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Benjamin I. Sachs*
INTRODUCTION
More than seventy years ago, the United States Congress
centralized nearly all of American labor law into a single federal statute.
The National Labor Relations Act (NLRA or the Act) was designed to
be sweepingly broad, dictating the kinds of employees who could
organize, the types of organizations workers could form, and the
subjects over which labor and management had to negotiate. The
statute was also aggressively exclusive: neither other federal laws, nor
state and local enactments were to interfere with the operation of the
NLRA or its administrative agency, the National Labor Relations Board
(NLRB or Board).1
Seventy years later, most scholars believe that the NLRA is a failed
* Joseph Goldstein Fellow and Lecturer in Law, Yale Law School. This Article has
benefited from the comments and suggestions made during presentations at the University of
Southern California School of Law, Cardozo Law School, University of Pennsylvania Law
School, University of Michigan Law School, University of Virginia Law School, Columbia Law
School, University of Chicago Law School, Stanford Law School, Harvard Law School, New
York University Law School, Georgetown Law Center, University of California, Berkeley,
School of Law, and Yale Law School. The author also wishes to thank Bruce Ackerman, Anne
Alstott, Mark Barenberg, David Barron, Robert Ellickson, Cynthia Estlund, Owen Fiss, Heather
Gerken, Jennifer Gordon, Lani Guinier, Dan Kahan, Paul Kahn, Michele Landis Dauber, Gillian
Lester, David Montgomery, Robert Post, Judith Resnik, Roberta Romano, Reva Siegel, Vicki
Schultz, John Witt, and Noah Zatz for exceptionally helpful comments and conversation. Annie
Decker provided superb research assistance.
1 The Senate Report on the Wagner Act asserted that the new labor law was to be
“paramount over other laws that might touch upon similar subject matters” in order to “dispel the
confusion resulting from dispersion of authority and to establish a single paramount
administrative or quasi-judicial authority in connection with the development of the Federal
American law regarding collective bargaining.” S. REP. NO. 573, at 15 (1935), reprinted in
LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT 2315 (1949). In testimony
before Congress on amendments proposed shortly following passage of the NLRA, moreover, the
NLRB argued that “central control of administrative policy is essential to the successful
enforcement of any law such as the act.” Proposed Amendments to the National Labor Relations
Act: Hearings Before the H. Comm. on Labor, 76th Cong. 540, at SUPPLEMENT: REPORT OF THE
NATIONAL LABOR RELATIONS BOARD TO THE H. COMM. ON LABOR UPON H.R. 2761, H.R. 4376,
H.R. 4400, H.R. 4594, H.R. 4749, H.R. 4990, AND H.R. 5231, at 43-44 [hereinafter Hearings]. As
explained in detail below, by “labor law” I mean here the law governing union organizing and
labor management relations. See infra text accompanying notes 14-17.
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regime.2 There are two primary diagnoses. The first is that although
Congress intended the law to facilitate worker organizing and collective
action—declaring it to be the “policy of the United States” to protect
“full freedom of association [and] self-organization” among workers—
the statute has proven too weak to fulfill this mission.3 The second
diagnosis is that the regime is too rigid, and that the NLRA’s attempt to
govern the organizing process and the labor-management relationship
from cradle-to-grave has disabled it from keeping pace with changes in
the composition of the U.S. work force and the structure of U.S.
production systems.4
While these failings have prompted numerous proposals for
statutory amendments from both legislators and scholars,5 there has
been no meaningful reform for more than half a century. The Act’s
resistance to change has, in turn, given rise to the widely held view that
labor law is not simply dysfunctional, but “ossified”: that it is
stubbornly and powerfully resistant to the reinvention it so clearly
needs.6
2 See, e.g., KATHERINE V.W. STONE, FROM WIDGETS TO DIGITS: EMPLOYMENT
REGULATION FOR THE CHANGING WORKPLACE (2004); Cynthia Estlund, The Ossification of
American Labor Law, 102 COLUM. L. REV. 1527 (2002). Writing more than twenty years ago,
Paul Weiler commented that “[c]ontemporary American labor law more and more resembles an
elegant tombstone for a dying institution.” Paul Weiler, Promises to Keep: Securing Workers’
Rights to Self-Organization under the NLRA, 96 HARV. L. REV. 1769, 1769 (1983). In 1984, the
House subcommittee on labor-management relations released a report on “The Failure of Labor
Law,” observing that the NLRA “has ceased to accomplish its purpose.” The Failure of Labor
Law—A Betrayal of American Workers, Report of Subcomm. on Labor-Management Relations,
House Comm. on Educ. & Lab., 98th Cong. (1984). And in 1996, James Brudney summed up the
stagnant state of affairs by noting that “[s]ixty years after the National Labor Relations Act was
passed, collective action appears moribund.” James Brudney, The Changing Workplace:
Reflections on Group Action and the Law of the Workplace, 74 TEX. L. REV. 1563, 1563 (1996);
see also Michael Gottesman, In Despair, Starting Over: Imagining a Labor Law for Unorganized
Workers, 69 CHI.-KENT. L. REV. 59 (1993).
3 The statutory language is found at 29 U.S.C. § 151. On the NLRA’s failure to fulfill this
statutory mission, the most well-known scholarly account is Weiler, supra note 2. For a review
of more recent evidence, see, e.g., H.R. REP. NO. 110-23 (2007) (Employee Free Choice Act);
see also John Schmitt & Ben Zipperer, Dropping the Ax: Illegal Firings During Union Election
Campaigns, WWW.CEPR.NET, Jan. 2007, http://www.cepr.net/index.php?option=com_content&ta
sk=view&id=775&Itemid=8.
4 See, e.g., STONE, supra note 2, at 87-119.
5 See, e.g., Samuel Estreicher, Freedom of Contract and Labor Law Reform: Opening up the
Possibilities for Value-Added Unionism, 71 N.Y.U. L. REV. 827 (1996); Mark Barenberg,
Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to
Flexible Production, 94 COLUM. L. REV. 753 (1994); Craig Becker, Democracy in the
Workplace: Union Representation Elections and Federal Labor Law, 77 MINN. L. REV. 495
(1993); Charles B. Craver, The National Labor Relations Act Must Be Revised To Preserve
Industrial Democracy, 34 ARIZ. L. REV. 397 (1992); Michael Gottesman, Rethinking Labor Law
Preemption: State Laws Facilitating Unionization, 7 YALE J. ON REG. 355 (1990); Clyde
Summers, Unions Without a Majority—A Black Hole?, 66 CHI.-KENT. L. REV. 531 (1990); Karl
E. Klare, Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform, 38
CATH. U. L. REV. 1 (1988); Weiler, supra note 2.
6 Estlund, supra note 2. Professor Estlund, in writing about the “ossification” of American
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The diagnoses regarding the NLRA’s failures are accurate. But,
contrary to the prevailing view, neither the statutory scheme nor
Congress’s unwillingness to amend the Act has prevented American
labor law from beginning the process of transformation. To the
contrary, the deep dysfunctionality of the NLRA constitutes a blockage
only of the traditional legal channel for collective action and laborBecause workers, unions, and certain
management relations.7
employers continue to demand collective organization and interaction,8
this blockage has led not to “ossification” but to a hydraulic effect:
unable to find an outlet through the NLRA, the pressure from this
continuing demand for collective action has forced open alternative
legal channels.
This Article explores one of these new channels, which I name
“employment law as labor law.”9 Faced with a traditional labor law
regime that has proven ineffectual, workers and their lawyers are
turning to employment statutes like the Fair Labor Standards Act
(FLSA) and Title VII of the Civil Rights Act of 1964 as the legal
guardians of their efforts to organize and act collectively. Workers, that
is, are relying on employment statutes, not only for the traditional
purpose of securing the substantive rights provided by those laws, but
also as the legal architecture that facilitates their organizational and
collective activity—a legal architecture we conventionally call labor
law.10
To describe this new legal channel, I present detailed accounts of
two collective workplace campaigns. In the first, garment workers at a
labor law, predicted that ossification would set in motion processes of de-ossification. See id. at
1609.
7 See Benjamin I. Sachs, Labor Law Renewal, 1 HARV. L. & POL’Y REV. 375 (2007).
8 For example, one survey conducted in 2005 found that about half (57 percent) of workers
would vote for a union if given the chance to do so. See Peter D. Hart Research Associates, THE
PUBLIC VIEW OF UNIONS (2005). More broadly, Richard Freeman and Joel Rogers report that 88
percent of all workers want some form of collective representation in the workplace: 45 percent
want a “strongly independent workplace organization” (i.e., a union), while 43 percent want “an
organization with more limited independence from management.” Richard B. Freeman and Joel
Rogers, WHAT WORKERS WANT 35 (1999). And yet, as of this writing, only about 12% of U.S.
workers—and less than 8% of private sector workers—are in unions, see BUREAU OF LABOR
STATISTICS, U.S. DEP’T OF LABOR, UNION MEMBERS IN 2006 tbl.5 (2007), available at
http://www.bls.gov/news.release/pdf/union2.pdf, while the NLRA outlaws most nontraditional
forms of organization with “more limited independence from management.” See infra text
accompanying notes 36-38. Thus, this is not a claim that all workers wish to organize, and
certainly not a claim that all workers want a traditional union; just that there exists a substantial
unmet demand for collective organization and action.
9 As I describe elsewhere, other channels are 1) state and local labor legislation and 2)
privately-negotiated agreements for organizing and recognizing unions. See Sachs, supra note 7;
see also infra text accompanying notes 67-69.
10 Put a slightly different way, employment law is providing not only the initial ends of a
collective campaign, but also the legal support structure for workers who seek to achieve those
ends through organizational and collective means.
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Brooklyn factory organize for FLSA overtime rights and then turn to
that employment statute—rather than to the NLRA—to insulate their
collective efforts against employer retaliation. In the second example,
construction workers in Colorado rely on Title VII as the shield for an
organizing campaign directed at remedying viciously discriminatory
workplace practices.
These descriptive accounts contribute to, and build upon, a
literature that has begun to identify alternative forms of worker
organization and mobilization.11 And while previous work has
identified campaigns in which employment law claims, primarily FLSA
claims, are part of an overall organizing effort,12 I offer the accounts
here in order to reveal employment law’s capacity to function as a
substitute form of labor law; that is, to reveal employment law’s ability
to serve as the locus of employees’ collective action and as the legal
mechanism that protects that collective activity from employer
interference.
The developments described here occur, moreover, as scholars
begin to identify ways in which the conventional line between labor law
and employment law is in fact quite blurry.13 The traditional view has
been that labor and employment law constitute dichotomous, and in a
fundamental respect incompatible, regulatory regimes. According to
this view, there are two distinct modes of legal intervention into the
workplace.14 The first is the NLRA regime—often referred to simply as
“labor law”—in which substantive workplace rights are defined and
enforced through the collective efforts of workers. The other regime—
called “employment law”—is an “individual rights” regime in which
workplace standards are established by statute and granted to individual
workers, regardless of the extent of their collective organization and
strength.15 The dominant view among scholars, moreover, has long
11 See, e.g., Sameer M. Ashar, Public Interest Lawyers and Resistance Movements, 95 CAL.
L. REV. 1879 (2007); Alan Hyde, New Institutions for Worker Representation in the United
States: Theoretical Issues, 50 N.Y.L. SCH. L. REV. 385, 411 n.107 (2006); JANICE FINE,
WORKERS CENTERS: ORGANIZING COMMUNITIES AT THE EDGE OF THE DREAM (2006); JENNIFER
GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS (2005).
