Just Cause Employment as Labor Law Reform

I’ve expressed skepticism about the possibility of federal labor law reform, the white whale of organized labor.  Instead, I’ve suggested two alternate routes–first, the use of executive orders or other presidential policies to advance labor rights, and second, state level reforms.  Obviously, any effort needs to find a way to make a case that goes beyond ‘this will be good for unions’.  This is true even through non-union workers and society as a whole benefits from strong unions.

At Just Cause Reform (h/t Corey Robin), Rand Wilson offers a suggestion that meets that criteria and can be pursued at multiple levels–meaning it would not depend on getting a bill through the Senate.

What’s left to achieve that might inspire all workers—union and non-union alike?

“Employment security” could be the remaining frontier. A campaign to pass state laws requiring “just cause” before a worker is fired could also spur union growth, since one of the top reasons workers are afraid of organizing is the knowledge they are likely to be terminated.

Our existing laws have not diminished workers’ fears because the procedures are too uncertain and lengthy (two to three years at the Labor Board and another two years in the courts) to provide any assurance. Winning state “just cause” laws that allow cases to be decided quickly by arbitrators might give workers more confidence.

On the face of it, this proposal seems far more plausible then the alternatives.

Winning “just cause” legislation will certainly not be easy. But building a movement on a similar scale to the effort put behind EFCA would offer union activists an opportunity to champion an issue that would benefit all workers and also help union growth.

A “just cause” campaign could potentially engage working people at many levels. Short of state or federal legislation, local unions, central labor councils, and worker centers could seek to enforce a just cause standard through workers’ rights boards and community pressure.

I don’t see this as a magic bullet.  But in terms of finding a way to turn back the tide, both for union rights (and density) and employee rights in general, this holds a lot of promise. I was drawn to the idea of just cause employment before, but thinking about it as labor law reform makes it even more appealing.

Thirteenth Amendment and the Normalization of Coercion

The other day I linked to Balkin and Levinson’s excellent new piece, The Dangerous Thirteenth Amendment.  The basic idea is that, because the 13th Amendment lacks a state action component*, and because coercive relations are exceedingly common outside the context of chattel slavery, a broader understanding had the potential to seriously disturb that status quo (especially racial and gender hierarchies).

Discussing why the North turned against Reconstruction and the cause of equal rights for black (men), Balkin and Levinson noted:

Northern white elites increasingly feared what they perceived as the threat of “socialism”—demands by freed blacks and their white sympathizers for redistributive programs. Elites feared that newly empowered majorities would be led astray by “[w]eak-minded sentimentalists or corrupt demagogues” who would stir up discontent among the masses.  Benedict tellingly quotes a now-forgotten reformer, Abram S. Hewitt, who wrote that “[t]he problem . . . . is to make men who are equal . . . in political rights and . . . entitled to the [formal right of] ownership of property content with that inequality in its distribution which must inevitably result from the application of the law of justice.” (citations omitted)

One might think that it was generations of forced labor, rather than efforts to correct that, were ‘redistribution’.  (This quote is also an important reminder that ‘socialism’ typically means ‘failing to reinforce inequality and hierarchy.’)

There’s a lot to this argument.  But Balkin and Levinson frame the discussion around a choice between 1) understanding the term ‘slavery’ as simply applying to chattel slavery, which they argue was largely how it was meant at the time of the framing of the 13th Amendment or 2) understanding the term more broadly as “the project of ending domination in social life, and securing self-rule and self-sufficiency,” which is closer to how it was understood earlier in history and by later movements that sought to draw on it (like the labor and Civil Rights movements).  But the text itself counsel against this, barring “slavery [or] involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted.”  Focusing on that, as well as understanding, as the court long has (as the authors discuss as well), that this extends to “badges and incidents of slavery,” suggests a far wider scope for the 13th Amendment without reaching back into history for alternate meanings. It’s also worth pointing out that the amendment contemplates primarily legislative enforcement, again, like the 14th and 15th Amendments, something that’s been largely ignored but flows logically from both history and text.

