Taking on Big Business Wage Theft

Apr 2, 2014Harmony Goldberg

Lawsuits show that the fight against wage theft is heating up, but workers shouldn't have to sue their employers to get paid what they're owed.

Lawsuits show that the fight against wage theft is heating up, but workers shouldn't have to sue their employers to get paid what they're owed.

Despite the extensive press coverage of the fight of fast-food workers for a $15 hourly wage, one recent development hasn’t gotten much attention: fast food workers around the country have started to win significant wage theft lawsuits against McDonald’s franchisees, to the tune of hundreds of thousands of dollars. These lawsuits raise an important question: How has McDonald’s been able to get away with stealing hundreds of thousands of dollars from low-wage workers? The answer is straightforward. Our system for enforcement has been so severely weakened that many employers are able to regularly violate workers’ basic rights. And the law itself is broken. Its structure allows corporations like McDonald’s to escape responsibility for the conditions in their workplaces.

In February, student guest workers won a lawsuit that charged a McDonald’s franchise in Pennsylvania with wage theft. They had been paid sub-minimum wages, denied overtime pay and charged exorbitant prices for company housing. The Department of Labor required the franchise to pay $205,977 to both guest workers and native-born workers at the franchise. This victory was rapidly followed by a wave of other lawsuits around the country.  

Last week, McDonald’s workers in three cities launched highly publicized cases charging the corporation with wage theft. These workers had experienced many types of wage theft. The workers in California claim that they were not paid for overtime work. In Michigan, workers are asserting that they were required to show up for work but were not allowed to clock in. Workers in New York allege that were not compensated for the time they spent cleaning their uniforms, required to do work off the clock and not paid overtime. The New York suit was almost immediately successful. Last week, seven franchises agreed to settle for almost $500,000.

McDonald’s workers are not alone. Wage theft has become a widespread problem in low-wage industries in the United States. An influential study found that more than two-thirds (68 percent) of workers had experienced some form of wage theft in their previous week of work: they were paid below the minimum wage, not paid for overtime, required to work off the clock or had their breaks limited. An organization of fast food workers in New York City surveyed workers and found that 84% of workers had experienced wage theft in the last year.

Addressing wage theft will take a two-pronged solution: rebuilding the enforcement system in the U.S., and cutting through the smokescreen of subcontracting and franchising to hold employers responsible for the wages and working conditions in their workplaces. 

The enforcement regime in the United States has been significantly weakened over the last several decades. There has been an overall downward trend in funding for the Department of Labor. The number of labor inspectors had plummeted for years. The Obama administration has added new inspectors, but not enough to make up for the long-term decline. Meanwhile, the number of workers who need protection has grown. This pattern has to be turned on its head. If rampant wage theft is to be stopped, we need to radically increase the number of labor inspectors on the ground.

But – as Annette Bernhard points out in a new paper – increased funding is not enough. The enforcement system that we have is not well structured to deal with our current economy. It must be transformed. The penalties for employers who violate workplace regulations must increase. Enforcement agencies should partner with organizations like unions and worker centers that are in daily contact with workers. These organizations can educate workers and employers about workplace regulations, and they can provide an ear to the ground to help identify violators.

Even a radical transformation of the enforcement regime will not be enough in today’s economy. We need to change the law to deal with changes in the structure of employment. Right now, McDonald’s is structured so that the franchise owners are technically considered to be the employers. They are held legally responsible for wage violations in their stores, leaving McDonalds itself off the hook. Both recent legal victories charged franchise owners rather than the McDonald’s corporation itself. McDonald’s is shielded from blame while it continues to reap the majority of the profits that come from mistreating workers.

We need a new definition of what it means to be an employer. The current definition makes it impossible for workers to hold their corporate employers – the ones who are setting the real terms of their work – responsible. The two remaining McDonald’s wage theft cases target both the franchise owners and the McDonald’s corporation itself. That challenges the narrow definition of employer, which limits responsibility to the franchise owner. The time has come for the law to be changed. All employers - from the front-line employers up to top of the employment chain – should be legally recognized as such so they can be held accountable for the conditions in their workplaces.

Wage theft that has become an endemic problem in today’s economy. Low-wage workers should not have to turn – again and again – to private lawsuits as a solution. They deserve the basic right to be paid for their labor. To get there, we need full funding and comprehensive reform of the enforcement system in the United States, and we need legal reforms that hold central employers responsible for the conditions in their workplaces. 

Harmony Goldberg is the Program Manager for the Roosevelt Institute's Future of Work Initiative.

Photo copyright Annette Bernhardt, via Creative Commons license.

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The Challenges to Organizing Workers in Today's Economy

Apr 2, 2014Richard Kirsch

This is the fourth in a series of posts summarizing a new Roosevelt Institute paper report by Senior Fellow Richard Kirsch, entitled "The Future of Work in America: Policies to Empower American Workers and Ensure Prosperity for All." The report provides a short history of how the rise and decline of unions and then explores reforms in labor policy to empower American workers to organize unions and rebuild the middle class.