12 See Ashar, supra note 11; Richard Michael Fischl, Rethinking the Tripartite Division of
American Work Law, 28 BERKELEY J. EMP. & LAB. L. 163, 213-14 (2007); Alan Hyde, Who
Speaks for the Working Poor?: A Preliminary Look at the Emerging Tetralogy of Representation
of Low-Wage Service Workers, 13 CORNELL J.L. & PUB. POL’Y 599 (2004); Mathew T. Bodie,
The Potential for State Labor Law: The New York Greengrocer Code of Conduct, 21 HOFSTRA
LAB. & EMP. L.J. 183 (2003).
13 See, e.g., Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of SelfRegulation, 105 COLUM. L. REV. 319, 329 (2005); Fischl, supra note 12; see generally Ashar,
supra note 11.
14 For a discussion, see infra text accompanying notes 63-80.
15 Labeling employment laws, particularly Title VII of the Civil Rights Act of 1964, as
“individual rights” statutes inadvertently resonates with a debate internal to antidiscrimination
scholarship and law. That conversation asks, in essence, whether or to what extent
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been that employment law’s “individual rights” regime at best provides
no support for—and at worst is inimical to—collective organization and
collective action. Employment law is thus charged with “undermin[ing]
the concept of group action,”16 and with “foreshadow[ing] the eclipse of
the collective bargaining model—indeed, of the centrality of collective
action altogether.”17
Some authors have begun to question this dichotomy.18 To date,
however, the focus has largely been on ways in which employment law
litigation can function as a form of leverage—another arrow in the
quiver—available to workers and unions seeking to extract some set of
demands from employers. This Article moves a step further by, first,
identifying the ways in which employment law can in fact function as a
substitute form of labor law—as the locus of workers’ organizational
activity and as the legal mechanism that insulates that activity from
employer interference—and, second, by offering a theoretical model
that explains employment law’s ability to operate in this capacity.
To this end, I argue that the view of employment law as providing
no support for collective action—or as being inimical to collective
action—is wrong as a matter of theory. The descriptive accounts of the
FLSA and Title VII collective campaigns provide some anecdotal
support for this claim. But drawing conceptual conclusions from
studies of this sort is risky, and the examples serve the more important
purpose of encouraging a broader investigation into the compatibility
between employment law’s individual rights regime and workers’
collective activity. The article therefore moves beyond these accounts
and brings together an array of qualitative and quantitative research in
order to build a model of employment law’s ability to foster collective
action. The model consists of three parts: I show that employment law
can galvanize nascent forms of collective organization, insulate
workers’ collective efforts from employer interference, and set in
motion dynamics that can generate successive forms of collective
activity that go beyond demands for statutory rights.
To demonstrate employment law’s ability to galvanize collective
antidiscrimination law should function according to anticlassification or antisubordination
principles. See, e.g., Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification
Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470 (2004); Jack M. Balkin
& Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?,
58 U. MIAMI L. REV. 9 (2003). I do not intend to intervene in that debate, and instead adopt the
practice—common in labor scholarship—of naming employment law an “individual rights”
regime because it provides a useful way to highlight what labor scholars understand to be the
distinct sources of authority and distinct projects of labor and employment law. For further
discussion of this point, see infra note 58.
16 Brudney, supra note 2, at 1563.
17 Estlund, supra note 13, at 329.
18 See, e.g., id.; Fischl, supra note 12. For a discussion, see infra text accompanying notes
79-88.
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organizations of workers, I rely on qualitative accounts of labor
organizing campaigns as well as social-psychological research into the
related processes of framing and collective identity construction. As I
argue, galvanizing a group of workers capable of acting collectively
involves two interrelated tasks: workers must develop both a common
understanding of a set of shared workplace problems, and a group
identity strong enough to sustain a collective response to these
problems. I show that employment statutes can function as the frame
through which workplace conditions are articulated as collective
injuries, and as the locus around which a collective identity coalesces.
Next, I argue that employment law’s ability to insulate workers’
collective activity from coercive interference flows from the strength of
the statutes’ anti-retaliation provisions. In place of the NLRA’s
notoriously weak remedial regime, statutes like the FLSA and Title VII
offer workers robust damages and immediate injunctive relief if they
face adverse action for engaging in protected activity. Crucially,
moreover, employment laws’ anti-retaliation provisions—unlike the
NLRA—are enforceable through private rights of action. Accordingly,
workers who rely on employment law to protect their organizing
activity are not captive to the NLRB’s glacial pace and inadequate
enforcement resources.
Finally, employment law’s generative potential is suggested by
burgeoning research into the dynamics of reciprocity and collective
efficacy, which indicates that workers’ collective action operates
according to self-reinforcing dynamics of success and failure. That is,
in the context of workplace organizing, success breeds success and
failure breeds failure. By insulating the first phases of collective
activity, therefore, employment law increases not only the chances that
those nascent efforts will succeed but also the likelihood that workers
will engage in and be able to succeed at subsequent and stronger forms
of collective action. As discussed in greater detail below, this
generative potential suggests that although workers who rely on
employment law as labor law must have as their initial organizing goal
the vindication of a statutory right, the successful vindication of those
rights need not constitute the end of organizational efforts but might
rather mark the beginning of a broader endeavor.19
Some caveats are in order. There are very real limitations on the
ability of extant employment statutes to function as labor law. First,
employment law can function in the ways I suggest only in those
instances where workers’ initial goal is the vindication of a statutory
right. Should workers’ initial organizing goal be family health
19 Of course, these same insights offer a new way of understanding why the NLRA’s failure
to insulate the nascent stages of collective activity has crippled that regime’s attempt to foster
workers’ organizational efforts.
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insurance, or a wage above the minimum, or a just-cause dismissal
policy, they would find no shelter in the FLSA or Title VII or any other
existing employment law.20 Second, even when collective action is
aimed at securing a statutory right, context matters. In the two
examples I describe here, the workforces are largely homogenous with
respect to the employment right at issue: almost every employee at the
Brooklyn garment factory faced overtime violations, and 90% of the
construction workforce I examine was Latino and subject to national
origin discrimination. In other contexts, where the workforce is more
heterogeneous, employment law might function effectively to galvanize
one subset of the workforce while excluding other workers from the
collective activity. Third, although statutes like the FLSA and Title VII
offer significant comparative advantages over the NLRA, these statutes
suffer from their own weaknesses, particularly when it comes to
enforcement.21 In both of the examples I discuss below, workers had
the assistance of labor organizations from the very outset of their
collective campaigns. These groups—in one instance a communitybased workers’ center, in the other a union—offered organizing support
and free legal representation. With this backing, the workers were able
to secure enforcement of the statutes’ anti-retaliation provisions;
without such support, successful enforcement would have been more
difficult to achieve.22
Limitations of this sort are inherent in the type of hydraulic process
I describe here: in response to the failure of the traditional regime, an
alternative legal channel has been forced open, but it has not been
20 I say “initial” efforts because, as explained below, if employment law can facilitate success
in the initial stages of collective action, it might generate more robust forms of collective activity
directed at securing workplace goods not offered by statute. See infra Part III.C.
21 See, e.g., Laura Beth Nielson & Robert L. Nelson, Rights Realized? An Empirical Analysis
of Employment Discrimination Litigation as a Claiming System, 2005 WIS. L. REV. 663; Lauren
B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights
Law, 97 AM. J. SOC. 1531 (1992).
22 Indeed, an expanding literature strongly suggests that when workers act collectively they
increase the likelihood that their employment law rights will be enforced. See, e.g., David Weil,
Individual Rights and Collective Agents: The Role of Old and New Workplace Institutions in the
Regulation of Labor Markets [hereinafter Weil, Industrial Rights and Collective Agents], in
EMERGING LABOR MARKET INSTITUTIONS FOR THE TWENTY-FIRST CENTURY 13-47 (Fishman et
al. eds., 2005); David Weil, If OSHA Is So Bad, Why Is Compliance So Good?, 20 RAND J.
ECON. 618 (1996) [hereinafter OSHA]; David Weil, Enforcing OSHA: The Role of Labor Unions,
30 INDUS. REL. 20 (1991) [hereinafter Enforcing]; John W. Budd & Angela M. Brey, Unions and
Family Leave: Early Experience Under the Family and Medical Leave Act, 28 LAB. STUDIES J.
85 (2003); Stephen J. Trejo, The Effects of Overtime Pay Regulation on Worker Compensation,
81 AM. ECON. REV. 719 (1991); John W. Budd & Brian P. McCall, The Effect of Unions on the
Receipt of Unemployment Insurance Benefits, 50 INDUS. &. LAB. REL. REV. 478 (1997); Barry T.
Hirsch, David A. Macpherson & J. Michael Dumond, Workers’ Compensation Recipiency in
Union and Nonunion Workplaces, 50 INDUS. &. LAB. REL. REV. 213 (1997); cf. Alison Morantz,
Examining Regulatory Devolution from the Ground Up: A Comparison of State and Federal
Enforcement of Construction Safety Regulations (Stanford Law School 2007), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=755026#PaperDownload.
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crafted intentionally to serve its new function and it does so only
imperfectly. And yet, the implications of this discussion extend beyond
the promises and limits of existing employment statutes and invite
future inquiry into a provocative set of questions about the best course
for labor law reform. Indeed, the discussion here invites us to imagine
the possibility for a “great trade” in labor law reform: a new regime that
provides much stronger protection for workers’ collective action while
scaling back the type of cradle-to-grave regulation that has defined, and
ultimately undermined, the NLRA.
A labor law reordered according to such a “great trade” would
function by far more effectively galvanizing and insulating the early
stages of collective action in order to set in motion dynamics that can
generate subsequent organizational development. As discussed in more
detail below, such a labor law could, for example, offer employees the
right to organize and act collectively around the substantive workrelated issues they deem appropriate and protect that right with
employment law remedies: private rights of action, immediate
injunctive relief, and robust damages. The regime would also deploy
additional measures to engender dynamics of efficacy and reciprocity,
including mechanisms to expand communication opportunities among
workers. If such a reordered labor law is able to generate the kind of
collective and organizational activity that the NLRA fails to produce, it
might then retreat from some of the labor-management regulation that
has contributed to the NLRA’s obsolescence. Having more effectively
fostered collective action, that is, we could ask whether the new regime
might then leave to the strengths and interests of the respective parties a
large swath of issues currently regulated by statute. These include
questions regarding, for example, the manner in which management
interacts with employees once they organize, and the form that
employee organization takes.23
The article aims to cover a good deal of ground, but there is an
important question I do not address in these pages. My arguments
reveal the ways in which employment law can facilitate workers’
collective action. I proceed from the assumption—which remains the
23 In this sense, such a labor law would share conceptual ground with calls to tailor the U.S.
bankruptcy regime. Alan Schwartz, for example, argues that the only mandatory rules in a
bankruptcy system should be structural ones, with the remainder left to private contracting. See
Alan Schwartz, A Contract Theory Approach to Business Bankruptcy, 107 YALE L.J. 1807
(1998); cf. Elizabeth Warren & Jay Lawrence Westbrook, Contracting Out of Bankruptcy: An
Empirical Intervention, 118 HARV. L. REV. 1197 (2005) (raising empirical questions about
contract approach to bankruptcy). For another example, see Vicki Schultz, The Sanitized
Workplace, 112 YALE L.J. 2061 (2003) (offering a structural approach to sexual harassment law
in which the law guarantees a certain degree of structural sex equality by ensuring that firms are
desegregated, and then assumes women will be able to create norms about workplace sexuality
that do not disadvantage them on the basis of their sex).
