at the root of this dysfunction. Then the essay argues that a solution to the Court’s interpretive problems is the use of a two stage “new pragmatism.” Pragmatism means the Court is reasonable, pluralist, and seeks the best result, not ideological absolutes. Think William James and his treatise, Pragmatism: A New Name for Some Old Ways of Thinking. Interestingly, most of my constitutional law colleagues admit privately that they want to see judges being more pragmatic.
Now, I acknowledge that former U.S. Supreme Court Justice Breyer has just written a book advocating pragmatism. But the approach here differs. Nonetheless, it is encouraging to see burgeoning scholarship taking this view, such as those put forward by Daniel Farber, Jamal Greene, Suzanna Sherry, and Robert Tsai.
One major problem with the four cases I highlight here—the four horsemen of the originalism apocalypse if you will—is arbitrariness. In 2022, the Court, in Dobbs v. Jackson Women’s Health Organization, misused history and overturned Roe v. Wade, rejecting a 50-year-old fundamental right to abortion. The majority found “that the right to abortion is not deeply rooted in the Nation’s history and tradition,” but constitutional scholars and litigator David H. Gans counters that the “rights to control one’s body, establish a family, and have children—all deeply rooted in the Fourteenth Amendment’s text and history—necessarily safeguard the right to abortion as a fundamental right.”
In 2023, the Court barely mentioned originalism while authoring its seismic decision in Students for Fair Admissions v. Harvard, outlawing affirmative action in university admissions. The Court's omission was essential because the Freedman's Bureau of the 14th Amendment period was designed to affirmatively help the newly freed slaves.
Originalism, malleability, and inconsistency were again on display in 2024, in the Court’s decision in United States v. Rahimi. In that case, the Court upheld a law that banned individuals subject to domestic restraining orders from owning firearms. This was a liberal result but was reached on originalist grounds. Nonetheless it further showed that the Court was inconsistent on originalism. Justice Clarence Thomas dissented, stating, “Not a single historical regulation justifies the statute at issue,” thereby disagreeing with Chief Justice Roberts and Justice Amy Coney Barrett.
Finally in Trump v. United States, the Court rendered a surprisingly policy-oriented decision in broadening the criminal immunity of the President. Chief Justice Roberts decided that the President was immune for criminal acts at the outer perimeter of his official duties and the core of his official duties. He reasoned that easily criminally prosecuting the President was a huge separation of powers intrusion. It might deter the President from acting in the best interest of the nation. Yet this would seem to place the President above the law.
To sum up, a supposedly institutionalist, Chief Justice John Roberts has actually created an activist, politicized Court that eagerly reverses precedents and bypasses stare decisis. A comment in the Harvard Law Review asserted that, “today’s Supreme Court serves as a useful specimen for studying the manipulability of stare decisis.” The problem is that public opinion polls show that the Court’s overall rating has declined dramatically, and perceptions that the Court is political have risen. The Court is not elected so these changes are very dangerous for its legitimacy. Even before these decisions, commentators, legislators, the president, and even judges discussed the need for Court reform, especially getting rid of life tenure, the need for ethics rules, and perhaps even expanding the number of Justices, in a 2021 report by the Presidential Commission on the Supreme Court of the United States. Calls for reform, particularly ethics reform, have only increased in the wake of these decisions along with reporting that Justice Thomas and others have for years accepted lavish gifts and trips from wealthy patrons.
The Court’s decisions have had dreadful consequences. Conservative former Congresswoman Liz Cheney agrees. For example, women have diedunder new restrictive state abortion laws. Many universities have shut out more minorities. And that means the judges, the lawyers, and police in our criminal justice system will remain all too white and the institutions in which they work will remain all too dysfunctional. There is an operational need for diversity in law enforcement, as Vanita Gupta, former U.S. Associate Attorney General, recognizes. While previously serving as Head of the Civil Rights Division, she noted that “following our investigation of the Ferguson Police Department – where African Americans make up roughly 67 percent of the city’s population but, earlier this year, accounted for less than 8 percent of its police force – our report addressed the connection between the department’s lack of racial diversity and undermined community trust.” Moreover, the Court disagrees about its own originalism. And the nation has a corrupt former President who, thanks to this Supreme Court, now has more power to commit crimes after winning a second term in office. What a combination.
To forestall further reputational and precedential damage and restore some faith in the judiciary, the Court should instead adopt a two-part practical method for deciding constitutional cases. In the first stage, the Justices should examine all the major modalities of constitutional interpretation, such as text, precedent, originalism, structural principles, and morality (think Philip Bobbitt). The Justices in a particular case should rank the strength of both sides’ arguments in each of these areas. One model, though not the only available, would be to use a grid with one to ten scores for each modality as a guidepost. Political scientists have certainly used numerical data already to assess certain aspects of the Court’s decisions.
After stage one, the Court would reach a preliminary conclusion. But in stage two, the Court would engage in an open-minded, inductive, transparent, contextual, and empirical determination of which result makes the most sense. The Justices would also engage in balancing the interests of the two sides as part of this analysis. Admittedly, the pragmatic result would usually prevail, but not always if some other modality scored very high. The Court could also use a numerical grid here, whether openly or not.
To put it bluntly, the Supreme Court is deciding “cases or controversies” and law is a practical science. The Court should therefore seek the best concrete result and use the finest possible method for getting there. Pragmatism is also a uniquely American approach as seen in the work of the previously mentioned William James and John Dewey.
Of course, the Justices will disagree profoundly along the way, including about which result is most pragmatic. But the Court would avoid the medieval, formalistic, and syllogistic debates over originalism that can’t justifyBrown v. Board of Education, and that can’t justify using the Fourteenth Amendment to protect women from discrimination. Instead, the Justices will take into account all of the major modalities, and focus on the one leading to superior results, pragmatism. To the extent this seems subjective, it’s called judging.
It is no secret that attorneys have been behind the greatest take-overs of democratic governments in modern times using their legal skills to put autocratic regimes into power. One of the more recent democratic government take-overs was Hungary by Viktor Orban, assisted by attorneys, as chronicled by Professor Kim Lane Scheppele in “Autocratic Legalism.” Attorneys rewrote the country’s constitution and election laws to guarantee power to Orban’s political party. As to the latter, we are already seeing this in the United States through extreme state partisan gerrymandering, with blessings from the U.S. Supreme Court. As to the former, implementation of Project 2025 would transform the executive branch of our federal government and presumably come with legislation to make its agenda law of the land.
Hungarian attorneys also made successful legal arguments in support of authoritarian policies. Hungarian attorneys loyal to Viktor Orban were appointed judges. All these attorneys helped dismantle the rule of law and weakened their government’s checks and balances.