This is the fourth in a series of posts summarizing a new Roosevelt Institute paper report by Senior Fellow Richard Kirsch, entitled "The Future of Work in America: Policies to Empower American Workers and Ensure Prosperity for All." The report provides a short history of how the rise and decline of unions and then explores reforms in labor policy to empower American workers to organize unions and rebuild the middle class. Today’s post identified the major challenges posed by the changes in how employment is structured, which new policies must address.

When you consider what it would take, under American labor law, to organize the nation’s biggest employers, you understand the huge challenge unions face to organize workers and win a fair share of the nation's economic progress.

Today, the largest employers in the country (Walmart, McDonalds and Yum Brands – owner of major fast-food chains like KFC and Pizza Hut) – employ a small number of workers, primarily low-wage, at each of their thousands of locations. Walmart - which employs approximately 300 workers at each location - is the largest of these. Unions would need to collect the signatures of half of the workers at each of thousands of locations, so organizing a major share of the company’s employees is daunting.

After a union did get the support of a majority of workers at any location, the company could warn its employees against voting for the union while they were on the clock, but the union would need to find and talk to each employee outside of work. The only penalty the company would face for firing union activists or supporters would be to pay back-pay, a nominal amount when wages are so low, and only after a protracted regulatory and judicial process.

Of course, since many of the workers are part-time, job turnover is very high. As a result, the longer the store succeeds in delaying an election, the more workers will turn over, requiring the union to continually organize new crops of workers to win a simple majority. If the workers won the election and the store refused to negotiate in good faith, it could prolong the talks until only a few of the original workers remained. If workers did strike, the store could hire replacement workers and wait longer. Or they could decide to close the store – as Walmart did in Canada – because the loss to the company of one outlet among thousands has virtually no impact on its bottom line. And if by some miracle a union organizing effort was successful, the union would represent only the one store that employed only a fraction of the corporation’s workforce, making it difficult to influence broader industry standards.

When we look at the job categories that are adding the most workers today we see the same story. The organizing challenges of two groups of workers - retail sales and fast food - are captured in the discussion above. We also find other obstacles. Only one of the six job categories with the most job growth – registered nurses – has historically been represented by unions. A substantial share of workers in two other growing categories – home health aides and personal care aides – are not covered by the NLRA, whether because they work for the person they are assisting or because they are categorized as independent contractors.

We can group the major challenges facing labor organizing and policy into five categories:

Current labor law is tilted against unions. There are virtually no strong incentives for employers to recognize unions or to reach bargaining agreements. Government is ineffective in enforcing the laws on the books and powerful tools that unions might use to gain more power in the economy are prohibited.

Only a relatively small number of workers are employed at one site. As we described above, organizing workers at many of the nation’s large corporations now requires successful campaigns at thousands of worksites.

Industries are typified by diverse, global supply chains, in which a major corporation that sells goods to the public does not directly employ many of the workers who produce its products. As a result, the employer that is driving the price for the good or service being delivered is shielded from legal responsibility for the conditions of work, the compensation paid to many of the people who make the good or deliver the service, and responsibility for responding to unionization efforts.

Labor law does not cover many workers. Approximately one-in-four workers are not covered by the NLRA or other labor laws. These include domestic workers, farmworkers, supervisors and independent contractors.

Corporations have become much more powerful than unions and often more powerful than governments, making decisions that determine people’s well being and shape the national and global economy. Corporations use their power to cut wages and benefits, including by subverting labor laws.

A major goal of the Future of Work Initiative is to envision policies to address these challenges, in order to create a society of broadly shared prosperity. We seek policies to both reform and transform American labor law and policy. In the final two posts in this series, we will describe a wide variety of policy ideas to address the five major challenges listed above.

Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

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Daily Digest - April 1: How to Ensure Equal Opportunity Internet Access

Apr 1, 2014Rachel Goldfarb

Click here to receive the Daily Digest via email.

Why the Government Should Provide Internet Access (Vox)

Ezra Klein interviews Roosevelt Institute Fellow Susan Crawford, who says that internet should be regulated as a utility, just like electricity and telephone service.

Click here to receive the Daily Digest via email.

Why the Government Should Provide Internet Access (Vox)

Ezra Klein interviews Roosevelt Institute Fellow Susan Crawford, who says that internet should be regulated as a utility, just like electricity and telephone service.

CHARTS: The Amazing Wealth Surge For The Top 0.1 Percent (TPM)

A new study from two UC Berkley economists shows how the most affluent Americans have surged in their share of the country's wealth in recent years, reports Sahil Kapur. This study stands out because others have primarily looked at income.

New York Doormen Assert Their Right to Live in the City Where They Work (The Atlantic Cities)

With a union contract expiring for the city's doormen, negotiators are tying in to Mayor DeBlasio's fight against income inequality. Meanwhile, as Sarah Goodyear reports, a new ad campaign highlights the heroics of doormen, such as delivering babies. 

$2.13 an Hour? Why The Tipped Minimum Wage Has to Go (The Nation)

Subminimum wage workers, primarily in the restaurant industry, are more likely to live in poverty or rely on food stamps, writes Michelle Chen. That's less true, however, in states with no tipped minimum wage.