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declared policy of the United States24—that facilitating workers’
collective action should be one of labor law’s goals, but I do not mount
a defense of that norm here. I recognize the centrality of this normative
question, and I acknowledge that there are many who will need to be
persuaded that collective action is something the law should foster. But
I bracket this normative debate because we cannot fully engage it until
we first develop a more complete picture of what collective action looks
like today. Indeed, as this Article itself reveals, workers’ collective
action now takes many forms not described by traditional unionism and
collective bargaining and, as such, the long-running debate over “what
unions do” no longer offers adequate answers to this normative
question.25
The article proceeds as follows. In Part I, I outline the NLRA’s
failure to protect workers’ collective action, focusing on the statute’s
remedial regime and its exclusion from coverage of a large, and
growing, segment of the labor force. Part II outlines the conventional
view regarding the conflict between individual rights and collective
action, and then presents the descriptive account of “employment law as
labor law.” Having thus described two contemporary examples of
employment law functioning as labor law, I turn in Part III to the
theoretical inquiry into the congruity between individual rights and
collective action. Here, I model employment law’s galvanizing,
insulating, and generative capabilities. I conclude by inviting inquiry
into the potential for a “great trade” in labor law reform.
24
25
See 29 U.S.C. § 151 (2000).
This normative analysis will involve a diverse set of literatures, including labor economics,
sociology, and political science. For a representative sample, see, e.g., Frank Levy & Peter
Temin, Inequality and Institutions in 20th Century America (Nat’l Bureau of Econ. Research,
Working Paper No. 13106, 2007); Jan E. Leighley & Jonathan Nagler, Unions, Voter Turnout,
and Class Bias in the U.S. Electorate, 1964-2004, (Nov. 2006) (unpublished manuscript available
at http://www.nyu.edu/gsas/dept/politics/faculty/nagler/leighley_nagler_unions06.pdf); Ian DewBecker & Robert J. Gordon, Where Did the Productivity Growth Go? Inflation Dynamics and the
Distribution of Income (Nat’l Bureau of Econ. Research, Working Paper No. 11842, 2005);
Enforcing, supra note 22, at 13-47; John DiNardo and David S. Lee, Economic Impacts of New
Unionization on Private Sector Employers: 1984-2001, 119 Q. J. ECON. 1383 (2004); Barry T.
Hirsch, What Do Unions Do for Economic Performance?, 25 J. LAB. RES. 415 (2004); John W.
Budd & Angela Brey, Unions and Family Leave: Early Experience Under the Family and
Medical Leave Act, 28 LAB. STUD. J. 85 (2003); David Card, Thomas Lemieux & Craig W.
Riddell, Unionization and Wage Inequality: A Comparative Study of the U.S., U.K. and Canada
(Nat’l Bureau of Econ. Research, Working Paper No. 9473, 2003); Benjamin Radcliff & Patricia
Davis, Labor Organization and Electoral Participation in Industrial Democracies, 132 AM. J.
POL. SCI. 132 (2000); David Card, The Effect of Unions on Wage Inequality in the U.S. Labor
Market, 54 IND. & LAB. REL. REV. 296 (2001); Benjamin Radcliff & Martin Saiz, Labor
Organization and Public Policy in the American States, 60 J. POLITICS 113 (1998); John W.
Budd, supra note 14, at 478; John DiNardo & Thomas Lemieux, Diverging Male Wage Inequality
in the United States and Canada, 1981-1988: Do Institutions Explain the Difference?, 50 INDUS.
& LAB. REL. REV. 629 (1997); Hirsch, supra note 22, at 213; Trejo, supra note 22, at 719.
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I. THE NLRA’S FAILURE
The NLRA grants workers the right to organize and act collectively
in their dealings with management,26 and prohibits employers from
coercively interfering with their employees’ collective activity.27
Although several factors have contributed to the NLRA’s “woeful
failure” to fulfill this statutory project,28 the two failings with the most
profound impact are the statute’s deeply inadequate remedial regime
and the Act’s exclusion from labor law’s protection of multiple
groupings of workers central to the contemporary labor force.
As to the NLRA’s remedial regime, the statute’s failure to provide
adequate remedies for employer interference with employee organizing
26 The Act statutorily guarantees employees the right to organize and act collectively for their
“mutual aid [and] protection.” See 29 U.S.C. § 157. On the purposes of the NLRA, see Mark
Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace
Cooperation, 106 HARV. L. REV. 1379 (1993). The protection of workers’ collective action is at
the heart of the statutory project, as the statute’s declaration of policy makes clear. See 29 U.S.C.
§ 151; see also Cynthia Estlund, Reflections on the Declining Prestige of American Labor Law
Scholarship, 23 COMP. LAB. L. & POL’Y J. 789 (2002).
27 See 29 U.S.C. §§ 158(a)(1), (a)(3).
28 For example, from the outset of the organizing process, the NLRA leaves employees illequipped to communicate with one another about associational and collective rights. So while
rules prohibiting employees from discussing organizational activity during work time are
presumptively valid, see, e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); see
generally Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978), the law enables employers to hold
mandatory one-on-one or firm-wide captive audience meetings in order to discourage
unionization. See, e.g., NLRB v. United Steelworkers of Am., 357 U.S. 357 (1958). Similarly,
while the exercise of associational rights often depends on “the ability of employees to learn the
advantages of self-organization from others,” NLRB v. Babcock & Wilcox Co., 351 U.S. 105,
113 (1956), the NLRA grants union organizers no right of access to employer property. See, e.g.,
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The NLRA also imposes a system of
representation elections through which employees are to express their preferences about
unionization, but the labyrinthine election machinery administered by the NLRB provides
innumerable procedural levers easily manipulated by employers who wish to subvert organizing
by delaying the ultimate decision on unionization. See Weiler, supra note 2, at 1778.
The legal regime itself is also partly to blame for generating the intense employer
opposition to workers’ efforts at organization that either blocks organization in the first place, or
poisons bargaining relationships should employees choose to organize in the face of this
opposition. As Professor Estreicher shows, much employer opposition to unionization, and the
significant costs that inhere in such opposition, stems from informational uncertainty regarding
the terms that a collective bargaining agreement would impose. See, e.g., Estreicher, supra note
5, at 834-36. The NLRA, however, prohibits unions and employers from discussing even the
contours of a prospective collective agreement before the union has been certified as the
exclusive bargaining representative of the employer’s employees; that is, before an organizing
campaign is completed. See Majestic Weaving Co., 147 N.L.R.B. 859 (1964); see also REPORT
OF THE NLRB GENERAL COUNSEL ON RECENT CASE DEVELOPMENTS 1, 8-12 (2004). The
statute thereby effectively mandates uncertainty about the implications—for both workers and
management—of unionization. As Professor Estreicher observes, “[m]ost employers respond to
th[is] uncertainty by . . . opposing the union during the campaign,” and thus “[t]hese rules . . .
lock[] employers and unions into an unnecessarily adversarial posture before bargaining
relationships can begin.” See Estreicher, supra note 5, at 835.
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activity has rendered protections for collective action ineffectual.29
Thus, while the NLRB has authority to order an employer to pay back
wages to employees who are discharged in retaliation for engaging in
protected collective activity,30 all such damages must be exclusively
compensatory. No punitive awards of any kind are available,31 and,
accordingly, damages available under the Act “simply are not effective
deterrents to employers” who seek to interfere with workers’ NLRAprotected rights.32
The Act also empowers the NLRB to seek reinstatement of
workers discharged for engaging in protected activity,33 but the endemic
and massive delays that accompany such reinstatement proceedings
have similarly rendered this an insufficient mechanism for protecting
employees engaged in collective action. For example, in fiscal year
2004 the median length of time from an employee’s filing a charge
alleging employer misconduct to the issuance of a final Board decision
was 690 days.34 An employer, however, can often defeat an organizing
drive by discharging union supporters and keeping them out of the work
force for a few weeks or months. Thus, Professor Morris concludes that
“[t]he delay of several years between the discriminatory discharge and
an order of reinstatement and lost backpay . . . renders such an order,
when it is finally issued, virtually meaningless.”35
29 See PAUL C. WEILER, GOVERNING THE WORKPLACE 108-118 (1990); Weiler, supra note
2, at 1769-1803; Charles J. Morris, A Tale of Two Statutes: Discrimination for Union Activity
Under the NLRA and RLA, 2 EMP. RTS. & EMP. POL’Y J. 317 (1998).
30 See 29 U.S.C. § 160(c); see also Pa. Greyhound Lines, 1 N.L.R.B. 51 (1935).
31 See, e.g., Consol. Edison v. NLRB, 305 U.S. 197, 236 (1938); Republic Steel Corp. v.
NLRB, 311 U.S. 7 (1940); Ex-Cell-O Corp., 185 N.L.R.B. 107, 108 (1990). Employees illegally
discharged for union activity, moreover, must mitigate their losses by finding alternative work.
See, e.g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198-200 (1941).
32 Weiler, supra note 2, at 1789. Several commentators have observed that the size of NLRA
damages awards often makes union avoidance strategies—most particularly the illegal discharge
of union advocates—economically rational. See, e.g., James Gray Pope, How American Workers
Lost the Right To Strike, and Other Tales, 103 MICH. L. REV. 518, 534 (2004); Gottesman, supra
note 2, at 63. As a result, much academic attention has been paid to enhancing the remedies
available to the NLRB, with a particular focus on punitive damages. See, e.g., id. at 75 (“[T]he
solution is punitive damages. . . .”); WILLIAM B. GOULD, AGENDA FOR REFORM 166 (1993)
(“Double or triple back-pay awards would reduce the incentive for employers to engage in
unlawful discriminatory dismissals.”); WEILER, supra note 29, at 247-48; Robert M. Worster III,
If It’s Hardly Worth Doing, It’s Hardly Worth Doing Right: How the NLRA’s Goals Are Defeated
Through Inadequate Remedies, 38 U. RICH. L. REV. 1073, 1092-94 (2004).
33 See 29 U.S.C. § 160(c).
34 See
69
NLRB
ANN.
REP.
264
tbl.23
(2004),
available
at
http://www.nlrb.gov/publications/reports/annual_reports.aspx. The Board, moreover, has no
authority to enforce its own orders—only a federal court of appeals has this power. See 29 U.S.C.
§ 160(e). Thus, an employee can expect to wait considerably longer than two years for an
enforceable order of reinstatement.
35 Morris, supra note 29, at 338. Again, academic observers have repeatedly proposed
changes to the NLRA regime that would increase the availability and use of preliminary
injunctions in order to correct this statutory failing. See, e.g., id. at 358; see also WEILER, supra
note 29, at 241. Section 10(j) of the NLRA does grant the Board authority to seek preliminary
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Finally, because the statute concentrates all enforcement power in
the NLRB and denies workers a private right of action, the Board’s
weak remedies and time consuming procedures are the only game in
town. In part a product of New Deal lawmakers’ preference for
administrative enforcement,36 and in part a response to the judiciary’s
record on labor rights across the 19th and early 20th centuries,37 the
NLRA contains no mechanism by which workers can enforce the
statutory provisions guaranteeing them free choice on matters of
organization and collective representation.38
The limitation on damages and the endemic delays that plague
Board proceedings, combined with the absence from the statutory
design of a private right of action for workers seeking to enforce the
law, have produced results that are predictable and well known. One
injunctive relief in cases of retaliatory discharge, a mechanism that could dramatically speed up
this process. See 29 U.S.C. § 160(j); see generally Morris, supra note 29, at 345-47; NLRB GC
Memorandum 98-10, Report on Utilization of § 10(j) Injunction Proceedings March 3, 1994
through March 2, 1998. While the Board formally possesses this power, however, it rarely
employs it. In fiscal year 2004, for example, the Board authorized the General Counsel to seek §
10(j) injunctions in just thirteen cases. See 69 NLRB ANN. REP. at 260 tbl.20. In fiscal year
2003, the Board authorized such action in seventeen cases, and in 2002 in sixteen. See NLRB,
Off. of Inspector General, Inspection Rep. No. OIG-INS-29-04-02: Section 10(j) Findings at 5
(on file with author).
