U.S. Supreme Court Poised To ‘Weaken Workers’ Power’

“The worst-case scenario…would be a return to the Lochner era…the precedent it set was used to void child-labor and minimum-wage laws.”

By Steve Wishnia

Editor’s Note: This is part one of a two-part Work-Bites report

With six justices on the Supreme Court, the extreme right wing now has a majority to rewrite American labor law substantially — and there is an extensive and well-financed network developing legal arguments and filing lawsuits for it to do just that.

Their overall principle is “to weaken workers’ power in any way possible,” says an attorney for a large national union, speaking anonymously. Unions, she adds, are the strongest source of that power, both in the workplace and in creating an ethic of solidarity in the larger political sphere. Michael Duff, a former Teamsters member now a law professor at St. Louis University School of Law, calls it “the cosmic conservative judicial project.”

The worst-case scenario, they and other labor-side lawyers say, would be a return to the Lochner era, named after the 1905 decision that held a New York State law that bakers couldn’t work more than 60 hours a week unconstitutional because it violated workers’ freedom to make contracts. The precedent it set was used to void child-labor and minimum-wage laws.

It’s hard to predict what will happen, American Federation of Teachers general counsel David Strom told Work-Bites, as it will depend on what cases the Court chooses to hear. But “you can learn an awful lot by looking at what the Chamber of Commerce wants in terms of labor issues,” he adds.

Three likely areas of contention are restricting the right to strike and what “concerted activity” is protected under federal labor law; narrowing who is defined as an employee and expanding who is an independent contractor with no rights; and weakening government power to regulate on workers’ rights and occupational safety.

The right to strike

Glacier Northwest v. International Brotherhood of Teamsters Local 174, in which the Court heard oral arguments in early January, involves both the right to strike and government regulation. A Seattle concrete company is seeking the right to sue the union in state court for concrete that hardened before it could be used during a 2017 strike by drivers. To gain that right, it has to find a way around the current precedent that it can’t sue for damages until after the National Labor Relations Board rules on whether the property damage was deliberate and more than incidental, and therefore not covered by protections for strikers.

“It’s sort of shocking that the Supreme Court even took this case,” Strom says. “It’s a signal that the majority… is trying to erode the jurisdiction of the Board.”

He calls that “very worrisome.” If the Court rules that the loss of perishable goods qualifies as intentional property damage, he explains, it would make it next to impossible for food-industry workers to go on strike.

There’s always economic harm in a strike, notes West Virginia University Law School professor Anne Lofaso, a former NLRB attorney. “If any economic harm to an employer is considered ‘property damage,’” she says, “it would punch a huge hole in the National Labor Relations Act.”

The right wing and the employer lobby have been trying to undermine the right to strike for decades, she adds, going back to the Taft-Hartley Act of 1947’s ban on secondary boycotts. “They can’t get rid of the [NLRA],” she says, “so they’ll make it nonfunctional.”

The gig-economy question

The difference between employees and independent contractors is another major battle. This goes far beyond the gig economy; employers have defined workers from port truckers in Los Angeles to office-building janitors in Boston as independent contractors. That means they don’t have to be paid minimum wage or overtime; can’t legally form unions; and aren’t eligible for workers’ compensation and unemployment benefits.

“There is no labor law if workers aren’t employees,” says Duff, who is also a former NLRB attorney. “A big part of the right-wing agenda has been to destroy the employment relation.”

The Department of Labor has proposed rescinding a rule approved just before the Trump administration left office that narrowed when employees can be considered misclassified as independent contractors. It wants to replace it with a rule based on a “totality-of-the-circumstances analysis,” including what kinds of control an employer is able to exercise over the worker, not just what it actually does.

David McFadden, a lawyer for the Freedom Foundation, an Olympia, Washington outfit that has been aggressively canvassing public-sector workers on the West Coast to quit their unions, blames the Labor Department for giving employers an incentive to hire independent contractors instead of employees. Businesses do it, he wrote in January, to avoid having to cope with “the wage and hour requirements of the Fair Labor Standards Act, the excessively complicated regulations of the Wage and Hour Division, and the collective bargaining requirements of the National Labor Relations Act.”

If the department’s final version of the rule isn’t acceptable to “conservative organizations,” he added, “litigation challenging the regulations is a certainty.”

Regulations and possible omens

Much of labor law is administrative law, says Duff. Federal laws generally give agencies authority to decide how to apply them in specific cases. Congress did not envision COVID when it passed the Occupational Safety and Health Act in 1970, he explains, and it certainly did not envision social media in 1935 when it enacted Section 7 of the NLRA, protecting workers’ “concerted activity.”

“I’m worried about limitations and restrictions on Section 7,” he says. The NLRB has ruled that it’s illegal to fire workers for clicking “like” when a coworker complains about working conditions on Facebook. But what would happen if the Court decided that only explicit union activity qualified for protection? Union-organizing campaigns begin with the smoldering of discontent among nonunion workers.

Justice Neil Gorsuch’s majority opinion in the 2018 Epic Systems v. Lewis decision held that if employees signed individual arbitration agreements, they could not file class-action suits. “The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace,” he wrote.

Gorsuch acted as if Section 7 applied only to union activity, not to grievances by nonunion workers, Duff says.

The Court’s 2021 decision in Cedar Point Nursery v. Hassid might also indicate its path on labor issues. By a 6-3 vote, it struck down a 1975 California law that guaranteed union organizers access to speak to farmworkers on their job sites up to three hours a day — before work, during lunch, and after work — for 120 days a year. Justice John Roberts wrote that the law “appropriates a right to invade the growers’ property” and therefore was a “taking,” violating the Fifth Amendment’s clause that private property can’t be taken for public use without “just compensation.” (Justice Stephen Breyer, dissenting, argued that the law “regulates,” but “does not appropriate,” the owners’ right to exclude others from their property.)

That the decision found the law a “taking” shows “how aggressive and regressive the Court is in overruling labor law,” says Strom. The national-union lawyer said it was creating “new constitutional rights no one has ever heard of.”