The Faces of Food Stamps (Time)

A photo series by Jeff Reidel looks at the lives of SNAP recipients, from their jobs to their efforts to stretch their food dollars. Maya Rhodan speaks with Reidel and some of his subjects.

New on Next New Deal

The ACA in Threes: The Good, The Bad and the Ways to Make it Better

Roosevelt Institute Senior Fellow Richard Kirsch considers some of the successes, outrages, and must-repair glitches occurring over the course of the Affordable Care Act's first open enrollment period.

Higher Education Financing Needs a Better Deal Than This

Raul Gardea, the Roosevelt Institute | Campus Network Senior Fellow for Education, argues that the White House's latest plan for easing student debt doesn't go far enough in its reforms. Indeed, it makes some things worse.

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In Seattle, Calls for a Higher Minimum Wage are Calls for Democracy

Mar 28, 2014Felicia Wong

Roosevelt Institute President and CEO Felicia Wong spoke yesterday at the Income Inequality Symposium in Seattle, where she gave the closing remarks, calling on our memories of President Franklin D. Roosevelt and the New Deal to urge Seattle into action on raising the minimum wage. Her prepared remarks are below.

Roosevelt Institute President and CEO Felicia Wong spoke yesterday at the Income Inequality Symposium in Seattle, where she gave the closing remarks, calling on our memories of President Franklin D. Roosevelt and the New Deal to urge Seattle into action on raising the minimum wage. Her prepared remarks are below.

Thank you so much, Mayor Murray, David Rolf from SEIU 775NW, Howard Wright, and all of you who have served on the Mayor’s Task Force or spent so much of your time fighting for economic growth and economic justice.

Today – we feel like a nation at the crossroads, on the brink.  But let’s remember: we’ve been here before. The story is familiar. Poverty and income inequality are on the rise throughout the United States. Even if you’re fortunate enough to have a job, you’re struggling to make ends meet. Meanwhile, a select few do very, very well for themselves. The President, facing a critical midterm election, addresses the nation. Raise standards for workers, he says, and he calls for laws to raise the national minimum wage, too.

I’m talking about 1938, when the President was Franklin Delano Roosevelt. When FDR took office, there was no federal law guaranteeing a minimum wage for American workers – and in fact throughout the 1930s the President battled a recalcitrant and conservative Supreme Court, and conservative business establishment, on behalf of workers. In his 1938 address to Congress, FDR said such a law was long overdue. He said it was morally unacceptable and economically unsustainable for so many people in the United States to earn poverty wages. To quote Roosevelt: “Aside from the undoubted fact that the people thereby suffer great human hardship, they are unable to buy adequate food and shelter, to maintain health, or to buy their share of manufactured goods.”

That’s the key. FDR understood that the minimum wage was an issue for our hearts and for our wallets. Again and again, he returned to the point that businesses could not thrive unless workers did. Without workers, an economy cannot grow.

It was a tough fight, and FDR didn’t go it alone. He had what he called his Brains Trust -- lawmakers, academics, activists, and business leaders. Their job was to figure out economic policies under which everyone could prosper. FDR went to Congress with their proposals. The result: the Fair Labor Standards Act, a keystone of the New Deal, along with the Social Security Act. With the FLSA we got a federal minimum wage as well as the 40-hour workweek and standards for overtime pay. These underlie modern labor policy.  These are issues that are hotly debated even today.

As we’ve seen over the course of this day’s symposium, fixing our country’s inequality and wage problems will – once again – need the good ideas and expertise of a brain trust. We have been fortunate to hear from important partners such as Maud Daudon from the Chamber of Commerce, Saru Jayaraman from Restaurant Opportunities Center - United, and leaders from other cities such as Supervisor John Avalos from my hometown of San Francisco and Wilson Goode from Philadelphia.  Innovation is a team sport. FDR understood this, and so does Mayor Murray.

I work at the Roosevelt Institute in New York City.  And I am here today because Seattle is at the center of the nation’s most important fight.  

At Roosevelt, we think of ourselves as an ideas and leadership shop. I won’t claim that we ask ourselves “What Would FDR Do?” in every situation. But we certainly try to capture his spirit of innovation and collaboration in our work. We support public intellectuals like Dorian Warren, whom you’ve heard from today, and Mike Konczal, Joe Stiglitz, Annette Bernhardt, Richard Kirsch, and others. They plunge into all facets of the inequality problem – which President Obama has rightly called the defining problem of our time.  They envision solutions, including a new labor agenda for the 21st century.  This includes raising the minimum wage and providing paid sick leave, and also includes new standards for the right to organize, the enforcement of labor laws, and strategies to combat labor market segregation by race and gender.  At Roosevelt we also support some 10,000 undergraduates across the U.S. who dig in deep in their local communities – designing and fighting for policy solutions at the city level.

