HLS Professor Sharon Block and Labor Law

Vail Kohnert-Yount, 1L

On Monday, February 26, at the same time as oral arguments for Janus v. AFSCME, in which the Supreme Court is poised to strike a major blow to public sector unions, Sharon Block spoke to the American Constitution Society at Harvard Law about the past and future of the U.S. labor movement.

Professor Block, the director of Harvard Law School’s Labor and Worklife Program, explained how the emerging “alt-labor” movement can help protect and expand the American middle class. Especially at a time when traditional institutions of the labor movement are under unprecedented attack, creative approaches to worker organizing are needed to defend low- and middle-income workers.

What does the economy feel like?

Before coming to Harvard, Professor Block served as the Principal Deputy Assistant Secretary for Policy at the U.S. Department of Labor and Senior Counselor to the Secretary of Labor. A lawyer by training, she explained the importance of understanding the social and economic landscape when trying to change the law.

Professor Block began by asking, “What does the economy feel like for low- and middle-income workers?” Drawing upon economic research on the real income of U.S. workers and families across percentiles, she showed that middle-class Americans have barely gotten a raise over the past half-century.

The real median income of U.S. workers has been mostly flat since 1967, even as worker productivity has increased dramatically since 1973. Meanwhile, the wealth of the 90th and 95th percentiles has skyrocketed, and the disparity will only increase with the recent tax bill.

The result is that the so-called “American dream” isn’t so American anymore. “The American middle class, long the most affluent in the world, has lost that distinction,” the New York Times reported in 2014. After-tax middle-class incomes in Canada, which were substantially behind in 2000, are now higher than in the United States. The poor in much of Europe earn more than poor Americans.

Professor Block cited several other studies to illustrate the problem. For example, 57% of Americans don’t have enough savings to cover a $500 unplanned expense. Furthermore, economist Raj Chetty has shown that rates of relative intergenerational mobility in the United States have been flat for decades. Finally, economists Anne Case and Angus Deaton found that while mortality rates continue to fall in most of the rich world, midlife mortality has actually increased for a large portion of the U.S. working class due in part to the rise of “deaths of despair” by drugs, alcohol, and suicide.

What does this have to do with labor law?

Increasing income inequality and the declining strength of the middle class correlate strongly with the decline in union density in past decades. Since 1984, the percentage of the U.S. workforce that is unionized has plummeted from around 20% to just over 10%, the majority of whom are public sector workers for the first time in American history.

Legal attacks on unions, like the Janus case, are in part to blame. Professor Block identified several other key drivers of decline including workplace fissuring, the rise of the gig economy, globalization, deindustrialization, and automation, as well as weak penalties for breaking labor laws that disincentivize employers to do the right thing by their workers.

In fact, an entire legal industry has sprung up to help employers violate labor law and avoid worker protections, if not in letter then at least in spirit. About 80% of Harvard Law graduates will go on to work at corporate interest law firms, many of which have lucrative practices in what they euphemistically call “union avoidance.” This institution, both directly and indirectly, bears significant responsibility for the legal phenomena that have led to the weakening of the middle class.

What comes next for the labor movement?

The so-called “alt-labor” movement, which is the subject of Professor Block’s seminar at the law school, has arisen in response to this challenging moment. The Fight for $15 is perhaps the best-known example, but a variety of models, from worker centers to legislative coalitions to worker-owned cooperatives, offer new ways of creating and protecting good middle-class jobs.

Ultimately, Professor Block said, our labor law in the United States needs reform. The law has lagged so far behind our current reality that this reform must happen at the most fundamental level. The law must redefine key terms like “employee” and “contractor,” empower enforcement mechanisms, expand the scope of bargaining, and allow for healthy competition in labor markets.

Finally, the labor policy agenda should include building a new social contract for this modern era that includes all workers, from those who have been historically excluded to those in the emerging economy. Under Professor Block’s leadership, this is the Labor and Worklife Program’s goal in the years to come.

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