The same thing is happening here in the United States. Civil rights like voting rights and reproductive rights have been set back fifty to seventy years. Judges now interfere in policy decisions better suited, and constitutionally delegated, to the executive branch. Bribery is legal if it is done after-the-fact. And a President’s criminal conduct can be immunized if it is loosely within the purview of his Presidential powers. The actions of the lawyers and judges who argued and ruled for these changes will have far-reaching consequences beyond some minimal change to social order.
‘Big Lie’ Emboldens Attack on Rule of Law
The most significant attack on our constitutional government occurred on January 6, 2021, when former President Donald Trump convinced many Americans that he, and not Joe Biden, won the 2020 election. Trump manipulated these Americans into believing their votes were not counted or completely discarded, and for believing him, many were indicted, arrested, convicted by a jury of their peers, and sentenced to jail time. Trump was assisted by many Congressmen and Senators, many of whom are attorneys, in his effort. And for the insurrectionists’ part, it is expected they will be freed now that Trump is President once again.
A democracy is not a democracy if the populace cannot choose (or believes it cannot choose) its elected officials in a representative government. A democracy is not a democracy if the populace cannot also rely on the rule of law. Otherwise, it becomes an autocracy much like Orban’s Hungary or Vladmir Putin’s Russia. Now that Donald Trump has won re-election, part of our country may now think concerns over autocracy have been allayed. Nothing could be further from truth.
Since the attack on our Capitol, political leaders, many of whom are lawyers, spread and amplified the ‘Big Lie.’ They did not engage in free speech because it was not valid political dissent against some government policy. Rather, they outright attacked the foundation of our constitutional government without bases.
Attorney Politicians Aid & Abet
Attorney politicians like Ted Cruz and Matt Gaetz, with no evidence and contrary to Republicans who spoke against the ‘Big Lie,’ continued to insist the 2020 election was “stolen” and Joe Biden was not a legitimate President. If this argument could not be made in court, it should not have been made in public. It should not have been normalized.
Then, we have attorney celebrities like former Judge Jeanine Pirro who, it has been discovered, aired “news” related to and promoting the ‘Big Lie’ that was false. Despite a staggering $1.6 billion settlement between Fox News and Dominion Voting Systems, measuring the gravity of the lie, the lie persisted and led to further attacks on our constitutional government by the people sworn to protect it – attorneys. The lack of a centralized, unified condemnation of the ‘Big Lie’ emboldened people who fed these lies to the American public. These bad faith actors continue to do the country further harm including through attacks on the rule of law.
Attacks on Legal Process
Recently, in the shadow of former President Trump’s state court criminal conviction for fraud, Senator Tom Cotton, also an attorney, attacked the jury verdict with unfounded statements like “it was rigged from the very beginning.” “[The judge] at every turn ruled in favor of the prosecution,” and “the reason why you have this weaponization of the legal system is because Joe Biden can’t defend his weak, failed record.” Tom Cotton did not go to the preliminary motion hearings, the trial, or posttrial hearings. Cotton did not review and analyze the many state law legal issues or factual questions raised, like the judge or jury did. Tom Cotton did not listen to the evidence or evaluate the credibility of the witnesses. A jury did, and that jury unanimously found the former President guilty on thirty-four criminal felony counts. While Cotton may not agree with the law, attacking the process is devastating to democracy, putting into question the fairness of trials for all Americans.
Besides providing cover for a convicted felon, attacks like these are additionally harmful in other ways. They degrade the rule of law much like the ‘Big Lie’ does by implying to the world, although unfounded, that one “can’t get a fair trial” in the United States, especially if a former President with unpopular political views can’t. Notably, the New York trial and conviction was focused on violations of state criminal law. It was devoid of discussion about political views, ideas, and dissent. It was all about banking fraud. Cotton’s comments, by comparison, are chock full of politically charged mischaracterizations going beyond normal political dissent. His words breed distrust in a judiciary for no good reason, a judiciary that Americans – individuals and businesses – turn to every day for justice.
Attorneys take an oath when they are admitted to the bar, with some variation, to “support [protect, uphold, or defend] the law, the Constitution of the United States and the constitution” of their state in which they are being admitted. And yet, too many attorneys, concerned with gaining or holding onto status politically or socially, have defied the oath. They baselessly claim an election was stolen. They attack as biased the justice system charged with bringing criminals to justice with no basis or evidence. These attorneys stand on the verge of allowing the pardoning of many individuals found guilty of attacking our nation’s capital, not because they were fed the ‘Big Lie,’ but because it was somehow true and justifies their release. These individuals (the ones that believe the lie as opposed to the criminals who all along tried to do our country harm) will continue to believe the ‘Big Lie’ as will other Americans who support them.
Bar associations, especially state bar associations and their attorneys, should take heed and uniformly speak out against what is occurring and discipline attorneys where necessary who have or continue to promote the ‘Big Lie’ and other anti-democratic falsehoods that are putting us on the path to authoritarianism. Frankly, just because an attorney politician claims to engage in speech related to their job as a politician does not mean they have the character and fitness to be an attorney when that speech attacks the rule of law.
ABA Finally Speaks Up
This past August/September, American Bar Association (ABA) President Mary Smith spoke out that “Lawyers Must Protect Democracy Now,” citing a “disappearing trust” in our democratic institutions. Properly, President Smith noted, “it is our oath to [actively] uphold justice and the Constitution,” but “many lawyers are not fully engaging with their ethical obligations . . . diminishing the profession’s role as keepers of democracy and the rule of law.” The ABA formed a task force to help people understand the electoral process. While sorely needed, it does not do enough to combat the avalanche of lies propagated by licensed attorneys, lies buoyed by their social status as both attorneys and elected officials. The national bar of attorneys needs to do more.
Sadly, our democracy would be in peril no matter who had won the election, because of the persistence, unethical misconduct of attorneys promoting the ‘Big Lie’ and denying the legitimacy of state and federal criminal prosecutions without evidence. Without attorneys as a profession speaking out in a unified, herculean voice against these baseless attacks on the rule of law, the pernicious decay of democracy will speed up until its sudden collapse. Perfectly reasonable laws will be ignored or misapplied and new unreasonable ones put in their place much like we see in autocracies.
State bar associations and other respected legal associations and institutions need to act right now. Well-known and respected attorneys, jurists, and leaders must speak out in a unified public way in the media. Indeed, this is needed now more than ever because the person who has pushed this agenda, Donald Trump, has regained the seat of power and there may be little to no guardrails to stop him from devouring what is left of our rule of law and democratic institutions. The foundation of our constitutional government needs protecting. We attorneys owe it to the American people to, “support [protect, uphold, or defend] the Constitution of the United States,” as we promised.