36 See, e.g., James J. Brudney, The National Labor Relations Board in Comparative Context:
Isolated and Politicized: The NLRB’s Uncertain Future, 26 COMP. LAB. L. & POL’Y J. 221, 231
(2005).
37 See, e.g., William E. Forbath, The Shaping of the American Labor Movement, 102 HARV.
L. REV. 1109, 1209 (1989); CHRISTOPHER TOMLINS, THE STATE AND THE UNIONS: LABOR
RELATIONS, LAW, AND THE ORGANIZED LABOR MOVEMENT IN AMERICA, 1880-1960 (1985);
Estlund, supra note 2 at 1552. In his 1939 testimony before the House Labor Committee on
amendments that would have added a private right to seek judicial institution of an unfair labor
practice proceeding, CIO General Counsel Lee Pressman captured this sentiment, commenting
that “[i]n all litigation, and in every situation where labor has attempted to protect its rights in
court, it has found that, by and large, the judges were inclined to see things from the point of view
of the employers rather than the workers, and to make their decisions in those terms.” Hearings,
supra note 1, at 2546.
38 Consol. Edison v. NLRB, 305 U.S. 197 (1938). With the Taft-Hartley amendments to the
NLRA in 1947, Congress added a single private right of action to the statutory enforcement
scheme. Under 29 U.S.C. § 187, employers may sue in district court for damages sustained as the
result of a union’s violation of the statutory ban on secondary boycotts. Senator Taft, the author
of the amendment that added this private right of action, explained its necessity by pointing to the
weakness of traditional Board remedies and the delay that inhered in Board proceedings. 29
U.S.C. § 187(b). Taft described the Board’s ordinary cease-and-desist order as a “weak and
uncertain remedy,” and the Committee Reports on the amendment noted that “the delay involved
in setting [the Board’s] processes in motion could work a great hardship on victims of [a
secondary] boycott.” On the other hand, Taft explained, “the threat of a suit for damages is a
tremendous deterrent to the institution of secondary boycotts.” Private rights of action for
workers complaining of employer unfair labor practice, however, remain unavailable under the
NLRA. See Int’l Ass’n of Machinists v. Gonzales, 356 U.S. 617, 631 n.19 (1958) (citing 93
Cong. Rec. 4835-4838, 4844, 4847, 4858; Sen. Rep. No. 105 on S. 1126, Supp. Views, 80th
Cong. 1st Sess. 54-55). Professors Estlund and Brudney have suggested adding a private right of
action for enforcement of employer unfair labor practices. See Estlund, supra note 2, at 1554-58;
Brudney, supra note 36, at 233-34.
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recent study, for example, concludes that one in five workers who takes
an active role in an organizing campaign is illegally discharged for
doing so.39 And in cases decided in fiscal year 2005, the Board found
that more than 30,000 U.S. workers had suffered illegal retaliation for
exercising their NLRA-protected rights.40 In its report on the Employee
Free Choice Act, the House Committee on Education and Labor
summarized this way:
The numbers are staggering. Every 23 minutes, a worker is fired or
otherwise discriminated against because of his or her union activity.
According to NLRB Annual Reports between 1993 and 2003, an
average of 22,633 workers per year received back pay from their
employers. In 2005, this number hit 31,358. A recent study by the
Center for Economic and Policy Research found that, in 2005,
workers engaged in pro-union activism “faced almost a 20 percent
chance of being fired during a union-election campaign.”41
Kate Bronfenbrenner, moreover, has shown the correlation
between employers’ use of illegal tactics and the success rate of
organizing campaigns. In one study, when employers used no tactics
outlawed by the Act, the success rate of worker organizing efforts was
100%. When employers deployed up to four tactics made illegal by the
NLRA, however, the success-rate of campaigns dropped to 58%. And
when an employer used more than five illegal tactics, organizing efforts
succeeded just 36% of the time.42
In addition to its inability to deter or remedy coercive interference
with the organizing efforts of employees who are entitled to the Act’s
protection, the NLRA also excludes completely from its coverage
multiple groupings of workers who constitute an increasing share of the
U.S. labor force. First, no “supervisor” is entitled to labor law
protection, and the Board has defined “supervisor” with remarkable
39
40
See Schmitt & Zipperer, supra note 3.
See 70 NLRB ANN. REP. 115, 116 tbl.4 (2005). The Board reports that it ordered
employers to pay backpay to 31,358 workers in FY 2005.
41 H.R. REP. NO. 110-23, at 8 (2007) (internal citations omitted).
42 See Kate Bronfenbrenner, Uneasy Terrain: The Impact of Capital Mobility on Workers,
Wages, and Union Organizing, ILR Collection Research Studies and Reports 4643 (2000),
available at http://digitalcommons.ilr.cornell.edu/reports/3. On the other hand, Bronfenbrenner’s
research suggests that law may have the ability to affirmatively facilitate workers’ collective
action. She reports that in the rare instances when the discharge of a union activist is followed by
a rapid reinstatement of the activist, the success rate of organizing campaigns is higher than the
success rate in campaigns where no union activists were discharged. See id. at tbls.8, 9 (in this
sample, where no union activists were discharged, the win rate was 45%; where activists were
discharged and reinstated before the union election, the win rate was 58%). This finding, of
course, could also be explained by a selection effect: when an employer believes—correctly—that
the union is going to win an election, it discharges union supporters in an egregious enough
manner to generate an NLRB order of reinstatement. If this is the case—and the data do not
allow a determination—then the success rate after reinstatement may reflect the union’s predischarge chances of success more than the impact of the reinstatement order.
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breadth.43 This exclusion has particular relevance in an economy where
decision-making responsibility is increasingly dispersed among the
workforce. Inherent in almost all of the leading forms of modern work
design (including just-in-time production, “Total Quality Management,”
high-performance work systems, and competency based systems), for
example, is the devolution of managerial and supervisory discretion to
employees.44 Of course, the devolution of managerial discretion to
employees poses the distinct threat of converting a wide range of
employees into “supervisors,” and thereby pushing these workers
outside the scope of the NLRA.45
The Act also denies protection to a significant and growing number
of workers in the contingent labor force, a rapidly expanding low-wage
sector that is constituted in overwhelming numbers by women and
people of color. For example, despite the enormous growth of
temporary employment relationships,46 and despite the fact that these
“temporary” workers are often employed in long-term positions within a
single firm, the NLRB has foreclosed nearly all unionization options to
temporary workers.47 Like temporary employment, home care is one of
the fastest growing sectors of the U.S. labor market,48 and yet many—
43 Under the Act, a supervisor is an individual who has “authority, in the interest of the
employer, to hire, transfer, suspend . . . assign, reward, or discipline other employees, or
responsibly to direct them . . . if in connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use of independent judgment.” 29
U.S.C. § 152(11). In a recent series of decisions, the NLRB has decided that employees who are
involved in “responsibly direct[ing]” other employees (and using “independent judgment” to do
so) for as little as 10-15% of their total work time are supervisors and thus excluded from the Act.
Oakwood Healthcare, Inc., 348 N.L.R.B. 37 (2006).
44 See, e.g., Barenberg, supra note 5, at 759; STONE, supra note 2 at 105, 108.
45 Indeed, in a different doctrinal context, the NLRB itself made this observation: In 2001, the
Board held that when workers are organized into production teams and given responsibility to
make decisions on issues including production, quality, training, attendance, safety, maintenance,
and discipline, “the authority they exercise is comparable to that of the front-line supervisor.”
Crown Cork & Seal, 334 N.L.R.B. 699, 701 (2001).
46 Between January 1995 and December 2004, while total private employment in the United
States increased 14.2%, employment in temporary jobs increased from 1.7 million to 2.5 million,
or 42.9%. See Patrick Kilcoyne, BUREAU OF LABOR STATISTICS, OCCUPATIONS IN THE
TEMPORARY
HELP
SERVICES
INDUSTRY
9
(2004),
available
at
http://www.bls.gov/oes/2004/may/temp.pdf. By February of 2008, the Department of Labor
estimates that more than 2.3 million Americans, or 2% of the total private workforce, was
employed by temporary help agencies. See BUREAU OF LABOR STATISTICS, EMPLOYEES ON
NONFARM PAYROLLS BY INDUSTRY SECTOR AND SELECTED INDUSTRY DETAIL tbl.B-1 (2008),
available at http://www.bls.gov/news.release/empsit.t14.htm.
47 In Oakwood Care, the Board held that the NLRA prevents temporary workers from joining
with permanent workers at their place of employment in order to organize and bargain
collectively with the “user” employer (that is, with the employer to whom the temporary workers
are assigned by their temporary agency). See Oakwood Care Center, 343 N.L.R.B. 659 (2004).
Although the question was not presented in Oakwood Care, the Board’s reasoning strongly
suggests that temporary workers may not join with the other workers employed by their
temporary agency in order to organize and bargain collectively with that agency.
48 See U.S. Dep’t of Labor, WOMEN’S BUREAU, FACTS ON WORKING WOMEN (2003),
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perhaps one-third—of the nearly one and a half million homecare
workers in the United States are excluded from NLRA coverage by
virtue of the statute’s “domestic service” exemption.49 The statutory
exclusion of “independent contractors” removes from NLRA protection
more than 3 million individuals classified as independent contractors
who nonetheless perform services “for a single employer on whom they
are dependent for work.”50 Among those excluded from NLRA
protection by virtue of the independent contractor rule are most of the
nation’s growing contingent of home-based child care workers.51
Lastly, for all practical purposes the NLRA excludes from its protection
undocumented immigrant workers, another large and growing subset of
the U.S. labor force. Indeed, at last count, approximately seven million
undocumented immigrants were working in the United States,
accounting for nearly 5% of the private sector workforce.52 An
employer, however, may now discharge an undocumented employee in
retaliation for that employee’s collective activity and the Act requires
neither reinstatement nor an award of backpay.53
The effects of these exclusions are hard to quantify. One study
estimates that the expanding definition of “supervisor” removes eight
million workers from the Act’s protection.54 Taken together with the
available at http://www.dol.gov/wb/factsheets/hotjobs03.htm; U.S. Dep’t of Labor, 2004-2005
OCCUPATIONAL
OUTLOOK
HANDBOOK,
available
at
http://www.ocouha.com/cur/ooh030508_18.htm.
49 The Act excludes from its coverage any individual employed “in the domestic service of
any family or person at his home.” 29 U.S.C. § 152(3) (2000). Eighty-eight percent of these
workers are women, and forty-one percent are African American or Latino. See BUREAU OF
LABOR STATISTICS, U.S. DEP’T OF LABOR, 2005 HOUSEHOLD DATA ANNUAL AVERAGES tbl.11,
available at http://www.bls.gov/cps/cpsaat11.pdf (“Employed persons by detailed occupation,
sex, race, and Hispanic or Latino ethnicity.”)
50 Katherine V.W. Stone, Legal Protections for Atypical Employees: Employment Law for
Workers Without Workplaces and Employees without Employers, 27 BERKELEY J. EMP. LAB. L.
251, 279 (2006).