We at the Roosevelt Institute believe – as does everyone here – that we all do better when we all do better. But: wages have been backsliding for decades now. The typical American family makes less today than it did 25 years ago. I know we have heard a lot of statistics today, and they can seem overwhelming, but consider this for just a moment: 16 million children live in homes where their families are not sure where the next meal is coming from. Five years after the Great Recession officially ended, there are still three times as many Americans looking for work as there are job openings. And, as we’ve discussed today, new jobs aren’t good jobs.  The most recent BLS statistics forecast a low-wage trajectory through at least 2020.  Only one of the 20 occupations expected to add new jobs requires a college degree, and most of the kinds of jobs we will be creating offer low or moderate pay.

From FDR to President Obama to each and every one of us here today, whether right or left or center: we can all agree that no one should work a full-time job and worry about putting food on the table for their family.  

But this is not just about morality, not just about the “we should” and the “we shouldn’t.”  This is about economic fundamentals. When people can’t even buy groceries at the end of the month, they can’t do all of the things – go to a baseball game, go to dinner at a restaurant – that drive economic growth and make our towns and cities strong.

Now, consider the other half of the coin: times are not tough for everyone. In 2012 alone, the richest 1 percent of Americans took home more than 20 percent of all income – one of their biggest hauls since the Gilded Age. Corporate profits are at record levels, and corporations are sitting on huge cash reserves. Many will tell us that corporations and wealthy owners are the job creators, the engines of the economy.  Now, none of us begrudge real success. But the question is, if they’re doing so well, why isn’t the rest of the economy doing better?

And the answer is clear: As FDR once argued, the people – middle class, working families – are the real job creators. These aren’t just strangers, or statistics. I’m talking about our friends and family and co-workers. I’m talking about us. As more and more Americans struggle to keep up - businesses can’t function.  Companies need customers, people to spend money on those products and services. That’s why holding down wages is more than just unfair. It’s also bad economics.

Let me take a minute to tackle the arguments on the other side: that raising the minimum wage will cause unemployment, business flight, or higher prices.  But empirical research looking at decades of data – much of which we have heard today – shows that on balance raising wages has little or no negative employment effects, and in fact there is significant evidence to show that businesses – and cities and towns – flourish with higher wages, rather than lower.

This also should make sense to any of us who manage other people. Making decisions to pay employees enough so they aren’t stressed in the rest of their lives makes good business sense, and good common sense.

And, we are learning from very recent research.  I will cite just two important pieces.  The first is a massive study of 200 years of capital accumulation, incomes, and growth just published here in the United States.  The research suggests the problem is very big, and in fact lies in the structure of today’s entire global economy. Too much capital is concentrated in the hands of too few, and the global economy has gone awry.

The second piece is a recent IMF study of inequality and growth in hundreds of countries showing that many equality-enhancing redistributive policies – higher taxes, more public investment – can increase growth. Win-wins are possible.  

So these findings should give us courage. And should push us to act – because recalibrating the minimum wage is one very big step towards fixing the broken economic system and promoting growth in ways that will work for everyone.

Let me be clear: raising the minimum wage isn’t anti-democratic, isn’t anti-capitalist, isn’t anti-free market.  FDR saved capitalism from itself.  That is what you are trying to do here today.

It’s no surprise that we’re having this conversation in Seattle. Your city is a great hub of American business and social innovation. This city has brought to life trends and technologies, from Starbucks coffee to Excel spreadsheets, which revolutionize the way we live. And you in Seattle know that people are at the center of that innovation. Companies like Costco have built their business models on paying decent wages and benefits, retaining valued employees, and fostering strong communities.

It’s not a top-down, trickle-down proposition. Economies grow, as our friend Nick Hanauer said this morning, from the middle out.  You have seen it work in Seattle, and that’s why Seattle is the right incubator for the sound labor policies that will shape the American economy of the future.

By voting for a 15 dollar an hour wage floor, Seattle can move the entire region’s economy forward.  You can also set the trend for the whole country – in addition to possible federal legislation, at least eight states are considering minimum wage increases this year. You can show all of us how to build the kind of economy that grows, that is stable, and that spreads prosperity broadly.  It is a virtuous cycle.  

If adopted nationwide, the Economic Policy Institute estimates that the raise in the minimum wage proposed by President Obama could affect more than 28 million people and lift many of them out of poverty. 28 million people. At a time when the American Dream of opportunity for all is rapidly fading, those are 28 million reasons to support this proposal.

Beyond the potential economic impact, this policy would show what government can achieve when it responds to the needs of working families. As Justice Louis Brandeis once said, “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.” Individual companies, as great as they are, can’t do this alone.  Our fates are linked, and we have to act together.  By raising the minimum wage to fifteen-dollars-an-hour, Seattle can choose democracy and start to reverse the trends that have been crushing the middle class.

Let me close by urging the members of Seattle’s City Council to approve the 15 dollar an hour minimum wage. And as FDR told his own supporters, it is up to all of us to make them do it. A lot has changed about our country since the days of the New Deal, but one thing remains the same: Progress is possible when we commit to it and fight for it. Now is the time for us to decide what kind of economy, what kind of government, and what kind of future we want for ourselves. Now is the time for Seattle to lead the way. Thank you.