Jim Saranteas is a practicing attorney of 25 years with experience at the trial and appellate levels in civil litigation. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. Saranteas assists Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.
In the past year, economic justice-focusedstate attorneys general (AGs) have continued a trend of increasing their involvement in enforcing and protecting workers’ rights. State AGs have brought lawsuits combatting wage theft and worker misclassification in a range of industries, and sometimes criminally prosecuted egregious cases. They have pushed back against unfair employment practices that reduce worker power in the labor market, like non-compete and no-poach provisions, as well as a major merger with potential to adversely impact workers. State AGs have championed state-level pro-worker policies in the legislature and defended them in court, and they have weighed in on federal labor and employment policy.
Most notably, there are currently twelve state AG offices with dedicated labor or worker protection units (compared with only three in 2016): Arizona, California, Colorado, D.C., Illinois, Maryland, Massachusetts, Michigan, Minnesota, New York, New Jersey, and Pennsylvania. Several smaller state AG offices, like Delaware and Rhode Island, have lawyers focused on enforcing workers’ rights, even without a dedicated unit. State AGs are increasingly key players in protecting workers’ rights. At the same time, there is still considerable room for greater involvement: ideally, protecting workers will become a core function of virtually all state AG offices, alongside other areas like antitrust law and consumer protection.
Labor Day 2024 is an apt moment to examine the extensive activities of state AGs in relation to workers’ rights in the last year.
Fighting misclassification of workers as independent businesses rather than as employees
Nationwide, employer misclassification of workers as “independent contractors” rather than as employees has stark consequences: it deprives workers of essential protections, creates unfair competition for law-abiding employers, and harms the public coffers because tax and safety net programs do not receive needed funding. A number of state AG offices have played a role in fighting this, through litigation, task forces, policy input, and more.
D.C. AG’s office: The D.C. AG’s office provides an example of an office focused on fighting misclassification. The office obtained a $3 million settlement resolving its lawsuit against Arise Virtual Solutions, a large national corporation that provides customer services representatives to major household-name companies. As a condition of the settlement, Arise agreed to stop doing business in D.C. ProPublica covered the D.C. AG’s lawsuit and settlement, and previouslyreportedextensively about the corporation.
The office also took action in several cases in the construction industry, securing a $600,000 settlement with a construction company that underpaid and misclassified workers, and an agreement by the company not to do business in DC for five years, and a separate $350,000 settlement with additional measures to ensure future compliance in another case. In June, the office sued five companies in a case involving hundreds of construction workers. The lawsuit was filed against multiple players in relation to a development project: the general contractor, a subcontractor, and three labor brokers who helped procure workers. Newscoverage of the case detailed the value of seeking such “up-the-chain liability” in construction misclassification and wage theft cases.
The office also resolved smaller misclassification cases, including one involving a political consultant and another involving Fetch Package Inc., which partners with apartment buildings to outsource package receipt and delivery for residents. Finally, in August 2024, the D.C. AG announced the largest recovery in a workers’ rights enforcement action in District history: a $3.75 million settlement with Power Design, a major construction firm. The settlement includes $1.7 million in restitution to over 1,200 workers, as well as penalties and fees to the District, and robust injunctive measures to prevent future violations.
The Illinois AGreached a $718,000 settlement with a construction company that misclassified over 480 of its workers as independent contractors instead of as employees, and also paid a fixed daily rate no matter how many hours they worked, thereby depriving workers of required overtime pay.
New Jersey AG’s Office collaborates with state labor department to fight misclassification: The New Jersey AG’s office collaborated with the state labor department on major initiatives related to misclassification of workers, including a lawsuitagainst the nationwide trucking company STG Logistics, Inc., and STG Drayage, LLC (according to its website, the largest drayage provider in the United States). The case is the first to use new authority in New Jersey that allows the AG to sue in court on behalf of the Labor Commissioner. The AG and the Labor Department also jointly entered into a $455K settlement agreement with a luxury car transporter based on alleged misclassification of workers as independent contractors, unlawful deductions from pay, and recordkeeping violations.
Minnesota AG Task Force on misclassification leads to legislation: The Minnesota AG’s office createda statewide task force to study and make recommendations regarding combatting employer misclassification fraud. The AG’s task force developed a policy proposal that turned into a bill that was signed into law this year as Article 10 of a multi-issue bill (pp. 175-209). Among other measures, the law facilitates coordinated multi-agency enforcement, increases penalties for repeat violators, creates a stronger test for workers in the construction and improvement services industries, and creates a private right of action for victims of employer misclassification.
Fighting misclassification in the gig economy: After a multi-week bench trial against Uber and Lyft for misclassifying drivers, the Massachusetts AG office reached a settlement on the eve of closing arguments. News coverage explains that the AG’s decision to settle before a likely favorable verdict aimed to avoid a ballot initiative that would have undermined the state’s victory and cemented workers’ status as independent contractors in the future. The AG’s settlementrequires Uber and Lyft to drop the ballot initiative, pay $175 million in settlement funds, and adopt pay rates of $32.50/hour. The resolution also includes significant additional relief for drivers: paid sick leave, occupational insurance, transparency about trips and pay, deactivation procedures, and more. Shortly after the settlement, the AG expressed support for a union-supported ballot initiative that would allow drivers to collectively bargain. The AG also authored an op-ed about the decision to settle the case.
The Pennsylvania AG’s office filed an amicus brief in Razak, et.al. v. Uber Technologies urging a federal court to use the correct interpretation of Pennsylvania’s laws when deciding the question in issue in the case–whether Uber Black drivers are employees or independent contractors.
Fighting wage theft
While some states have statutes defining the term “wage theft,” elsewhere, it is a colloquial term referring to situations in which workers are not paid all of the wages they are legally owed: too often, employees work uncompensated hours, do not receive overtime, their hours are shaved, unlawful deductions are taken, or tips are stolen. Many AG offices have taken measures to fight wage theft. Some examples, in alphabetical order:
The California AG’s office filed a lawsuit against a construction company for wage theft and other labor violations. The office also reached a $826,000settlement with a stoneware company that used an unlicensed, out-of-state labor broker. A joint investigation by the AG’s office, the Employment Development Department (which administers unemployment insurance), and the Labor Commissioner’s Office found that the company failed to report and pay payroll taxes, pay overtime, and provide itemized wage statements to workers as a result of their association with the labor broker. The settlement includes back taxes, back wages for overtime, a civil monetary penalty, and funds for a restitution administrator.