51 There are approximately 1.8 million of these workers. See DEBORAH CHALFIE, HELEN
BLANK & JOAN ENTMACHER, NATIONAL WOMEN’S LAW CTR., GETTING ORGANIZED:
UNIONIZING HOME-BASED CHILD CARE PROVIDERS 6 (2007) (citing CTR. FOR THE CHILD CARE
WORKFORCE & HUMAN SERVICES POLICY CTR., ESTIMATING THE SIZE AND COMPONENTS OF
THE U.S. CHILD CARE WORKFORCE AND CAREGIVING POPULATION: KEY FINDINGS FROM THE
CHILD CARE WORKFORCE ESTIMATE (PRELIMINARY REPORT) 17 (2002), available at
http://hspc.org/publications/pdf/ccw_May_2002.pdf). Ninety-four percent of the child-care
workforce in the United States is female, and more than 30% is African American and Latino.
See BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, 2005 HOUSEHOLD DATA ANNUAL
AVERAGES 4, tbl.11, available at http://www.bls.gov/cps/cpsaat11.pdf (“Employed persons by
detailed occupation, sex, race, and Hispanic or Latino ethnicity”).
52 See JEFFREY S. PASSEL, PEW HISPANIC CENTER, ESTIMATES OF THE SIZE AND
CHARACTERISTICS OF THE UNDOCUMENTED POPULATION 4 (2005), available at
http://pewhispanic.org/files/reports/44.pdf.
53 See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
54 See Ross Eisenbrey & Lawrence Mishel, Economic Policy Institute Issue Brief #225,
Supervisor in Name Only: Union Rights of Eight Million Workers at Stake in Labor Board Ruling
(2006), available at http://www.epinet.org/issuebriefs/225/ib225.pdf.
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approximately two and a half million temporary workers, three million
independent contractors, half a million home and child care workers,
and seven million undocumented immigrant workers, we know that at
least twenty and a half million U.S. workers in the labor force’s most
robust sectors are currently excluded from the scope of federal labor
law.55 The impact of these exclusions on law’s ability to facilitate
collective action, however, extends far beyond these twenty and a half
million workers. As the Supreme Court has observed, excluding a
subset of a given workforce from the purview of labor law makes it
more difficult for all of the employees in that workforce to organize and
act collectively.56 The NLRA’s exclusions accordingly undermine the
possibility for collective action among many millions of workers who,
although they are themselves covered by the Act, work alongside the
supervisors, temporary employees, and immigrant workers who do not
enjoy NLRA protection.
II. EMPLOYMENT LAW AS LABOR LAW
These failures and limitations amount to a significant blockage of
the traditional legal channel for collective action. Workers have
responded by forcing open alternative legal pathways, and in this Part, I
provide accounts of workplace campaigns in which workers rely not on
the NLRA but on the FLSA and Title VII to facilitate and protect their
efforts to organize and collectively secure workplace rights.57 These
practical developments, however, take place in the face of some
traditional skepticism regarding employment law’s congruity with
workers’ collective action.
Accordingly, before turning to the
descriptive accounts of employment law as labor law, I first outline the
traditional view of the tension between employment law’s “individual
rights” regime and labor law’s goal of facilitating worker organizing
and collective action.58
55 This figure does not include the approximately 750,000 agricultural workers, 7 million
federal, state, and local government employees, and 5.5 million employees of certain small
businesses also excluded from NLRA coverage. See GOV’T ACCOUNTABILITY OFFICE,
COLLECTIVE BARGAINING RIGHTS: INFORMATION ON THE NUMBER OF WORKERS WITH AND
BARGAINING
RIGHTS
13
(2002),
available
at
WITHOUT
http://www.gao.gov/new.items/d02835.pdf.
56 See, e.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892 (1984) (excluding undocumented
workers from NLRA protection would “erod[e] the unity of all the employees”)
57 A brief overview of the first account appears in Sachs, supra note 7, at 391-93.
58 Throughout the labor law literature, employment laws—including the FLSA and Title
VII—are labeled as “individual rights” or “individual employment rights” statutes. See, e.g.,
Clyde Summers, Effective Remedies for Employment Rights: Preliminary Guidelines and
Proposals, 141 U. PA. L. REV. 457 (1992); Brudney, supra note 2, at 1563; James J. Brudney, A
Famous Victory: Collective Bargaining Protections and the Statutory Aging Process, 74 N.C. L.
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A.
2701
Scholarly Skepticism
According to the conventional view, labor law and employment
law are dichotomous, and in a fundamental respect incompatible, modes
of intervention into workplace governance. In broad terms, labor law is
understood as the regime that “governs workers efforts to advance their
own shared interests through self-organization and collective protest,
pressure, negotiation and agreement with employers.”59 Employment
REV. 939, 1026-27 (1996); Richard A. Bales, The Discord Between Collective Bargaining and
Individual Employment Rights: Theoretical Origins and a Proposed Reconciliation, 77 B.U. L.
REV. 687, 688 (1997). The term is used in the labor literature to highlight what scholars
understand to be the distinct projects of labor and employment law, but within antidiscrimination
scholarship, classifying Title VII as an “individual rights” statute has a different set of meanings.
See, e.g., Balkin & Siegel, supra note 15, at 9.
At least since Owen Fiss published Groups and the Equal Protection Clause, antidiscrimination scholars have identified principles of “anticlassification” and “antisubordination”
within both constitutional and statutory proscriptions on discrimination. See Owen M. Fiss,
Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107 (1976). Because it presses the
view that antidiscrimination law is and should be committed to ensuring that individuals not be
classified on the basis of a forbidden category, the anticlassification tradition is often treated as
embracing an “individual rights” reading of the law. On the other hand, because of its
commitment to challenging group stratification and subordination, the antisubordination tradition
is credited with championing “group” rights. For this reason, referring to employment law—and
particularly Title VII—as an “individual rights” regime might appear an embrace of the
anticlassification tradition in antidiscrimination scholarship and a rejection of antisubordination
principles. I do not intend such a construction. Cf. Vicki Schultz, Antidiscrimination Law as
Disruption: The Emergence of a New Paradigm for Understanding and Addressing
Discrimination (2008) (unpublished manuscript, on file with author) (arguing that
antidiscrimination law is not reducible to the antisubordination versus anticlassification traditions
and tracing the emergence of a new approach that treats an institution’s process of creating race
and gender differences as central to what it means to discriminate).
Rather, I adopt the practice of naming employment law an “individual rights” regime
because it provides a useful shorthand for the ways scholars traditionally distinguish the sources
of workplace authority upon which employment and labor law rely. In particular, “individual
rights” offers a way to compare the mechanisms through which employment law and labor law
are understood to effect changes in substantive terms and conditions of work. Under the NLRA,
such changes are achieved when workers develop sufficient collective strength to demand them
through collective bargaining or other economic action. On the other hand, statutes like the
FLSA and Title VII intend law itself to compel employers to adopt particular substantive
workplace practices by granting rights to employees. Because these employment rights are
granted to—and enforceable by—workers irrespective of the extent of their collective
organization in the workplace, “individual rights” is a useful heuristic in the context of this
discussion of workplace law and scholarship.
59 Estlund, supra note 2, at 1527. Professor Corbett writes that “[l]abor law deals primarily
with the National Labor Relations Act . . . which protects the rights of employees to engage in
collective bargaining and other forms of collective action.” William R. Corbett, Waiting for the
Labor Law of the Twenty-First Century: Everything Old Is New Again, 23 BERKELEY J. EMP. &
LAB. L. 259 (2002). See also, e.g., Estlund, supra note 26, at 789 (“labor law—by which I mean
the law of collective labor relations, of unions, concerted activity, and collective bargaining”);
Katherine V.W. Stone, The Legacy of Industrial Pluralism: The Tension Between Individual
Employment Rights and the New Deal Collective Bargaining System, 59 U. CHI. L. REV. 575
(“[T]he New Deal labor laws . . . were intended to create collective rights for workers and to
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law, on the other hand, denotes the broad range of federal and state
statutes (and case law) that, operating independently of any
collectivization in the workplace, protect the rights of workers to
minimum standards60 and fair treatment.61 As Professor Brudney puts
it, employment law offers “rights and protections to employees on an
individual—and individually enforceable—basis.”62
Scholars,
moreover, typically understand employment law’s protection of
“individual rights” as standing in tension with the NLRA’s project of
facilitating collective action. Several strands of argument underlie this
view.
The first account is an historical one, and begins in the late 19th
and early 20th centuries when courts repeatedly enjoined union activity
and struck down union-protective legislation in the name of protecting
workers’ (and employers’) right to contract. The liberty of contract
principles underlying these decisions were grounded in the view that an
individual worker’s ownership of his labor—and the individual’s
corresponding freedom to dispose of that labor unhindered by
interference from the collective activity of other workers—lay at the
heart of the freedoms protected by both the common law and the
constitution.63
William Forbath thus labels this era’s labor
empower organized labor . . . .”); Robert Brousseau, Toward a Theory of Rights for the
Employment Relation, 56 WASH. L. REV. 1, 12 (1980) (“[T]he law of labor relations is designedly
and necessarily anti-individualistic. The collective interest is made paramount . . . .”).
60 See, e.g., Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (2000); Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (2000).
61 See, e.g., Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2000); Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213 (2000); Age Discrimination in Employment Act, 29
U.S.C. §§ 621-634. Estlund opens a recent article by dividing the “burgeoning body of
employment law,” Estlund supra note 13, at 328, into two categories: employee rights
enforceable through litigation (exemplified by the civil rights laws) and minimum workplace
standards enforced by regulatory agencies (exemplified by wage and hour laws and OSHA). See
id. at 321. But she later notes that this division “turns out to be somewhat artificial,” given the
fact that “employee rights, some of them backed with private rights of action, are embedded
within many of the labor standards regimes . . . .” Id. at 376.
62 Brudney, supra note 2, at 1570.
63 See, e.g., William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the
Gilded Age, 1985 WIS. L. REV. 767, 799-800 (1985). Classic examples include Vegelahn v.
Guntner, 44 N.E. 1077 (1896) (enjoining workers’ picket on ground that it interfered with
employees’ constitutionally-protected right to form employment contracts “at such prices as may
be mutually agreed upon”), Plant v. Woods, 57 N.E. 1011, 1015 (1900) (enjoining union activity
on ground that “[t]he necessity that the plaintiffs should join this association is not so great . . . as
compared with the right of the plaintiffs to be free from molestation”), State ex rel. Zillmer v.
Kreutzberg, 90 N.W. 1098, 1105 (1902) (invalidating state statute that protected union members
from discharge based on their union membership on ground that “the legislation clearly and
beyond doubt invades the natural liberty of the individual”), and Adair v. United States, 208 U.S.
161 (1908) (invalidating, on 5th Amendment grounds, federal statute that made it illegal for an
employer to discharge an employee because of the employee’s union membership). The extent to
which courts’ stated concern for workers’ individual liberty of contract was a genuine concern is
certainly the subject of some dispute. See, e.g., Robert W. Gordon, Britton v. Turner: A Signpost
of the Crooked Road to “Freedom” in the Employment Contract, CONTRACT STORIES 23-24
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jurisprudence a “relentlessly individualistic” one.64 The end of the
Lochner era saw the decline of judicial invalidation of union activity—
and union protective legislation—in the name of individual workers’
contract rights. But this heyday of collective action was short lived, and
historians correlate more recent judicial and legislative deference to
individual rights with a deterioration in the protection available to
workers’ collective action.65 Thus, for example, Nelson Lichtenstein
states bluntly that in the 1960s and ’70s the “discourse of ‘rights’” had a
“powerfully corrosive impact on the legitimacy of the union idea.”66
The second account of the tension between individual employment
rights and collective action is essentially a cognitive one, and posits that
government provision of substantive rights to workers has either an
individuating effect or a pacifying one. That is, by offering rights to
employees on an “individual and individually enforceable basis,”67
employment law encourages workers to view themselves as, first,
individuals who are second, dependent upon state intervention to
achieve workplace improvements. Professor Estlund, for example,
contrasts employment law’s regulatory mode of workplace governance
with the NLRA model by writing that employment law “renders
(Douglas Baird ed., 2007).