Felicia Wong is President and CEO of the Roosevelt Institute.


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Daily Digest - March 28: How to Be a Better Anchor

Mar 28, 2014Rachel Goldfarb

Click here to receive the Daily Digest via email.

Click here to receive the Daily Digest via email.

New Student Initiative Asks Anchor Institutions to Rethink Their Communities (Community-Wealth.org)

The Democracy Collaborative interviews Alan Smith, Roosevelt Institute's Associate Director of Networked Initiatives, to discuss the Campus Network’s Rethinking Communities initiative, which uses the Collaborative’s Anchor Dashboard to examine how institutions like colleges affect local economies.

  • Roosevelt Take: Alan explains the ideas behind the Rethinking Communities initiative, and why this project makes sense for Millennials.

The PAC to End All PACs (Politico Magazine)

David Freedlander speaks with Roosevelt Institute Senior Fellow Jonathan Soros about his work on campaign finance reform. Soros says his aim is to help ensure lack of money doesn't shut candidates out.

Domino's Franchisees Settle Wage Theft Investigation In New York For $448,000 (HuffPo)

Dave Jamieson reports on the second major wage theft settlement in as many weeks out of New York Attorney General Eric Schneiderman’s office.

A Nation of Takers? (NYT)

Nicholas Kristof writes that there are, in fact, public welfare programs that are wasteful: subsidies for private planes and yachts, subsidies to hedge funds in the form of "carried interest," and the like.

New on Next New Deal

In Seattle, Calls for a Higher Minimum Wage are Calls for Democracy

In her remarks to the Seattle Income Inequality Symposium, Roosevelt Institute President and CEO Felicia Wong says that we should raise the minimum wage for the same reasons that President Roosevelt first implemented it.

Insurance Pays for Health Care. Who’s Providing It?

Following a congressional briefing last week, Roosevelt Institute Communications Associate Rachel Goldfarb emphasizes the distinction between insurance and care providers as a key reason to keep publicly funded family planning.

  • Roosevelt Take: Read Roosevelt Institute Fellow Andrea Flynn's remarks from the briefing here.

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National Labor Law in the United States: Scanty Protections for Organizing Leave Out Many Workers

Mar 27, 2014Richard Kirsch

This is the third in a series of posts summarizing a new Roosevelt Institute report by Senior Fellow Richard Kirsch, entitled “The Future of Work in America: Policies to Empower American Workers and Ensure Prosperity for All.” The report provides a short history of how the rise and decline of unions and then explores reforms in labor policy to empower American workers to organize unions and rebuild the middle class. Today’s post explains why labor law in the U.S.

This is the third in a series of posts summarizing a new Roosevelt Institute report by Senior Fellow Richard Kirsch, entitled “The Future of Work in America: Policies to Empower American Workers and Ensure Prosperity for All.” The report provides a short history of how the rise and decline of unions and then explores reforms in labor policy to empower American workers to organize unions and rebuild the middle class. Today’s post explains why labor law in the U.S. provides a fragile, limited foundation for giving workers the power to claim a share of economic wealth or have a voice at work.

Last month the body that governs labor law in the United States, which for the first time in ten years has a full complement of members, proposed some new regulations. The uproar from business trade associations was predictably over-the-top, declaring that a proposed regulation simply requiring that businesses disclose the identity of anti-union consulting firms was aimed at taking employers out of the union organizing process entirely.

From the rhetoric of the business lobby and their conservative allies, you would think that the U.S. has robust labor laws, which put employers at a dire disadvantage. But the truth is that federal labor laws provide a weak and limited set of legal procedures for workers who want to organize for a fair share of the wealth they produce.

When the National Labor Relations Act (NLRA) was enacted in 1935, during the heart of FDR’s New Deal, the United States finally recognized the value of providing a systematic legal structure for workers to negotiate with employers. The NLRA’s passage alone did not make union organizing easy. It took continued pressure from striking workers, as well as government-imposed labor peace to ramp up production during World War II, to achieve some compliance by employers with the NLRA’s framework for collective bargaining.

But just two years after the War ended, Southern Democrats joined Republicans, to dramatically weaken the young law – which already had plenty of shortcomings – by passing the Taft-Hartley Act, over President Truman’s veto,. What remains is a tepid law, offering a limited, fragile foundation for organizing workers, complete with loopholes which can be exploited by employers who resist unionization.

The NLRA applies to most – but not all – private sector workers. It leaves out domestic workers, farmworkers, supervisors (workers who supervise others but don’t make policy decisions) and independent contractors (even when they work for one employer). It also leaves out all public employees.

In order for the workers who want to organize to form a union with collective bargaining rights, a majority of eligible workers in a bargaining unit must agree to support the union. The employer and union must agree to who is in the bargaining unit (or the NLRB will decide), which typically is no wider than a single facility or a certain category of workers in a single facility or department.

Workers can request to form a union by having a majority sign union cards, but the company can insist on an election, during which the company can bar union representatives from speaking at the worksite, but can compel workers to listen to anti-union speeches.