The Illinois AG’s office, along with the U.S. Department of Labor, obtained a $3 million settlement in a case involving a meat processing company that allegedly failed to pay overtime, paying by check for the first 40 hours of work and cash at straight time rates off the books for hours past forty. The AG also settled a case for $335,000 involving truck drivers who haul road construction materials to and from construction sites; the workers were not paid for all time spent driving and also had prevailing wage violations.
The Massachusetts Attorney General is the primary enforcer of wage and hour laws in the commonwealth, and has a record of considerable activity fighting wage theft. A number of these cases also included paid sick leave or other violations. The office reached a $6.8 million settlement, including restitution and penalties, in a wage-theft case involving more than two thousand workers at the MGM Springfield Casino Hotel. The office also used the False Claims Act to recover nearly $1 million from a construction company, based on a subcontractor’s failure to pay the prevailing wage. The office also issued citations against a garment manufacturer ($665,000), a temp agency ($1.3 million), a concierge staffing agency that provides concierges for luxury buildings ($2.4 million), Boston Market ($104,000), and an Amazon warehouse subcontractor. Those cases are ongoing.
The New York AG’s office reachedsettlements with Uber and Lyft, in a case involving tax and fee deductions from driver pay that should have been paid by passengers, not drivers. The settlement includes $328 million in total, most of which will be distributed to drivers; it also requires the companies to provide paid sick leave to drivers, and to pay drivers outside of New York City at a minimum rate of $26.00 per hour. (New York City already regulates pay rates inside the City). Other cases involved $10,000 in wage theft by a dance company, as well as a $230,000 joint settlement, along with the New York City Comptroller’s office, involving a New York City building that failed to pay service workers prevailing wages, despite receiving a tax benefit that required them to do so.
The Wage Theft Unit of the Minnesota AG’s office has been very active since it was established in 2019. The office brought its biggest-yet wage theft case, filing a lawsuit against a dairy farms that allegedly owed workers $3 million and also deducted money from wages for uninhabitable living quarters. Two months after filing suit, the AG’s office obtained a stipulated temporary injunction requiring proper payment of workers and improvement of housing conditions while the lawsuit is pending. The office also settled cases involving unauthorized paycheck deductions by 3M (nearly $1 million), and unlawful time-rounding practices by a medical device manufacturing company that consistently resulted in hours worked being rounded down to workers’ detriment ($250,000).
Child labor
Amid a sharp increase in child labor violations nationally, several state AG offices have taken action to protect young workers. The Massachusetts AG recovered $1 million from Dunkin franchisees, and cited other restaurants for child labor infractions. The Minnesota AG’s office settled a child labor lawsuit case they handled on behalf of the Minnesota Department of Labor and Industry. The case involved teenagers performing hazardous work at a meat processing facility.
Protecting immigrant workers
Some state AG offices have taken action specifically to reach or protect immigrant workers, given their heightened vulnerability to workplace exploitation. The Washington AG’s office prevailed in the state Supreme Court in a case involving immigrant detainees who worked for the private prison operator Geo Group and were paid $1 per day, in violation of the state’s minimum wage law. The Court ruled that these workers were entitled to minimum wage. The D.C. AG permanently shut down a recruitment firm that exploited foreign exchange teachers, securing penalties and restitution. Recognizing that workers without employment authorization are more vulnerable still, the Massachusetts AG’s office announced a $750,000 grant program to fund nonprofit legal services and community partners to help provide legal services and help people apply for work authorization. The Illinois AG proposed legislation to strengthen protections prohibiting employer retaliation against immigrant workers; it was passed by the state legislature and currently awaits the governor’s signature.
In addition, several multistate coalitions of state AGs took action to support immigrant workers, including submitting a comment on a U.S. Labor Department proposal for H-2A temporary agricultural workers, and a letter calling on the Department of Homeland Security (DHS) to expedite and expand access to work permits for newly arrived immigrants. Most recently, a multistate coalition of state AGs, localities, and local prosecutors successfully advocated to DHS for an extension (from two years to four years) of deferred action for workers in labor disputes.
A coalition of state AGs also filed an amicus brief in Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. ___ (2024), urging the Supreme Court to hold that transportation workers in non-transportation industries are covered by the transportation-worker exemption to the Federal Arbitration Act and therefore are able to file lawsuits in court rather than being forced into arbitration. This argument ultimately prevailed.
Supporting state labor departments in their investigations and representing the state
A central aspect of state AGs’ work involves representing the state and state agencies in court, which sometimes involves labor issues.
Some state AGs file lawsuits on behalf of the state in general or state labor departments. Connecticut’s AG, for example, filed a $6 million lawsuit against the operator of state rest stops for allegedly not paying workers a higher wage rate that was required as a condition of a state contract. Wisconsin’s AG sued a garment business for unpaid wages, upon the request of the state Department of Workforce Development. The Minnesota AG and Minnesota’s Department of Labor and Industries jointly sued a major construction contractor alleging widespread wage theft ($2.4M) on 19 projects. North Carolina’s AG filed a lawsuit against a paper mill for breach of a grant agreement with the state: the agreement provided the mill with $12 million in economic development incentives in exchange for a commitment to maintain operations, and at least 800 jobs through a set date, but the mill closed and terminated all employees before then.
State AGs’ representation role can also safeguard state labor agency enforcement. Minnesota’s AG won a consent judgment in a case where a construction contractor obstructed a state labor department investigation; among other measures, settlement terms required the employer to personally tell all workers, with an AG representative present, that they are free to speak with the labor department.
State AGs have defended pro-worker state laws that are challenged by business opponents. For example, several AGs are defending state workplace conscience laws. Often described as laws banning employer captive audience meetings, the laws have much broader scope and prohibit employers from retaliating against workers for not attending employer-sponsored meetings in which the primary purpose is to communicate the employer's opinion concerning religious or political matters. New York’s AG has defended the state’s Farm Laborers Fair Labor Practices Act, which gives farmworkers the right to organize.
California’s AG repeatedly and successfully fought off challenges to AB5, a state law adopting the protective “ABC test” for determining employee status. The 9th Circuit issued an en banc decision upholding AB5 as not violating equal protection law.
Addressing labor market inequities
Various aspects of labor market inequities are detrimental to workers. Corporate concentration and certain mergers can depress wages and harm workers. Sometimes employers expressly collude regarding worker pay, and too many enter into no-poach agreements, agreeing not to hire each other’s employees. Worker mobility and working conditions are harmed by coercive contract terms: non-competes and stay-or-pay contracts (like training repayment agreement provisions, or TRAPs) prevent workers from being able to seek a new job. State AGs have begun to use their labor, consumer, and antitrust authority to address these types of workplace abuses.