64 Forbath, supra note 37, at 1209; see also Forbath, supra note 63, at 799-800. Historian
John Orth reports that in A.V. Dicey’s 1905 Lectures on the Relation Between Law and Public
Opinion in England during the Nineteenth Century, the “zeal for freedom of contract” was used
as an “index of society’s commitment to individualism.” John V. Orth, Contract and the
Common Law, in THE STATE AND FREEDOM OF CONTRACT 44 (Harry N. Scheiber ed., 1998).
65 See generally Reuel E. Schiller, From Group Rights to Individual Liberties: Post-War Law,
Liberalism, and the Waning of Union Strength, 20 BERKELEY J. EMP. & LAB. L. 1, 4 (1999).
Historian Melvyn Dubofsky argues that, “just at the moment that the American state chose
through the Wagner Act to legitimate the collective power of workers, employers and their
political advocates reinvigorated the concept of constitutionally protected individual rights as a
restraint on the collective power of working people.” Melvyn Dubofsky, A Fatal Flaw:
Individual Rights and the Wagner Act, Proceedings of the 49th Annual Meeting of the Industrial
Relations Research Association 378 (1996).
66 NELSON LICHTENSTEIN, STATE OF THE UNION: A CENTURY OF AMERICAN LABOR 141
(2002). Professor Schiller concludes that by the early 1960s, “[c]ourts, agencies, and Congress
sought to protect the rights of individual workers, even if it meant undermining the strength of
labor unions.” Schiller, supra note 65, at 4. For these writers, the passage of the LandrumGriffin Act in 1959 was the seminal legislative development in the shift back to individual
employee rights and the resultant “erosion of the union idea.” LICHTENSTEIN, supra note 66 at
164-65. Dubofsky, for example, writes that congressional debate over Landrum-Griffin reveals
“how effectively critics of the NLRB used the rhetoric of individualism, rights and free choice.”
Dubofsky, supra note 65, at 377. According to Schiller, Landrum-Griffin was “[p]erhaps the
most obvious manifestation of the new individual rights-based assumptions about policy-making
in labor law.” Schiller, supra note 65, at 58. And Lichtenstein similarly argues that LandrumGriffin’s bill of rights for union members was the result of a successful exploitation of an
individual rights discourse by anti-union conservatives. Thus, Lichtenstein writes that
“[e]mployer anti-unionism became increasingly oriented toward the ostensible protection of the
individual rights of workers,” and “encapsulated an essentially right-wing understanding of union
dynamics.” LICHTENSTEIN, supra note 66, at 165-66, 164.
67 Brudney, supra note 58, at 1026-27.
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employees the passive beneficiaries of the government’s protection.”68
Indeed, Estlund concludes that the rise of employment law
“foreshadowed the eclipse of the collective bargaining model—indeed,
of the centrality of collective action altogether.”69
Professor Brudney adds a third account by arguing that increasing
Congressional and judicial protection for individual employment rights
from the 1960s through the 1980s produced a “transformation of the
legal culture” in which group action was “devalued.”70 As he writes,
“since 1963 [Congress] has enacted a series of workplace regulatory
statutes that have effectively subordinated the role of group action by
making individual rights preeminent.”71 By privileging individual
employment rights, that is, legal institutional actors undermined
workers’ ability to act collectively.
In a fourth account, Professors Katherine Stone and Richard Bales
point to doctrinal conflict between the two regimes that compromises
collective organization and action. In The Tension Between Individual
Employment Rights and the New Deal Collective Bargaining System,
Stone concludes that “the emerging regime of employee rights
represents not a complement to or an embellishment of the regime of
collective rights, but rather its replacement.”72 The problem, Stone
argues, is that federal labor preemption doctrine—which requires
workers to arbitrate rather than litigate any workplace dispute arguably
covered by a collective bargaining agreement—has deprived union
workers of many of the employment rights granted by state law.73
68 Estlund, supra note 13, at 333.
Professor Weiler similarly argues that under an
employment-law regime employees are “[a]t best . . . passive beneficiaries of these governmental
efforts on their behalf.” WEILER, supra note 29, at 30. This line of argument derives perhaps
originally from writers associated with the Critical Legal Studies movement. See, e.g., Peter
Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62
TEX. L. REV. 1563 (1984); MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 269 (1987).
69 Estlund, supra note 13, at 329.
70 Brudney, supra note 2, at 1563-64.
71 Id. at 1564; see also id. at 1571 (“At some point during this legislative barrage, it became
clear that Congress viewed government regulation founded on individual employee rights, rather
than collective bargaining between private entities, as the primary mechanism for ordering
employment relations and redistributing economic resources.”); Brudney, supra note 58, at 102627.
72 Stone, supra note 59, at 593; see also id. at 584 (“The past decade has witnessed a shift
from a legal system that protects collective employee rights to one that protects individual
employment rights.”).
73 This dynamic results from the interplay between individual employment protections and
labor law, particularly the doctrine of § 301 preemption. Section 301 of the Labor Management
Relations Act gives federal courts jurisdiction to enforce collective bargaining agreements
between unions and employers, 29 U.S.C. § 185(a) (2000), and the Supreme Court has inferred
from this grant of federal jurisdiction a fairly broad preemption doctrine according to which all
claims for breach of the collective bargaining agreement must be decided by the arbitration
provision in the contract, and not by a court. See, e.g., Local 174 Teamsters v. Lucas Flour Co.,
369 U.S. 95 (1962); Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968); Allis Chalmers
Corp. v. Lueck, 471 U.S. 202 (1985). There has been a general exception for discrimination
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Writing five years after Stone, Richard Bales expanded on her thesis by
arguing that federal labor preemption in combination with the “federal
arbitrability doctrine” denies unionized employees not only the statelaw protections that Stone discusses, but also the individual workplace
rights provided by federal statutes.74 For both authors, the result is that
broad statutory protection for individual worker rights places unionized
employees at a comparative disadvantage.75 As Bales writes:
Paradoxically, nonunion employees frequently have more workplace
rights than their unionized counterparts. This penalty on union
membership has weakened unions and their bargaining power, and
has made the two models of workplace governance both practically
and theoretically incompatible.76
Recently, some scholars have begun describing ways in which the
boundaries between labor and employment law are fluid, and thus
calling into question this conventional view. Professor Estlund, for
example, offers a sophisticated account of employment law’s potential
to contribute indirectly to employee representation within the
governance of the firm. Estlund suggests that employment law damage
awards might be used to pressure firms to grant workers a right to
representation within a system of monitored self-regulation.77 For
Estlund, that is, employment law remedies might be traded for a form
claims. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52, 59-60 (1974). Because many
of the individual employment rights granted by state law (for example, rules prohibiting unjust
dismissal) are rights granted by (or implicated by) collective bargaining agreements, § 301
preemption often forces workers covered by collective bargaining agreements to arbitrate rights
that non-union workers may enforce in court. And, crucially, arbitrators cannot deliver the types
of remedies—punitive damages, for example—that state courts can award. Stone concludes her
article by presenting two alternative legal regimes in which it would be possible to “harmonize
individual and collective rights.” Stone, supra note 59, at 638-44.
74 See Bales, supra note 58. According to the federal arbitrability doctrine, a pre-dispute
arbitration clause is enforceable even as to federal statutory rights, and precludes employees from
seeking redress in court. See id. at 691. The doctrine is grounded in the Federal Arbitration Act,
codified at 9 U.S.C. §§ 1-16 (2005). Thus, according to Bales, § 301 and the federal arbitrability
doctrine “effectively withdraw[] from unionized employees many of the individual employment
rights that statutes . . . ostensibly confer on all employees.” Id. at 690; see also id. at 692
(“Together, the § 301 preemption doctrine and the FAA arbitrability doctrine eviscerate an
overwhelming proportion of unionized employees’ individual employment rights.”)
75 Since the Stone’s and Bales’ articles, the Supreme Court has held that a general arbitration
clause in a collective bargaining agreement is not sufficient to allow a union to waive employees’
right to a federal judicial forum for statutory discrimination claims. See Wright v. Universal
Maritime Serv. Corp., 525 U.S. 70, 82 (1998). But the Court explicitly left open the question of
whether a clear and unmistakable waiver of such individual employment rights in a collective
agreement would be enforceable. See id. At least one federal court of appeals has held that such
a clause in a collective bargaining agreement, waiving claims under the Americans with
Disabilities Act and the Family and Medical Leave Act, is enforceable. See Singletary v.
Enersys, Inc., 2003 U.S. App. LEXIS 2334 (4th Cir. 2003) (unpublished opinion). The Second
Circuit has reached the opposite conclusion. See Rogers v. N.Y. Univ., 220 F.3d 73, 75 (2d Cir.
2000).
76 Bales, supra note 58, at 690.
77 See Estlund, supra note 13, at 390, 393-94.
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of collective representation.78 Nonetheless, in Estlund’s model, workers’
collective action is not the mechanism through which these workplace
reforms are achieved, and as such Estlund does not address employment
law’s ability to facilitate such collective action.
Richard Michael Fischl argues more broadly that in contemporary
practice, labor and employment law impact work in a variety of
intersecting—and boundary crossing—ways.79 He observes, crucially,
that employment statutes can be used to protect some types of
workplace protests,80 a dynamic that is central to the accounts presented
here. Fischl also illustrates how unions are using a wide range of
tactics as part of multi-faceted and innovative organizing campaigns
designed to induce employers to agree to, e.g., card-check
recognition procedures.81 These tactics include publicity efforts,
community support, and what Fischl aptly describes as the “strategic
deployment of law”—including employment law.82
For Fischl, employment law is deployed “strategically” by unions
toward two ends. The first is to “generat[e] additional pressures on the
employer through publicity and threatened liability.”83 Second, Fischl
shows how employment law claims can be deployed strategically to
“demonstrate[] the utility of union representation to the employees in
question.”84 That is, Fischl argues, because of the hurdles involved in
filing employment lawsuits (or even NLRB charges), a union that can
78 She thus writes that “Employment law . . . is in many ways a poor substitute for the system
of self-governance envisioned by the labor laws . . . . But the solution to the representation gap
may lie partly within employment law rather than solely within the traditional realm of labor
law.” Id. at 402
79 See Richard Michael Fischl, Rethinking the Tripartite Division of American Work Law, 28
BERKELEY J. EMP. & LAB. L. 163 (2007). Fischl describes the dominant model as consisting of
three branches: “labor law,” “employment law,” and “employment discrimination.” Id. at 165.
80 See id. at 175-79.
81 In a card-check recognition procedure, a union’s representative status is determined by a
showing of authorization cards signed by employees, rather than through a secret ballot election.