While employers are not legally permitted to fire a worker for supporting the union or for taking other forms of collective action, the only penalty that employers face for firing a worker is that they are required to re-hire the worker and provide them with back pay. Moreover, this back pay award is reduced by the amount of wages that the employee earned or could have earned after the firing. It often takes years before the Board and courts order even such a small penalty. These weak penalties make it easy for employers to break the law, and, as a result, the firing of union supporters has become commonplace.

Once a union is recognized – either by winning an election or by card check – the union and the employer are required to bargain in good faith over wages, benefits, and working conditions. Other factors impacting workers are off the table unless the union and employer agree to discuss them. If an employer refuses to negotiate in good faith, the Board may request that a federal court hold the employer in contempt and fine it, a process which usually takes years. If the employer and union do negotiate but cannot agree on these questions, the employer may determine actions on its own.

During contract negotiations, both sides are permitted to use economic pressure to win concessions over mandatory subjects. The union can not apply economic pressure to suppliers or customers, only to the employer itself. The NLRA prohibits employers from firing strikers, but employers are entitled to hire permanent replacements for strikers. After the strike ends, any striker who has been permanently replaced technically remains an employee, unless she has found comparable work. But the employer is not required to actually offer them work until a position becomes open. As a result, striking workers may be out of work for a long time or never offered a job at the firm.

Employers are also permitted to lock out workers. Workers who have been locked out also may be replaced temporarily, but not permanently. If a union strikes over an employer’s commission of an unfair labor practice – such as firing a worker for supporting the union – the employer may hire only temporary replacements, and they must reinstate the strikers immediately upon the end of a strike.

Of course, it takes timely action by the Board, backed up by federal courts, to enforce any of these protections. But, as we discussed in the previous post in this series, a combination of appointments of regulators hostile to the NLRA and aggressive corporate resistance to complying with the law have made timely enforcement the exception.

Today, the NLRA process is used much less than in the past. The number of elections for union representation dropped by 59% from 2000 to 2012, from 2,957 to 1,202. Most of the elections were to continue current union representation, rather than win the right to bargain for new workers. The number of new workers organized through the election process in this period shrank from 106,459 in 2000 to 38,714 in 2012, a decrease of 64%.

The weaknesses in current labor law, particularly in relation to the changes in the economy between the mid-twentieth century and today, provide the context for the following posts in this series, which present an array of proposals to reform and transform labor law for the 21st century economy. 

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Daily Digest - March 27: Playing in the Big Leagues of the Labor Debate

Mar 27, 2014Rachel Goldfarb

Click here to receive the Daily Digest via email.

Click here to receive the Daily Digest via email.

Northwestern Players Get Union Vote (ESPN)

The Chicago district of the National Labor Relations Board has ruled that Northwestern's football players qualify as employees, in part because their scholarships are tied to performance, reports Brian Bennett.

Connecticut Senate Approves Bill to Raise Minimum Wage to $10.10 (Reuters)

The state legislature's lower house is expected to pass the bill as well, reports Richard Weizel, which would make Connecticut's minimum wage the highest of any state's.

Who Needs a Boss? (NYT)

Worker-owned cooperative businesses could be a key way to shift wealth from investors to labor and reduce economic inequality, writes Shaila Dewan. And such co-ops are on the rise again in the U.S.

Payday Loans Aren’t the Problem. The Problem is Poverty. (WaPo)

Lydia DePillis argues that when discussing regulations for predatory payday lending, it's important not to lose sight of the root cause. In the long run, fighting poverty will do far more than increasing regulations.

Taxpayer Subsidies and Too-Big-to-Fail Banks (NYT)

Teresa Tritch suggests that the Federal Reserve of New York's study on "too big to fail" ends without clarity, since the data only goes through 2009, before the biggest post-crisis reforms were even passed into law.

Piketty's Inequality Story in Six Charts (The New Yorker)

John Cassidy pulls six charts from Thomas Pikkety's book, Capital in the Twenty-first Century, to explain the book's narrative of inequality through shares of income and wealth of various groups.

New on Next New Deal

National Labor Law in the United States: Scanty Protections for Organizing Leave Out Many Workers

In the third post in his series on his new report on labor reform, Roosevelt Institute Senior Fellow Richard Kirsch examines the weaknesses of American labor law, particularly the National Labor Relations Act.


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How the Weakening of American Labor Led to the Shrinking of America’s Middle Class

Mar 26, 2014Richard Kirsch

This is the second in a series of posts summarizing a new Roosevelt Institute report by Senior Fellow Richard Kirsch, entitled “The Future of Work in America: Policies to Empower American Workers and Ensure Prosperity for All”.

This is the second in a series of posts summarizing a new Roosevelt Institute report by Senior Fellow Richard Kirsch, entitled “The Future of Work in America: Policies to Empower American Workers and Ensure Prosperity for All”. The report provides a short history of how the rise and decline of unions and then explores reforms in labor policy to empower American workers to organize unions and rebuild the middle class.  Today’s post describes the corporate effort beginning in the 1970s to grab more of the nation’s wealth, at the expense of workers.