New York’s AGrecovered $4.5 million from a title insurance company that used no-poach agreements that limited their employees’ mobility. A multi-state group of AGs submitted an amicus brief in a no-poach case involving tax preparer Jackson Hewitt, and 21 state AGs and the U.S. Department of Justice sought reinstatement of a lawsuit over no-poach agreements between Saks Fifth Avenue and high-end luxury designers. A multi-state group of AGs and the Federal Trade Commission, as well as the Colorado AG separately, sued to block a massive supermarket chain merger between Kroger and Albertsons for a host of reasons, including the impact on workers. The FTC-multistate lawsuit notes that the merger “may substantially increase Kroger’s and Albertsons’s leverage in negotiating with workers, reducing wages, benefits, opportunities, and the quality of workplace conditions and protections.”
The Illinois AG office prevailed in an Illinois Supreme Court case about the applicability of the state’s antitrust laws to labor markets. The case emerged from an AG investigation of three temporary staffing agencies that allegedly used no-poach agreements.
A multistate coalition of seven AGs reached a settlement to end the use of non-competes for hourly employees at the oil change and auto services company Valvoline. And enforcing a new state law, Minnesota’s AG reached a settlement with a commercial printer to release their workers from non-competes, and to notify workers of this.
California’s AG filed a stipulated judgment with a home care company that engaged in unfair competition by including in clients’ contracts no-hire and non-soliticitation provisions that placed unlawful constraints on home care workers’ mobility. The contracts also included a $12,500 liquidated damages charge if a client used, hired, or solicited a former caregiver from the company up to a year after termination of services. The stipulated judgment requires the company to pay $500,000 in civil penalties and imposes injunctive terms to “protect workers, safeguard consumers, and preserve competition in the market.”
Pennsylvania’s AG used its consumer protection authority to reach an agreement with PetSmart, requiring greater transparency and disclosures in relation to TRAPs.
Criminal prosecutions
State AG criminal authority varies: in some states, like Delaware and Rhode Island, AGs are the sole criminal enforcers. In other states, like Connecticut, the AG has no criminal authority. Most states fall somewhere in between: State AGs have authority to bring charges involving certain crimes for example, or in cases where a district attorney is unable to handle the case or requests the AG’s assistance.
Several AGs have brought criminal cases against employers for crimes affecting workers. Most notably, the Massachusetts AG office obtained the state’s first labor trafficking conviction after a jury trial in a case involving a defendant who forced immigrant women to clean businesses. The defendant was sentenced to 5 years in prison. The Michigan and Hawai’i AGs also brought labor trafficking charges involving a domestic worker and a worker on a farm, respectively.
California’s AG secured convictions in cases alleging wage theft, tax evasion and more, including in relation to a group of restaurants in the Bay Area and another group of restaurants in Los Angeles. The Michigan AG’s office charged an insurance agency owner with embezzling from employees.
Education and outreach
State AGs have high visibility, and their offices often use this position to educate the public on important workers’ rights issues. The Pennsylvania AG’s office, for example, hosted a labor trafficking symposium in conjunction with Labor Day 2023, and is planning its second Labor Day symposium, focused on home health care workers, for 2024. DC’s Attorney General did social media outreach about a minimum wage increase and about a new pay transparency law. After Arizona’s AG created a new dedicated worker protection unit, the new unit’s leader authored an article in Arizona Attorney Magazine (a monthly publication of the Arizona State Bar) about plans for the newly created unit.
Not all the state AG news is good for workers
In contrast to the positive developments described above, there are state AGs who have taken anti-worker actions in the past year. For example, Texas’ AG filed a lawsuit challenging a federal labor department rule that would greatly expand the number of workers entitled to overtime pay; fourteen state AGs filed an amicus brief in support of the Texas lawsuit. And many state AGs simply do not pursue workplace justice among their ongoing activities.
Looking ahead
Social justice-oriented state AGs will likely continue to expand their involvement in worker issues in the coming year. The presidential election looms large, of course, and the federal landscape will be vastly different depending on the results in November. In the event of a second Trump administration, state AGs that care about workers will likely devote considerable effort to fighting rollbacks of worker protections, while also filling the enforcement gap, as federal labor agencies will likely pull back from aggressive action in relation to workers’ rights. In a potential Harris administration, state AGs focused on workers’ rights will likely continue to aggressively enforce state worker protection laws, many of which are stronger than federal statutes.
At the same time, ten states are electing their top legal officer this year, and the outcomes of those elections could determine whether certain states continue down this path of increased worker protection and whether more state AGs take up this work. State AGs will continue to use a range of tools—labor law, antitrust, consumer law, criminal law, false claims acts—to fight employer abuses. And as the trend of state AG offices establishing dedicated labor units continues and solidifies, state AGs may perhaps collaborate more extensively in relation to violations by national or regional employers.
In any future scenario, one thing seems clear: a set of justice-focused state AGs will play a meaningful role in standing up for workers in the year ahead.
As the dust continues to settle on the Supreme Court’s 2023-2024 term, the conservative majority’s existential threat to our democracy (and, in particular, our multiracial democracy) could not be clearer. But progressives have also enabled this threat by refusing to embrace the democratic reforms necessary to bring the Court to heel.
Beyond the widely panned decision granting Donald Trump unprecedented immunity from prosecution, the Court’s decisions have followed a clear trend of expanding power for the rich and connected (who will have new tools to challenge environmental and consumer protections), and diminishing it for people of color (who will have fewer tools to challenge racist gerrymanders), and the poor (who can now be incarcerated for sleeping outside even when no shelter is available).
Even in supposed bright spots, such as Rahimi, in which the Court declined to overrule a federal law that bars anyone under a domestic violence restraining order from having a gun, its rulings have reified white supremacy. The Court did not refrain from imposing its “history and tradition” test for gun laws, which Sotomayor acknowledged privileges an era “predating the inclusion of women and people of color as full members of the polity.” The Court also conspicuously declined to address whether its vision of originalism includes the history of Reconstruction, which fundamentally transformed race relations and laid the foundation for multiracial democracy in the United States.
In the face of the Court’s sustained attack on multiracial democracy, progressive responses have so far been ineffective. Progressives arguing before the Court have relied on precedent only to see those precedents tossed away in cases ending the right to abortion and outlawing affirmative action. They have grounded their arguments in history only to see the Court cherry pick research to achieve its desired results in cases diminishing the power of federal agencies. And, outside the courtroom, progressives have shone spotlights on Justices Alito’s and Thomas’ numerous conflicts of interest, only to have calls for the pair’s recusal fall on deaf ears in cases related to the January 6 insurrection.