That said, when one adds together things like the Preamble, the Bill of Rights, and the 13th and 14th Amendments, I think you get to a fairly radical place, one which does at least question domination in social life.  These provisions all embody the notion of  equal personhood.  There are parallels to be made between chattel slavery and other institutions, and it’s worth engaging these questions.  Breathing life into the 13th would advance this project, which is one more reason why this piece is so important. It reminds us to take seriously the deep resonance between various forms of oppression and various movements of liberation.  Challenging the normalization of coercion, tying together its different forms, is the best sort of politicization, something that is sorely needed.

*I actually think too much has been made of this when it comes to the 14th Amendment.  The Equal Protection Clause requires states to provide the protections of law equally. (It’s easier to notice what it’s saying when you disentangle the words used).  What are the protections of law for? Protecting us from others, especially private actors.  I believe this was the way the clause was understood when it was adopted but that it was rewritten as about government discrimination for the same reasons – a broader understanding was and remains ‘dangerous.’

Workplace Coercion and the Public / Private Divide

If you haven’t been following it I can’t recommend enough catching up with a series of posts that began with Chris Bertram, Corey Robin and Alex Gourevitch (BRG) launching a broadside against the Bleeding Heart Libertarians (BHL) concerning coercion in the workplace. I described the larger conversation as “the best thing on the internet”.  The central point is that the workplace is an arena of considerable coercion where employees have vastly fewer rights than they do in relation to the government, or for that matter, then most people probably realize.

Libertarianism is a philosophy of individual freedom. Or so its adherents claim. But with their single-minded defense of the rights of property and contract, libertarians cannot come to grips with the systemic denial of freedom in private regimes of power, particularly the workplace. When they do try to address that unfreedom, as a group of academic libertarians calling themselves “Bleeding Heart Libertarians” have done in recent months, they wind up traveling down one of two paths: Either they give up their exclusive focus on the state and become something like garden-variety liberals or they reveal that they are not the defenders of freedom they claim to be.

I’m less interested in discussing the critique of the BHL than I am in the issue of workplace coercion and the public  / private distinction that makes it difficult to see this in the first place.

By public / private distinction, I mean a deeply ingrained cultural narrative that opposes the private sphere / the natural world / the market / voluntariness  vs. the public sphere / interference / government / coercion.  Margaret Somers argues this idea has its origins in Locke, who was seeking to create a way of restraining the monarchy by elevating a pre-political, fundamental private sphere that could not be legitimately interfered with, since the primary threat of the time was a newly empowered absolutist monarch.  Somers argues these ideas distinguish what is considered reasonable from what is not, operating not as a premise in logical arguments but rather structuring how people perceive the world in the first place.

Ultimately, this doesn’t mean that people don’t know that the workplace is coercive, it means that this experience is often not politicized–in the sense that it’s experienced as a problem about individual companies or managers.  Or from a third-party stance, it is not something that poses a problem–for example the presumption that such coercion must have some economic rationale (and the implicit notion that profit-making would thereby justify it). Something becomes politicized when we tie our own fate to others, when we see this as about ‘work’, for example. as opposed to ‘this job’.

The difficulty here is that while libertarians tend to be the loudest critics of laws and regulations, it’s by no means limited to them. Neoliberals are also skeptical of labor regulations, and treat markets as presumptively legitimate. And conservatives who are openly hostile to civil libertarianism often take such positions as well.

This is the conversation the left needs to have, and it’s one we haven’t, in part because the right has been dominating the conversation, dictating the questions to be asked, etc.  In the end, the various answers to the question posed at the outset–can bosses demand that their employees to have sex with them or be fired–have been wanting.  Just raising these questions helps makes the underlying assumptions less obscure.  My sense is that they only hold their power because we don’t typically attend to them.

It would also be helpful if we were to raise questions about terms like the private sector, intervention, or market, all of which do more to obscure than to reveal.  But that is a subject for another post.

(Corey Robin has been rounding up the various responses to the original post. The latest one is here).