82 Fischl, supra note 79, at 210.
83 Id. at 212. Thus, in an effort to convince the University of Miami to agree to a card-check
process, for example, the Service Employees International Union conducted a “corporate
campaign,” held press conferences, coordinated religious services, and assisted workers in the
filing of a range of legal actions (including NLRB charges, OSHA complaints, and charges that
the University violated a local living wage ordinance). The legal charges, like the media and
community actions, gave the unions added leverage in their efforts to secure a card-check
agreement from the University. Id. at 213-14. Fischl also cites other, similar campaigns,
including an SEIU janitorial organizing effort in which the union “assisted the workers in
bringing [a wage and hour] suit ‘as part of a strategy to pressure contractors to improve wages, to
publicize bad working conditions, and to advance its efforts to unionize tens of thousands of
janitors.’” Id. at 212 n.168, quoting Steven Greenhouse, Among Janitors, Labor Violations Go
with the Job, N.Y. TIMES, July 13, 2005, at A1. For another excellent case study in which unions
use FLSA suits in this manner, see Ruth Milkman & Kent Wong, Organizing Immigrant
Workers: Case Studies from Southern California 120-21, in REKINDLING THE MOVEMENT:
LABOR’S QUEST FOR RELEVANCE IN THE 21ST CENTURY (Lowell Turner, Harry C. Katz &
Richard W. Hurd eds., 2001).
84 Fischl, supra note 79, at 212.
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assist workers in successfully prosecuting such legal claims will be
viewed as more useful by those workers.85
This scholarship makes a major contribution to our understanding
of the ways in which the boundaries between employment law and labor
law are artificial. In these accounts, however, employment law serves
either as another arrow in the quiver available to workers and unions
seeking to pressure employers to accept their demands, or as a means
for the union to prove its mettle to employees. The accounts, therefore,
do not allow us to examine the ways in which employment law can
directly foster collective action.
In the accounts that follow,
employment law plays this role: it functions as the locus of the workers’
collective activity and as the legal mechanism which protects that
collective activity from coercive attempts to curtail it.86 In the
following accounts, that is, employment law is the very legal
architecture for workers’ collective action, and in this sense assumes the
role conventionally played by labor law.
B.
Practical Promise
Despite traditional skepticism regarding the congruity between
individual rights and collective action, workers are relying on
employment statutes to facilitate and protect their organizing efforts. In
this section, I describe two examples of employment law functioning in
this way. In the first example, garment workers who had long worked
for illegally low wages engage in a collective campaign to secure better
pay. The federal statutory entitlement to overtime pay—“el derecho al
sobretiempo”—becomes the galvanizing theme for the workers’
organizational efforts. When the leader of the collective campaign is
fired for her organizing work, moreover, a federal district judge acting
pursuant to the FLSA issues a preliminary injunction ordering her
reinstatement. The speed of the injunction—which comes nine days
after the discharge and thus nearly two years faster than an NLRB order
might have issued—constitutes a significant and potentially dispositive
improvement over the NLRA. In the second example, construction
workers attempt to remedy viciously discriminatory workplaces
practices through collective action. When the employer reduces the
wages of, and then discharges, many of those employees active in the
85
86
See id. at 211-12.
The first account illustrates the FLSA’s capacity to play both of these roles. The second
account reveals Title VII’s potential to fulfill the second of these roles: to offer a robust remedy
for coercive employer interference with workers’ collective activity. While it is also clear that
combating national origin discrimination was the locus of organizational activity in the second
account, it is less clear from the sources available the extent to which Title VII’s proscriptions on
such discrimination were explicitly invoked at the outset of the organizational efforts.
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organizing campaign, the NLRB does essentially nothing: the Board’s
sole remedial order is one requiring the employer to post a notice
informing employees—some of whom have been fired and not
reinstated—that they have the right to act collectively. When the
workers turn to Title VII as the shield for their collective activity,
however, the employer is ordered to pay three-quarters of a million
dollars in damages.87
1.
Collective Action under the Fair Labor Standards Act
Bushwick, Brooklyn is home to hundreds of garment factories and
hundreds of thousands of low-wage immigrant workers. It is also home
to a workers’ association named Make the Road by Walking (MRBW),
whose organizers and lawyers assist Bushwick workers in their
campaigns to collectively secure rights at work.88 While a great
majority of garment workers who are members of MRBW earn below
minimum wage and close to 100% of these garment workers are not
paid overtime, the rate of unionization among garment-worker members
of MRBW is approximately 0%.89 Lacking union representation and
facing rampant violations of their rights at work, garment workers in
Bushwick and their lawyers have been forced to develop alternative
models of organizing and, concomitantly, novel legal mechanisms for
protecting their organizing efforts.90
MRBW and its members have abandoned the NLRA and rely
instead on the FLSA—more particularly, on that statute’s antiretaliation clause—to facilitate and protect their collective efforts to
improve wages and working conditions. The FLSA statutorily
guarantees all covered employees the right to a minimum wage,
87 It is worth stressing at the outset that in order for employment law to function in these
ways—to facilitate and protect collective action—it must be deployed consciously for this
purpose. Traditional employment law litigation, even litigation involving a class of plaintiffs,
will not naturally or of its own accord perform the roles highlighted below. Lawyers, organizers,
and workers themselves must intentionally turn to employment law as a substitute form of labor
law if employment law is to operate in this capacity.
88 The name derives from a poem by Antonio Machado, which became the title of a book on
popular education, see Myles Horton & Paulo Freire, WE MAKE THE ROAD BY WALKING (1990),
and later the title of an influential law review article, see Jennifer Gordon, We Make the Road by
Walking: Immigrant Workers, The Workplace Project, and the Struggle for Social Change, 30
HARV. C.R.-C.L. L. REV. 407 (1995). The author of this Article worked as an attorney at MRBW
from September 1999 through June 2002.
89 Telephone Interview with Andrew Friedman, Co-Director, Make the Road by Walking
(Aug. 12, 2005).
90 See, e.g., Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and
Organizing, 48 UCLA L. REV 443, 448, 496 (2001); Chisun Lee, Sewing Up Bushwick, VILLAGE
VOICE, Mar. 7-13, 2001, at 24.
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currently $5.85 per hour,91 and requires that employees receive one and
one-half times their regular rate of pay, whatever that regular rate is,
when they work more than forty hours in a week.92 The Act prohibits
retaliation against employees who seek to enforce these rights, provides
a range of remedies for workers who suffer such retaliation, and is
enforceable by the Department of Labor (DOL) or through private rights
of action.93
MRBW is, in many ways, an example of what Professor Stone
terms a “citizen union”—a “geographically based organization” that
engages workers across a given locale in organizing efforts on behalf of
its members, wherever those members work.94 In Stone’s model,
citizen unions exert pressure on local corporations to comply with
demands regarding, e.g., violations of wage and hour laws, “through
publicity campaigns, informational picketing, and shaming in the local
press.”95 Citizen unions also engage in efforts to combat substandard
wages by “report[ing] violations of wage and hour laws to the
appropriate governmental authorities,”96 and by providing legal
assistance to individuals bringing lawsuits “to enforce laws regarding
minimum wages.”97
MRBW, however, pushes beyond Stone’s model of citizen
unionism by using the FLSA, not simply as the legal vehicle for
securing unpaid wages, but also as the legal mechanism to facilitate and
protect its members’ collective efforts to organize and secure those
rights. MRBW’s use of employment law as labor law is illustrated by
the campaign for unpaid overtime wages at a Bushwick garment factory
named Danmar Finishing.
a.
Danmar Finishing
Maria Elena Arriaga immigrated to the United States from Mexico,
91
92
29 U.S.C. § 206 (a)(1)(A) (2000).
See 29 U.S.C. § 207. The statute is, accordingly, of particular relevance to garment
workers, who work in an industry defined by violations of the wage and hour laws. See Press
Release, U.S. Dep’t of Labor, Office of Public Affairs, U.S. Department of Labor Announces
Latest Los Angeles Garment Survey Results (May 27, 1998), available at
http://www.dol.gov/opa/media/press/opa/archive/opa98225.htm. Employers who violate the
minimum wage and overtime provisions of the FLSA are liable for the unpaid wages, plus an
equal amount as liquidated damages. See 29 U.S.C. § 216(b).
93 See 29 U.S.C. §§ 215(a)(3), 216(b).
94 See STONE, supra note 2, at 227-29.
95 Id. at 230.
96 Id. at 229.
97 Id. at 229. Critically, “[n]one of the activities of citizen unionism . . . depend upon
National Labor Relations Board (NLRB) certification [as] a majority representative” in a
particular workplace. Id. at 231.
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and began working as a sewing machine operator at Danmar Finishing
in 1992.98 During the entire course of Arriaga’s employment, she and at
least 175 of her coworkers worked in excess of forty hours per week but
were never paid time-and-one-half their regular rate of pay, as required
by the FLSA.99 Prior to the campaign described below, however, the
Danmar employees did not protest these conditions.
In March 2000, Arriaga became a member of MRBW and
participated in a workers’ rights training with other Bushwick workers.
It was during this training that Arriaga first learned that federal law
granted her the right to overtime pay, and first recognized that the
wages she and her coworkers earned at Danmar were illegally low.100
Arriaga, with MRBW’s assistance, then began a campaign to educate
her coworkers about their wage and hour rights and Danmar’s
continuing violation of them. Arriaga also encouraged her coworkers to
file complaints with the U.S. Department of Labor (DOL) concerning
Danmar’s wage and hour practices.101
The Danmar workers initially met with little success, and received
no assistance from the DOL. In fact, in August 2001, Arriaga and her
coworkers received letters from the DOL stating that they were indeed
owed back wages, but that the Department was “not authorized to order
or require an employer to pay back wages.”102 In response, the Danmar
employees initiated what was in essence a dual organizing effort: they
sought not only to force Danmar into compliance with the FLSA but
also to induce the DOL to play its part in enforcing the federal law on
their behalf. The workers accordingly reached out to local media to
publicize the DOL’s lackluster response to their complaints, and
convinced Bushwick’s U.S. congressional representative to pressure the
98 Declaration Pursuant to 28 U.S.C. § 1746 of Maria Arriaga at ¶ 1, Chao v. Danmar
Finishing Corp, 02-CV-3492 (E.D.N.Y. June 17, 2002) [hereinafter Arriaga Declaration] (on file
with the author). See also Complaint at 2-3, Chao v. Danmar Finishing Corp, 02-CV-3492
(E.D.N.Y. June 17, 2002) at 2-3 [hereinafter Retaliation Complaint] (on file with the author). The
account that follows is drawn primarily from Arriaga’s declaration and other papers filed in the
Danmar Finishing case, along with news accounts of the campaign that appeared in English and
Spanish language newspapers.
99 See Arriaga Declaration, supra note 98, at ¶¶ 2, 4; Complaint at 6, Exhibit 8, Chao v.
Danmar Finishing Corp, 02-CV-2586 (E.D.N.Y. May 1, 2002) [hereinafter Overtime Complaint]
(on file with the author).
100 See Arriaga Declaration, supra note 98, at ¶ 3; see also Maria Elena Arriaga, $5.15 Is Not
Enough (available at www.515isnotenough.net/workerprofiles.pdf).
101 See Retaliation Complaint, supra note 98, at 3-4; Bob Port, Shakira Blasts Labor Abuses,
N.Y. DAILY NEWS, Apr. 30, 2002, at 3. Arriaga thus became a “conduit” through which her
coworkers asserted their wage and hour rights. Bob Port, Fired Worker Rips Feds, N.Y. DAILY
NEWS, Apr. 26, 2002, at 5.
102 See Steven Greenhouse, U.S. Sues a Sweater Factory After a Pop Singer Assails It, N.Y.
TIMES, May 2, 2002, at B1; see also Arriaga Declaration, supra note 98, at ¶ 5 (“In August 2001,
I received a letter from the United States Department of Labor (DOL) informing me that the
factory had been violating my right to overtime pay. The letter stated that I was owed $4,276.87
in lost wages, but that I had to contact a private attorney if I wanted to recover the wages.”).