Yet in the wake of another devastating term, President Biden has announced no plan for Supreme Court reform. Instead, he seems content to patiently await a vacancy that may never arise to make his next appointment.
Let’s be honest with ourselves—efforts to influence or reshape the Court short of structural reform are doomed to fail. Because justices currently have lifetime tenure, and experience has demonstrated that they will time their departures to coincide with ideologically sympathetic presidential administrations, there is no guarantee that another progressive presidency will result in any shift in the Court’s ideology.
Meanwhile, as the Court places its thumb on the scale in elections, whether directly, as in Bush v. Gore, or more indirectly by diluting the Voting Rights Act, and unleashing unlimited corporate spending in elections, democracy may continue to erode.
When they have the political power to do so, progressives must immediately expand the Court to reflect the diverse backgrounds, experiences and viewpoints of the nation, and impose term limits on justices (in line with other Western democracies).
Opposition to these straightforward ways to restore democratic accountability have laid bare progressive ambivalences about democracy itself. Some progressive elites, and particularly legal elites who are wary of reigning in the Court point to (supposedly) counter-majoritarian decisions like Brown, Roe and Obergefell,which expanded rights for people of color, women and LGBT people, as reasons to preserve the Court’s power.
But an overly romantic view of the Court risks breezing past the Supreme Court’s efforts to disempower vulnerable groups throughout its history in cases like Dred Scott, which held that Black people were not and could not be citizens, Plessy, which enshrined “separate but equal” for more than half a century, and Korematsu, which denied the constitutional rights of Japanese Americans interned during World War II, and throughout the anti-regulatory Lochner era. And it risks empowering a handful of unaccountable decisionmakers above the true levers of social change—the people.
While the Supreme Court was a sometime ally to the movements of the 1950s, 60s and 70s, the true heroes of change were civil rights organizers and feminist activists who dared to imagine a brighter future. They pushed the nation (kicking and screaming) closer toward equity as reflected in the enactment of landmark legislation like the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
As the demise of Roe and its aftermath has made clear, victories that rely on the Supreme Court alone are fragile. Lasting protections for the most vulnerable must be won and defended through power building at all levels of society—not in the courts alone. Continued progress is possible, but only if we restrain a Court that is all too happy to defang or dismantle popularly enacted legislation.
We must continue to call out the Court’s insidious efforts to undermine democracy. We must also hold progressive leaders, and especially the progressive bar, accountable for their role in enabling this erosion. And we must demand that the President and Congress take action to expand the Court and impose term limits. If they do not, it's difficult to see how the Court’s future terms won’t be darker mirrors of this one.
The U.S. Supreme Court’s decision on former President Donald Trump’s claim of immunity from criminal prosecution—Trump v. United States—was its last full opinion of the October 2023 Term. For anyone hoping the Court would honor the rule of law in this gravest of disputes, the majority’s performance was frightening and demoralizing. With its eyes firmly averted from “present exigencies,” the Court wrote an opinion that paves the way to a yet more unaccountable presidency.
The dangers that the Trump decision poses are not so much in the shortest term—the timing of the Court’s consideration already assured that former President Trump’s D.C. trial would not occur before the presidential election. Indeed, it is even conceivable that, if Trump loses the November election, this opinion will not shield him from prosecution for all the crimes of which he has been accused. What is frightening about the opinion are its implications for the presidency going forward. If one is looking for the opinion’s analytic antecedent, the place to look is not in U.S. Reports, but in the 19-page letter then-private lawyer Bill Barr wrote to Department of Justice officials in June 2018, arguing that President Trump could not be prosecuted for obstruction of justice. Barr argued that, because of the President’s supposedly illimitable power over criminal prosecution, even self-interested interference with an investigation of his friends and family could not legally be deemed “corruption.”
The Court’s Trump v. United States holding is that, for purposes of determining the scope of a president’s immunity from criminal prosecution, it must first be determined into which of three categories the conduct in question falls. To begin, as former President Trump conceded, and the majority agrees, no immunity exists when the President engages in “unofficial acts,” a category the Court does not define. The Court is clear, however, that an “official act” does not become “unofficial” because of its motive. Thus, a presidential tariff imposed to help a son-in-law’s business would be no less official because of its illicit impetus. Echoing the uncited Barr analysis, the Court holds: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.”
At the other end of the majority’s immunity spectrum stand presidential actions within areas of “exclusive constitutional authority.” In that zone, immunity is absolute: “An act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions.” As for the judicial branch: “Neither may the courts adjudicate a criminal prosecution that examines such presidential actions.”
Remarkably, the Court cites as one such “conclusive and preclusive” Article II authority “the President’s power to remove—and thus supervise—those who wield executive power on his behalf.” The majority thus seems, in dicta, to have obliterated a limitation to its ruling in Seila Law v. Consumer Financial Protection Bureau—namely, that, following Humphrey’s Executor v. United States, Congress may protect the tenure of members of multi-member independent commissions from at-will presidential removal. As it happens, the constitutionality of independent agencies was neither briefed nor at issue in the Trump prosecution. But when writing “for the ages,” as Justice Neil Gorsuch foreshadowed in oral argument, perhaps judicial restraint does not come easily.
Between the realm of unofficial activity and the zone of “exclusive presidential authority” lies a third category: Presidents execute other duties “within the outer perimeter of…official responsibility.” For actions taken “not manifestly or palpably” in excess of this authority,” Presidents enjoy “at least a presumptive immunity from criminal prosecution.”(The italics are in the Court’s opinion.) How strong is that presumption? The Court’s majority hedges on whether the government can ever overcome the presumption. At the very least, the government cannot do so “unless the government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch.” (These italics are mine.) The majority never addresses whether any truly zero-danger scenarios could ever exist.
Because the majority sees the factual record as yet insufficiently developed to apply its framework fully, it offers only “guidance” to the lower courts in former President Trump’s case. That “guidance,” however, includes a conclusive determination that allegations in the indictment about Trump’s communications with the Justice Department “plainly implicate Trump’s ‘conclusive and preclusive’ authority.” Thus, such interactions may not be the basis for criminal prosecution.
