In the United States, workers' ability to collectively bargain with their hiring parties is primarily regulated by three federal statutes. All of these statutes, and in fact, pretty much anything we're going to discuss from here on in, only protect workers who are classified as employees. So from now on, we have to keep in mind two things. First, the worker in question has always already been classified as an employee and the party that hired them has been classified as an employer. Second, since gig workers are virtually never classified as employees right now, none of these existing laws apply to them. Each of these three statutes has an official title and an informal one that references the legislatures who were primarily responsible for championing the law. First, there's the National Labor Relations Act of 1935 which is also known as the Wagner Act. Second, there's the Labor Management Relations Act of 1947 which is also known as the Taft-Hartley Act. And finally, there's the Labor-Management Reporting and Disclosure Act of 1959, which is also known as the Landrum-Griffin Act. There were statutes before and there have been laws and amendments after, but these three acts remain the foundation of labor law in the United States. Together, these statutes establish a framework for how three types of actors, employees, employee representatives, meaning unions and employers may must and must not behave in the course of negotiating over the terms and conditions work. The acts created a federal agency, the National Labor Relations Board that's responsible for enforcing the laws pertaining to collective bargaining. It functions kind of like a judiciary to hear disputes between the various parties involved. They also created an Office of General Counsel who's independent from the board and is in charge of investigating and prosecuting unfair labor practice cases. In other words, the general counsel functions kind of like a prosecutor and the acts created various protections for employees who wanted to organize themselves or who wanted to join a labor organization, meaning a union in order to negotiate with their employers to secure better working conditions. The board has broad jurisdiction over labor regulation in the United States, but it doesn't universally preempt the authority of States to make laws in this area. There are two judicially developed rules regarding the pre emptive powers of the NLRA scheme. And a set of threshold standards that the board has developed for itself. The descriptions that you see are from an article written by Professor Steve Beffort because I think he does a pretty good job of summing up the judge made rules. Beyond this, the board itself has chosen to restrict its enforcement activities to entities generating a certain dollar figure of gross revenue. This varies by industry and employer type and it's voluntary rather than judicially or statutorily prescribed. Overall though the scope of the NLRA framework is broad meaning that in most cases, states and localities may not make laws that infringe on the NLRA's jurisdiction. And also that most employers will be obliged to comply with the NLRA's rules. There are a whole lot of rules to know about within this regulatory framework, but I want to highlight two provisions of the Wagner Act, as amended by Taft Hartley and Landrum Griffin. First, Section 7 says that employees are allowed to the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing. And to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. And second, Section 8(a) says that it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7. Without these protections, employers could and did fire employees who joined unions and employees who tried to collaborate with their co workers in order to demand better working conditions. Employers could and did intimidate employees using hired goon squads, pay people to infiltrate unions and use violence to break strikes. The NLRA scheme was meant to shield employees from bad acts, to empower them and to make them equals or almost equals in the workplace. All of this probably sounds pretty good, but there are several weaknesses to the American system of labor regulation. Of course, it starts with the fact that only employees get the protections of section 7 and 8(a). It's also that the scheme itself isn't very protective compared to what exists in peer countries. To take just one example, in the United States, employers can hire permanent replacements when employees go on strike, which kind of negates the value of being able to go on strike in the first place. And which is strikingly different from what the law allows in say, Canada. And it's also made worse by the fact that in the United States, states are allowed to enact what are known as right to work laws which stipulate that employees can't be required to join a union in order to get or keep a job. While that might also sound pretty good, it has the inevitable effect of weakening union power because once a union is elected to represent a particular group of workers, it has to represent all those workers regardless of whether or not they are union members. In other words, right to work laws create a free rider problem that costs unions members and money and the weaker union is, the less power it has to negotiate with an employer. But the aspect of our current labor regulation system that's probably the biggest negative for gig workers besides the whole issue of employee classification as a threshold requirement is the fact that in the United States we mostly follow an enterprise approach to collective bargaining rather than a sectoral approach. An enterprise approach is one where unions bargain with individual employers on behalf of a specific group of employees at a specific work site. For example, a union might bargain with a home goods chain on behalf of employees at a particular store, or with a cleaning services company on behalf of the janitors who work in a particular building. Conversely, a sectoral approach is one where the bargaining that a union does establishes contract and compensation terms among other things for most workers in a given occupation, industry or region. Because it's broader in this way, sectoral bargaining is also known as multi employer bargaining, industrywide bargaining and broad based bargaining. You can probably see right away why this would matter to gig workers and, again, assuming they were employees eligible for labor protections in the first place. Gig workers don't have work sites, enterprise bargaining just really doesn't fit the gig work model. This is one area in which the realities of gig work clashes with the structure of work law, although I want to note that enterprise bargaining doesn't work for a whole lot of non gig workers too, and for a lot of other reasons. But whereas the limitations of enterprise bargaining might only affect some group of workers in the conventional economy, it's a defining and inescapable problem for gig workers who want to organize together to win better terms from their platforms. And although it's certainly true that sectoral bargaining happens in the US, hospital workers in New York, supermarket workers in California, hotel workers in las Vegas and office cleaners in several cities are all organized along a sectoral rather than an enterprise model. It's also true that enterprise bargaining remains the dominant or default approach. So in the next session we'll consider some of the alternative approaches developed by workers, workers' advocates and scholars to try to imagine how gig workers might nonetheless collaborate with one another.