When General Motors President Charles Wilson told a U.S. Senate Committee in 1953 that what was good for General Motors was good for the country, he captured an era in which the good wages and benefits earned by the workers at U.S. manufacturing companies powered the nation’s economy and built the middle class.

But sixty years later, what is good for the GM of our day – Walmart – is clearly not good for America, as a comparison between the biggest private employers of both eras underscores. While the American auto industry operated on the premise of one of its founders, Henry Ford, that workers should get paid enough to buy its costly products, Walmart operates on the premise that its workers should get paid so little that the only place they can afford to shop is at their low-priced employer.

A General Motors plant was the anchor of a community. It became the hub of a supply line for auto parts manufactured by other unionized companies. Its managers and factory workers earned enough to shop at local businesses and pay taxes to support public services. They had the resources and time to participate in the life of the community. They expected to stay with GM for their entire careers and to retire on a pension earned while working at the firm.

How very different from Walmart. When a Walmart opens up, local businesses close. Wages decline throughout the community. Many of the items in a Walmart store are made outside of the country, part of a global supply chain built in search of lower wages in order to meet Walmart’s low pricing demands. Workers often earn so little that they qualify for government benefits. Many Walmart employees are hired part-time or as temps. They lack job security and retirement security, other than the small Social Security checks their wages will accrue.

There are stark differences between prospects for organizing workers into a union between the auto factories of the 20th century and the Walmarts of today. The GM plant in which workers staged the famous sit-down strike in Flint, Michigan in 1937 employed 47,000 workers. The average Walmart store employs 300 workers. It would be too expensive for an auto manufacturer to shutter a factory threatened by a strike. But when workers voted to unionize a store in Canada, Walmart closed down that location, a small loss for a company with 4,200 stores.

How did the transition from the manufacturing economy to the Walmart economy occur? The breakdown of the union and government enforced New Deal social compact, in which major corporations shared their profits with their workers, began in the mid-1970s. The resurgence of economies around the globe and the shocks of oil price increases threatened the dominance and profitability of American business. The U.S. began bleeding manufacturing jobs, a loss of 2.4 million jobs between 1979 and 1983.

U.S. corporations responded in a number of ways. One was to insist that, in the words of a 1974 Business Week editorial, “Some people will have to do with less…so that big business can have more.”

Corporations increased their focus on rewarding shareholders with short-term profits, rather than investing in their workers or in long-run growth. General Electric, for example, slashed its workforce and cut investment in research, and its stock price soared.

When Chrysler faced bankruptcy in 1979, the United Auto Workers agreed to an end to annual wage increases tied to productivity. These concessions were then extended to unionized workers at Ford and General Motors. As Harold Meyerson writes, “Henceforth, as the productivity of the American economy increased, the wages of the American economy would not increase with it.”

Corporations also began exploiting weaknesses in U.S. labor law, which allowed corporations to hire replacements for striking workers. In 1981, a period of high unemployment, President Ronald Reagan fired the nation’s air-traffic controllers for going out on strike. Major firms in a host of industries followed Reagan’s precedent: they demanded that their workers accept lower wages, which precipitated strikes, and then hired replacement workers at lower wages. The strike - the central tool that workers had used to win their fair share of economic growth - virtually evaporated over the next few decades. In the 1960s and 1970s, workers staged an average of 286 strikes a year. That declined to 83 strikes a year in the 1980s and finally to 20 a year since 2000.

In the early 1970s, after major consumer and environmental legislation was enacted by Congress over the objections of big business, Corporate trade associations moved their offices to the nation’s capital and made big investments in lobbying and campaign contributions. The policies they pushed included gutting trade protections for American manufactured goods. This eased the way for the loss of 900,000 textile and apparel jobs in the 1990s and 760,000 electronics manufacturing jobs in the past two decades.

Corporations pressed for the appointment of national labor law regulators who were antagonistic to unions. The combination of weak labor laws and hostile regulators enabled businesses to resist union organizing more aggressively. Unions lost members, and their political clout declined relative to surging corporate political power. Their efforts to win labor law reform fizzled, even in Democratic administrations from Carter to Clinton to Obama.

As major banks and Wall Street firms went public, they too became focused on short-term profits. They drove the businesses to which they loaned money or invested in to maximize their short-term profits by cutting pay and benefits and by firing workers. A hot private equity industry saddled businesses with huge debts and drove firms to slash labor costs.

While the labor movement as a whole was slow to respond, there were some major unions that refocused resources on organizing new members. These unions won some victories in a few sectors, notably health care and in the public sector. But the gains were not enough to reverse the decline of union membership in traditional strongholds like manufacturing and construction. Today, unionized workers make up 11% of the workforce, the lowest level in 97 years. With only 7% of private sector workers in unions, the labor movement can no longer play an effective role in raising workers’ wages throughout the economy.

