In the 1930s, at the time of the writing of the Wagner Act—the law which grants workers the right to form unions and collectively bargain— union organizing took place during shift changes on factory floors and over beers in union halls. The law protected workers from retaliation for this type of in-real-life organizing, and it still does.
But times have changed, and often the only points of contact for workers at any given company are email, Slack, and Facebook groups. Today, it’s difficult, even dangerous, to organize when you don’t know who is lurking in your emails or secretly spying on your social media groups.
In a new report “Clean Slate for Worker Power,” released last Thursday by Harvard Law School’s Labor and Worklife program, experts argue that U.S. labor law is obsolete and in need of a massive overhaul to meet the needs of workers organizing in modern times. The report is a list of recommendations compiled by more than 70 labor leaders, scholars, and activists that they believe would make it drastically easier for any worker to join a union.
“If workers are organizing on Facebook or through other digital means, it should be unlawful for the employer to lurk on their pages—just like employers aren’t allowed to look through the windows of the union halls in the old days.”
These recommendations include labor representation on corporate boards, expanded rights for gig workers and contractors, and, importantly, digital rights for workers.
“When [legislators] looked out at the economy in 1935, they saw factories where people worked similar shifts at similar jobs,” Benjamin Sachs, an author of the report and a professor of labor at Harvard Law School, told Motherboard. “But the modern workplace is fissured. Now we have gig workers and temp workers and franchised workers and freelancers. Empowering workers in the modern economy is different.”
“There is no actual water cooler anymore,” Sharon Block, another author of the report, and director of Harvard’s Law School’s Labor and Workplace program, told Motherboard. “We recommend that employers should have to create digital meeting spaces, virtual water coolers, where there’s a safe space for workers to talk with each other about their collective interests.”
Indeed, as more and more people work remotely sometimes hundreds or thousands of miles away from their nearest co-workers—granting digital rights to workers is a crucial step to rebuilding labor power. The report’s authors suggest that union organizers should be allowed to access company email systems when a quarter of workers at a company express support for a union, and create other digital spaces for workers to organize free from surveillance. (In late December, workers lost the right to organize on company email and Slack.)
“If workers are organizing on Facebook or through other digital means, it should be unlawful for the employer to lurk on their pages—just like employers aren’t allowed to look through the windows of the union halls in the old days,” Block, who is also a former member of the National Labor Review Board (NLRB), said. “In the old days, you had employers writing down the license plate numbers of cars driving to the location of a union meeting. The modern analog is employers on Facebook groups, trying to figure out who’s there and using that information to the detriment of workers.”
The report recommends that workers should also be able to sign digital cards during the “card check” process, and to have digital spaces where they can do this. (Card check is a process by which workers can form unions when a majority sign authorization cards).
It’s often said that the most important leverage workers have over their employers is the right to go on strike and picket outside the stores, factories, and offices where they work. But in a world where people increasingly turn to the internet to shop for everything and anything, that isn’t always possible. To solve this problem, the report’s authors recommend the formation of cyber picket lines.
“The idea of a picket line is an old economy mechanism,” said Sachs. “There’s a factory or a store where you can march in front of to discourage customers from shopping. But you can’t picket Amazon because there’s no store. Our idea is to mandate companies to let workers do digital picketing. So if there’s an Amazon strike, every time you go to Amazon.com, it’d say ‘Amazon workers are on strike. Click here to cross the picket line.’”
While many of their recommendations seem utopian, the report’s authors say that without a complete reinvention of US labor law, there’s little hope for redistributing political and economic power in the country.
“We’re living in a time of deep economic and political inequality, and these are dual crises which threaten to undermine our democracy,” said Sachs. “The failure of [labor law] to empower workers has a lot to do with those crises. Without the ability to join strong labor organizations, it’s hard for workers to have either economic or political equality.”