The exclusive powers that the Court’s immunity protects include the “investigation and prosecution of crimes”—with the obligatory ceremonial citation to Justice Antonin Scalia’s dissent in Morrison v. Olson—and the power to manage the Attorney General, over whom the President has a plenary power of removal. Moreover, because conversations with the Justice Department may not be prosecuted as acts of conspiracy or obstruction, they also may not be introduced to show former President Trump’s knowledge that his claims of election fraud were false. According to the majority, any “use of evidence” about a President’s official conduct “even when an indictment alleges only unofficial conduct, would…heighten the prospect that the President’s official decision making will be distorted.” On this point, even Justice Amy Coney Barrett, in her partial concurrence, jumps ship.
Justice Barrett also states in her partial concurrence that President Trump’s “alleged attempt to organize alternative slates of electors” clearly amounts to private conduct and is “therefore not entitled to protection.” In light of the majority’s protectiveness of former President Trump with regard to his Justice Department interactions, one would have expected the justices to embrace Barrett’s seemingly incontestable conclusion, at least in the interest of a balanced assessment. Instead, the majority holds out rather fanciful reasons why the lower court, on remand, will need to undertake “a close analysis” to determine if President Trump’s pressuring his Vice President to act unlawfully or his attempted interference with state electoral processes was “official.” Likewise, the lower courts will have to examine all of President Trump’s January 6 tweets and other communications, plus his speech on that same morning, to determine if he was speaking as a candidate and party leader or, rather, in his official capacity. Such a factual assessment must reflect an “objective analysis of ‘content, form, and context,’” except that the examination of context presumably cannot include any mention of President Trump’s earlier efforts to leverage the Justice Department powers to perpetuate a lie about the outcome of the 2020 election.
What is demoralizing about the opinion—aside from its bottom-line threat to the rule of law—is its shallow, tendentious reasoning. The principal dissent by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, takes on every element of the majority’s reasoning, asserting that under its theory of immunity, a President who “orders the Navy’s Seal Team 6 to assassinate a political rival” could not be prosecuted. Not for the first time, Chief Justice John Roberts is pointedly dismissive of a Justice Sotomayor opinion, in this case for “fear mongering on the basis of extreme hypotheticals.” Yet it is difficult to see why Justice Sotomayor’s reading is unjustified. The President’s supervisory authority over the military, after all, is no less “conclusive and preclusive” than is the presidential supervision of the Justice Department. Of course, Congress, at least in principle, could impeach and remove a murderous President. And Article I of the U.S. Constitution states explicitly that any official who is convicted following impeachment “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” The majority does not discuss how to square this language with its theory of immunity. Indeed, it purports to reject Trump’s argument that impeachment and removal are prerequisite to criminal liability.
Nonetheless, because the Court orders a remand, it remains possible—if former President Trump loses the 2024 election—that the new immunity framework, applied to his past acts, will not ultimately shield him from criminal liability in connection with January 6. There are clearly at least four votes already, including Justice Barrett’s, for characterizing much of Trump’s conduct cited in the indictment as private. If he is not in office and thus not empowered to stop the prosecution, the majority’s analysis, if applied sensibly, will prove an imperfect shield. What is frightening, however, is that the Court has effectively carved out what Justice Sotomayor appropriately finds to be a capacious “law-free zone” for future presidents. The majority’s analysis, in the hands of as rule-oblivious a figure as former President Trump, lays out a legal template for how to justify breaking the law with impunity. It is notable that, armed with this opinion, President Richard Nixon would certainly have had plausible arguments in 1974 that many, if not all of the acts mentioned in the articles of impeachment adopted against him by the House of Representatives Committee on the Judiciary could not constitutionally have formed the basis for any criminal prosecution. He might still have resigned, but the pardon granted to him by President Gerald Ford would have been unnecessary.
It is the imbalance in the Trump Court’s opinion, as well as its obliviousness to history, which makes the decision so discouraging, as well as dangerous. The Court makes no mention of the Nixon pardon. Nor does it cite earlier executive branch legalopinions positing the susceptibility of a former President to criminal prosecution for acts undertaken while in office. It ignores the position taken by Senators at Trump’s second impeachment trial who explicitly accepted his lawyers’ argument that accountability for his malfeasance in the events leading up to January 6 lay with the criminal justice system. An amicus brief that Justice Sotomayor cites favorably (which, in full disclosure, I joined), points out that although some early state constitutions spell out immunities for governors, the Framers adopted no such text.
Instead, the majority’s analysis is driven entirely by a historically dubious interpretation of the constitutional presidency. Under this view, the President is constitutionally the “only person who alone composes a branch of government”—a depiction that, at the very least, makes the Constitution’s reference to the “executive departments” puzzling. Within the President’s zone of constitutional authority, there can be no “intrusion” by the other branches. Neither Congress’s power to enact laws about every “department,” or “branch” of government, nor the premise underlying an independent judiciary—namely, that law will apply equally to all—is ever accounted for. Instead, the President must have maximum leeway to undertake “bold and unhesitating,” “energetic and vigorous” action without concern for obedience to law. In response to Justice Sotomayor’s inferences from the Constitution’s silence on executive immunity, the majority responds: “True, there is no ‘presidential immunity clause’ in the Constitution. But there is no ‘separation of powers clause’ either.” What this riposte ignores is there is also in the Constitution no “checks and balances clause” and no “rule of law” clause. Yet it is beyond doubt that the Constitution envisions both, and each is more firmly rooted in the Constitution’s text, history, and tradition than is a formal, wooden conception of the separation of powers.
In separation-of-powers clashes prior to the Roberts Court, the majority’s predecessors preferred to rely on balancing rather than placing the President inside an impervious bubble. When a unanimous Court rejected President Nixon’s claim of absolute immunity in connection with the Watergate tapes, it recognized that there were competing interests to be weighed:
When the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises…In designing the structure of our government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.
In upholding the Presidential Recordings and Materials Preservation Act—Congress’s initial scheme for regulating the curation of the Watergate tapes—the Court held that, whenever courts confront a statute touching on the executive branch of government, it must determine whether the act in question “disrupts the proper balance between the coordinate branches”:
The proper inquiry focuses on the extent to which it prevents the executive branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.
In former President Trump’s case, such balancing would seem relevant—and, indeed, conclusive—in finding that a President might be criminally indicted for conspiring to subvert Congress’s proper performance of its constitutional role in determining who is the President-elect. The Court never even discusses the proposition.
In short, Trump v. United States places no weight on the constitutional authorities of Congress or the judiciary—much less on the public interest in promoting the rule of law through criminal prosecution. Instead, the majority explicitly states that it is less worried about presidential criminality than “the more likely prospect of an executive branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.” If such fecklessness is “more likely,” it is chiefly because of a 2024 presidential candidate who, in a prior campaign, called for the imprisonment of his opponent, who, while President, called for the prosecution of members of Congress investigating him, and who, in this campaign season, has raised the prospect of targeting his adversaries if reelected—even by subjecting them to military tribunals. After Trump v. United States, a reelected President Trump could more easily pursue any of these actions with impunity.