American workers remain among the most productive in the world; productivity in major sectors like manufacturing continues to rise. But in industry after industry, the share of revenues going to wages has dropped, while the share going to profits has soared. Labor’s share of national income has plummeted, while the share taken by capital is at a record high. If median annual income had kept up with productivity, it would now be $86,426. But the current median income is actually $50,054, the lowest it has been since 1996 when adjusted for inflation.

Today, unemployment is stuck at high levels. Millions of workers are trapped in part-time jobs or jobs for which they are over-qualified. Most of the new jobs that have slowly emerged after the recession are low-wage jobs, but the proportion of high-wage jobs is also on the rise. It is the share of middle-wage jobs that is shrinking.

Economies will always face challenges. But the crushing of America’s middle-class over the past forty years was not inevitable. It was the result of decisions made directly by corporate America to advance public policies that enabled them to take more of America’s wealth and to share less with American workers. One of the most significant of these corporate strategies was to weaken the ability of unionized workers to demand a fair share of the nation’s growing wealth, whether they demanded their fair share at the bargaining table or in the halls of Congress.

Rebuilding the engine of our economy - the middle class - requires us to re-imagine how organized workers can once again exercise power to recreate an America in which prosperity is broadly shared.

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Daily Digest - March 26: Worker Misclassification Leads to Missing Wages

Mar 26, 2014Rachel Goldfarb

Click here to receive the Daily Digest via email.

The Death of an Employer Scam (TAP)

Click here to receive the Daily Digest via email.

The Death of an Employer Scam (TAP)

Workers who are misclassified as independent contractors lose out on wages, benefits, and workplace protections - but Harold Meyerson says recent crackdowns could signal the end of industry-wide misclassification.

Unemployed, and Heading Toward Foreclosure (MSNBC)

More than half of the long-term unemployed live in owner-occupied homes, reports Suzy Khimm, and now they're struggling to keep their homes with no income and less-than-successful safety net programs.

America's Class System Across The Life Cycle (PolicyShop)

Matt Bruenig borrows charts from a wide variety of sources to look at how income inequality effects full lives, from childhood stress levels, to college completion rates, to age of death.

The Right's New "Welfare Queens": The Middle Class (The New Yorker)

George Packer says that Republican Senators at a recent committee hearing preferred to pin the economy's problem on adults choosing not to work instead of income inequality.

Democrats, as Part of Midterm Strategy, to Schedule Votes on Pocketbook Issues (NYT)

Jeremy W. Peters and Michael D. Shear report that the Senate Democrats' goals are less about passing legislation to fight inequality than getting Republicans on record opposing these bills.

U.S. Banks Enjoy 'Too-Big-to-Fail' Advantage: Fed Study (Reuters)

Emily Stephenson and Jonathan Spicer report on a new series of research papers by Federal Reserve economists that confirm that "too big to fail" advantages continued into 2009, after the financial crisis.

Will a For-Profit Degree Help You Get a Job? (The Atlantic)

Graduates of 72 percent of for-profit college career programs earn less than high school dropouts, reports Sophie Quinton. That's led to concerns that such schools waste federal financial aid, and calls for tighter standards.

New on Next New Deal

How the Weakening of American Labor Led to the Shrinking of America’s Middle Class

In the second post in his series describing his new report on labor organizing reform, Roosevelt Institute Senior Fellow Richard Kirsch looks at the era in which corporations began to shift profits away from workers.

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The Role of Labor Market Regulation in Rebuilding Economic Opportunity in the U.S.

Mar 25, 2014

Download the paper (PDF) by Annette Bernhardt

Download the paper (PDF) by Annette Bernhardt

At the start of the 21st century, millions of Americans face a daunting labor market that, absent coherent and sustained policy intervention, will very likely provide them with fewer career opportunities and less economic security than their parents enjoyed. While globalization is often blamed for the deterioration in labor standards, it is domestic service industries where the low-wage problem is most acute. One of the key drivers of precariousness in these sectors is employers’ growing evasion and violation of both legal and normative standards, facilitated by the withdrawal of government’s hand in the labor market. Myriad factors describe this new world of work: the weakening of employment and labor laws; under-resourced enforcement of a host of regulations; production chains that mask legal accountability; the exclusion of groups of workers from legal protection; and a dysfunctional immigration policy. To reinvigorate labor market regulation opportunity, government should: establish a strong floor of labor standards; vigorously enforce that floor; and build a base of good jobs on top of that floor.

Key Arguments:

  • The days of business self-regulation are long gone, or never existed in today’s low-wage industries; therefore, government’s hand must be visible again. 
  • Labor market regulation should play a central role in the U.S. policy response to rising inequality, via three main strategies:
    • strengthening the floor of labor standards (wages, health and safety, and right to organize chief among them);
    • vigorously enforcing that floor (and holding employers accountable for the working conditions they control, whether directly or indirectly); and 
    • leveraging government contracting and grants to build a base of good jobs on top of that floor. 
  • In the current political climate, winning change at the national level will require ratcheting up from state and local policy campaigns to federal reform.

Read "The Role of Labor Market Regulation in Rebuilding Economic Opportunity in the U.S.," by Roosevelt Institute Fellow Annette Bernhardt.

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