Peter M. Shane is Distinguished Scholar in Residence and Adjunct Professor of Law at the New York University School of Law, and Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at The Ohio State University Moritz College of Law. He also serves on the ACS Board of Directors and ACS Board of Academic Advisors.
USSW health and safety rally on April 4, 2023. Photo Credit: Dorothy Singletary, SEIU
The labor movement has been experiencing a recent renaissance in the American zeitgeist. Overall, a majority of Americans (55%) say labor unions positively affect the country. Millennials and Gen Z, the next generation of workers, are more pro-union than older generations, with Gen Z being the most pro-union generation alive today. Furthermore, in the past 24 months, we have seen huge labor wins including the Teamsters winning historic protections and wage increases for its UPS members, United Auto Workers winning 25% raises for employees’ new contracts with the Big 3 automakers, and nearly a million Americans receiving double-digit raises as a result of unionizing.
Despite these wins and favorable opinions and outcomes, nationwide union membership is still stagnant. In 2023, 11.2% of U.S. workers were union members, with only 6.9% of private sector workers being unionized. The disparity between support for unions and actual union membership numbers is largely a result of our outdated, weak, and historically racist labor laws. Before reviewing the current state of labor, it is necessary to review the historical context in which these laws were created and whom they were intended to benefit or not benefit.
Is Broken Labor Law Working as Intended?
Economic struggle has always been the cornerstone of the American landscape. At its inception, the country’s economic and social systems were created and built around the use of slave labor. Even when Black slaves were set free, they were met with racist state laws and physical violence to ensure that they continued to effectively work for free for their former masters.
Furthermore, when white supremacist legislatures were confronted with newly freed workers and a new voting electorate, they passed laws to prevent local labor regulation. Throughout the South, new Black citizens made up a majority or at least a sizable portion of the new electorate. With the fear of Black voters mobilizing and exercising power at the local level, state legislatures worked to consolidate power at the state level where white supremacy was stronger. This was done through preemption — a legal doctrine that gives higher governments, such as federal or state governments, the power to limit or block lower governments from legislating on specific issues.
Fast forward to the New Deal Era, when Congress passed supposedly “race-neutral" policies to help Americans recover after the Great Depression. However, racist Southern congressmen worked to exclude Black workers from the New Deal to preserve “the quasi-plantation style of agriculture” that pervaded the South. As a result, agricultural and domestic workers, primarily Black dominated industries, were excluded either explicitly or in practice from the Social Security Act of 1935, the Fair Labor Standards Act of 1938 (“FLSA”), and the National Industrial Recovery Act of 1933, which was the predecessor for the National Labor Relations Act of 1935 (“NLRA”). This meant that most Southern Black workers were excluded from old age benefits, unemployment insurance, minimum wage protections, maximum working hour restrictions, and other labor protections.
The present-day NLRA continues to exclude agricultural and domestic workers. In a similar vein, the NLRA and FLSA effectively exclude other workers from basic labor protections by limiting which workers and businesses are covered by these laws. Businesses have taken advantage of these loopholes by creating fissured workplaces through outsourcing, contracting or subcontracting, franchising, or outright misclassifying workers as independent contractors or supervisors. As a result, workers have limited power to make demands on businesses because they are unclear about who actually controls their working conditions.
In 2022, the Service Employees International Union (“SEIU”) launched the Union of Southern Service Workers (“USSW”). USSW recognizes the challenges in organizing Southern low-wage service workers, including the continuation of racist laws, as well as the persistent use of the low-wage service sector model with its unstable scheduling and high turnover rates. To address these issues, USSW does not seek to unionize workers worksite by worksite under the NLRA’s framework. Rather, USSW is focused on cross-sector organizing at various stores in different industries including retail, warehouse, fast food, and home care.
With the support of USSW, workers are organizing across the South to address workplace issues regardless of their formal or legal union status. For example, Burger King workers in Atlanta, Georgia, held a rally to demand safe working conditions, saying that a broken air conditioner in their store resulted in high heat that posed health risks.Working in extreme heat conditions is a fairly common occurrence in many jobs across the country. Several other workers employed at different fast food restaurants and in different industries who were experiencing similar issues also spoke out at the protest. As a result of the protest, Burger King’s corporate office contacted the franchise that owned the store and told them to fix the air conditioning. This story shows the true power of USSW. One or two workers speaking out about workplace issues would have likely not resulted in any change, especially where the workers are directly employed by a franchisee but many of their working conditions are determined by the corporation. However, when multiple workers across industries band together, they can elevate their workplace demands.
Likewise, labor unions and workers have had to adapt to organizing workplaces with the rise of contracting and subcontracting. For example, SEIU’s Airport Workers United (“AWU”) helps to organize low-wage airport service workers–including baggage handlers, cabin cleaners, fuelers, and airport wheelchair agents–many of whom are people of color and immigrants. Prior to the passage of the Airline Deregulation Act of 1978 (“ADA”), this group of workers was typically employed directly by the airlines. However, over the past two decades, airlines have almost entirely contracted out these jobs to airline service providers. Under a subcontracting model, the lowest bidder usually wins these contracts by reducing labor costs through lower wages and benefits for employees.
However, this approach is not without its challenges. While some airport service workers have won higher wages and benefits under this approach, state or federal minimum wage requirements still govern many major airports. In several states, the federal minimum wage still controls and requires payment of only $7.25 per hour. Many local governments that want to pass minimum wage and other labor standards for airport workers are likely to be met with federal or state preemption challenges. To avoid a patchwork of various wage and benefits standards at U.S. airports, AWU has been advocating for national legislation such as the “Good Jobs for Good Airports Act,” which aims to ensure airport service workers in the United States receive a living wage and important benefits like health care.
How Can We Help Workers?
While workers and unions are learning to adapt to organizing modern workplaces, the takeaway lesson is that it should not be this difficult for workers to organize and win better wages and working conditions. It is imperative that we improve protections for workers. Congress must pass stronger labor laws including raising the federal minimum wage and eliminating loopholes in current labor laws. Likewise, Congress must also increase funding for agencies that are charged with helping workers, including the National Labor Relations Board and the U.S. Department of Labor. Similarly, state and local governments must enact higher labor standards and increase funding for their state labor agencies.
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Dorothy Singletary is Assistant General Counsel at the Service Employees International Union.
Dorothy Singletary is Assistant General Counsel at the Service Employees International Union.