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DOL to act.103
By January 2002, responding to this escalating pressure, the DOL
sent wage and hour investigators to Danmar who interviewed workers
about the factory’s wage and hour practices.104 Arriaga was interviewed
by a DOL investigator for approximately ten minutes while she was
working at her sewing machine, with her employer standing close by.105
Arriaga told the inspector that she worked more than forty hours per
week but did not receive overtime pay.106 The week after the DOL
inspection took place, Danmar managers asked all employees to sign a
form stating that “[a]s of today, I have received all my weekly salary,
plus overtime, that I am entitled to because of my job.”107 Arriaga, and
approximately twelve of her coworkers, refused to sign.108
According to Arriaga, retaliation for participation in the wage and
hour campaign began almost immediately: “I noticed that [the] . . .
bosses at the . . . factory . . . began treating me worse than they had
treated me before . . . by yelling at me, calling me names, acting rude
and disrespectful to me . . . .”109 Each of the Danmar employees who
refused to sign the statement regarding overtime payments had their
wages reduced.110 Arriaga, for example, was demoted from an hourly
employee to a piece-rate employee (paid according to how many
garments she was able to sew each hour) resulting in a $50 to $150 per
week wage cut. In Arriaga’s words, “The bosses . . . told me that
because I did not sign their form I would be switched from my hourly
rate . . . to piece rate starting the next week. . . . My weekly paycheck
dropped from approximately $320 per week to [between] $170 [and]
$270 per week.”111
With the DOL investigation continuing, Arriaga and her coworkers
(the group of Danmar employees who refused to sign the statement
suggesting they were owed no back wages) began planning collective
103 See Arriaga Declaration, supra note 98, at ¶ 6; see also Melissa Grace, Feds Ripped in
Wage Case, N.Y. DAILY NEWS, Mar. 22, 2002, at Suburban 1; see also Press Release, News from
Congresswoman Nydia M. Velazquez, Velazquez Demands Worker Protection from Sweatshop
Abuses (Mar. 22, 2002) (on file with author).
104 Arriaga Declaration, supra note 98, at ¶ 8.
105 Id. at ¶¶ 8-9 (“A female DOL investigator came to my machine where I was working, and
began asking me questions about my wages and hours. I answered her questions, and spoke to
her at length. . . . My boss . . . was standing about ten feet from me . . . .”)
106 Id. at ¶ 9.
107 Id. at ¶ 12.
108 Id. at ¶ 13; Jason Begay, Factory Defies Order To Rehire Worker Fired in Overtime
Inquiry, N.Y. TIMES, Aug. 2, 2002, at B3. The list of the employees who refused to sign the
statement is available at Consent Judgment at Exhibit B, Chao v. Danmar Finishing Corp, 02-CV2586 (E.D.N.Y. Dec. 17, 2003).
109 Arriaga Declaration, supra note 98, at ¶ 11.
110 See Bob Port, Feds Hit B’klyn Sweatshop with New Suit, N.Y. DAILY NEWS, June 20,
2002, at 30.
111 See Arriaga Declaration, supra note 98, at ¶¶ 14-15.
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action to demand payment from their employer. The statutory right to
overtime was both the rallying point and the central demand of the
workers’ efforts. On March 22, the Danmar workers, along with other
members of MRBW, staged a demonstration outside the factory.
Workers picketed the factory entrance carrying placards that read, in
Spanish, “tenemos el derecho a sobretiempo,” or “we have the right to
overtime pay.”112 Congresswoman Nydia Velazquez joined the workers
as they picketed and called on Danmar management to comply with the
FLSA’s overtime requirements.113
Four days after this first public demonstration by the Danmar
workers, a DOL investigator named Maria Rosado telephoned Arriaga
and asked whether Rosada could speak with Arriaga’s employers about
the retaliatory reduction in pay. Arriaga agreed to have Rosado speak to
Danmar management on her behalf.114 The next day, March 27, Arriaga
was fired.115 As Arriaga stated:
[R]ight before I left work, [manager] Don Carlos angrily yelled at
me at the top of his voice. He shouted at me so everyone in the
factory could hear him that, “Here in the factory, I am the boss.
There is no law that can tell me what I have to do in my factory.” . . .
He said that I was “stupid,” and “a piece of trash.” He told me I was
fired and that I should go home.116
When MRBW apprised the DOL of Arriaga’s discharge, the DOL
informally arranged for Arriaga to return to work at Danmar.117 But
when she returned to work, Arriaga was given a sewing machine that
didn’t function properly, and—still being paid at piece rate—the result
was dramatically diminished wages.118 On April 13, Arriaga reported
for work at 8 a.m. but was given no garments to sew. As Arriaga
describes the developments:
I remained sitting at my machine. [Manager] Mika Jankovic came
up to me and in a loud and disrespectful voice yelled at me to work.
I asked him how could I work if I had no garments to sew. He
continued screaming at me. A short while later he returned with
some garments for me to sew. I began working on them but the
needle on my machine was defective. I requested new needles from
112 See Denuncian Abusos a Inmigrantes [Denouncing Abuse of Immigrants], EL DIARIO, Mar.
23, 2002, at 1.
113 Id. (“A group of workers from Danmar Finishing protested yesterday against abuses they
assert the company committed. . . . A number of Danmar employees allege that they are owed
wages by the company. . . . The demonstration took place with the support of Congresswoman
Nydia M. Velazquez and members of the organization Make the Road by Walking.”).
114 See Arriaga Declaration, supra note 98, at ¶ 17.
115 See id. at ¶ 18.
116 Id.
117 See id. at ¶ 21.
118 See id. (“Because the bosses did not give me much work to do, and made me work at a
broken sewing machine, my piece rate wages were greatly reduced.”).
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Mika Jankovic. He told me that if I could not work I should go
home. . . . Mika Jankovic yelled at me, “I told you to go home. I am
not going to give you more work. Go home.” He told me that I was
fired.119
At this point, and again in response to escalating pressure from the
Danmar employees, the media, and elected officials, the DOL filed suit
under § 207 of the FLSA, seeking to recover unpaid overtime wages for
175 Danmar employees.120 And in response to Arriaga’s second
discharge, the Danmar workers continued to organize, holding multiple
demonstrations outside of the factory with Arriaga “le[ading] the
revolt.”121 On May 2, additional workers joined the campaign and
picketed Danmar, protesting Arriaga’s firing and demanding
compliance with overtime laws.122 On May 10, Arriaga and her
coworkers were joined at another demonstration outside the factory by
New York Senator Charles Schumer.123
With protests outside the Danmar factory continuing, Arriaga and
her coworkers added a new element to their collective campaign.
Following Arriaga’s second discharge from the factory, the workers
learned that a clothing line sewn at Danmar was promoted by a popular
Columbian singer-songwriter, Shakira.124 The Danmar workers thus
took their campaign for overtime rights to Shakira’s next public
appearance in New York, and staged a rally at Rockefeller Center
during Shakira’s performance on a segment of NBC’s “Today” show.125
119
120
Id. at ¶¶ 23-24.
See Overtime Complaint, supra note 99, at 5-7, Exhibit A; Press Release, News from
Congresswoman Nydia M. Velazquez, Labor Department Sues Garment Shop (May 1, 2002),
available at http://www.house.gov/velazquez/pressreleases/2002/PR050102.htm (“[T]his
[lawsuit] comes after months and months of pressure from local groups, community leaders, and
others.”).
121 See Port, supra note 101.
122 See Maria Del Carmen Amado, El fenómeno Shakira azota a Delia’s [The Phenomenon
Shakira Whips Up on Delia’s], HOY, May 3, 2002, at 3.
123 See Bob Port, Schumer Rips Sweatshops: B’klyn Case Sparks Call for Fed Probe of City
Factories, N.Y. DAILY NEWS, May 10, 2002, at 10. At the demonstration, “Schumer put Maria
Elena Arriaga . . . front and center,” and “unleashed plans for legislation aimed at empowering
garment workers and cracking down on labor violations.” Rosemary Feitelberg, N.Y. Senator
Criticizes Dept. of Labor Efforts, WOMEN’S WEAR DAILY, May 13, 2002, at 23; see also Press
Release, Senator Charles E. Schumer, Schumer Calls on Department of Labor To Conduct
Citywide
Investigation
of
Sweatshops
(May
10,
2002),
available
at
http://schumer.senate.gov/SchumerWebsite/pressroom/press_releases/PR00982.html; Gloria I.
Ramirez, Piden investigar “Talleres del Sudor” [Sweatshop Investigation Called For], NOTICIAS
DEL MUNDO, May 11-12, 2002, at 1.
124 See Bob Port, Shakira’s Brand Sweatshop Made, N.Y. DAILY NEWS, Apr. 29, 2002, at 2.
125 As described by New York’s El Diario newspaper, “[L]atino workers from Brooklyn were
crying out for justice. . . . The workers were . . . demanding support in their struggle against
exploitation at the Danmar factory.” Rosa Murphy, Shakira, seguimos con los pies descalzos
[Shakira, we follow you with bare feet!], EL DIARIO LA PRENSA, June 1, 2002, at 1. El Diario
reported that “[m]embers of several community organizations and workers from other companies
joined together . . . to protest.” Id. See also Gabriela Remigio, Shakira envuelta en mas protestas
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In response to Arriaga’s second discharge, and while the protests
mounted, Arriaga and her coworkers—along with their attorneys at
MRBW—pressed the DOL to bring suit under the FLSA’s antiretaliation clause against Danmar and seek Arriaga’s immediate
reinstatement.126 On July 22, 2002, the DOL responded and sought a
preliminary injunction that would order Danmar to reinstate Arriaga
immediately.127
Then, on July 31, 2002—nine days after the
Department filed its motion (and 681 days sooner than an average
NLRB proceeding might have produced this result)—Judge David
Trager of the U.S. District Court for the Eastern District of New York
issued a TRO compelling Danmar to “offer immediate reinstatement of
employment to Maria Arriaga.”128
When Arriaga first attempted to enforce Judge Trager’s order, she
was turned away from the factory and “told there was no work for
her.”129 Accordingly, the DOL filed a contempt motion seeking a
$10,000 daily fine, and on August 8 Judge Trager held a hearing to
consider Danmar’s failure to comply with the terms of the TRO.130
Forty Danmar workers attended the hearing, and heard Judge Trager
orally order Danmar to reinstate Arriaga.131 Danmar also agreed at the
hearing to pay Arriaga the wages she would have earned had she been
reinstated according to the original TRO.132 By August 9, Arriaga was
back at work at Danmar. 133
With Arriaga reinstated, and the retaliation remedied, the workers’
efforts to secure their wage and hour rights could move toward
completion. In December 2003, Danmar agreed to pay $410,000 to 175
[Shakira Surrounded by More Protests], NOTICIAS DEL MUNDO, June 1-2, 2002, at 1; Bob Port,
Not all Shakira Fans: Sweatshop Workers To Protest TV Appearance, N.Y. DAILY NEWS, May
31, 2002, at 2.
126 See, e.g., Port, supra note 101. The FLSA provides for a private right of action and also
gives the Secretary of Labor authority to institute proceedings. See 29 U.S.C. § 216(b) (2000).
127 See Docket Entries 12-13, Chao v. Danmar Finishing Corp, No. 02-CV-3492 (E.D.N.Y.
July 22, 2002); Eugene Scalia, Solicitor, Dep’t of Labor, Address to the American Bar
Association (Aug. 12, 2002), in BUREAU OF NAT’L AFFAIRS, DAILY LABOR REPORT, at E-4
(2002) (“[W]e . . . filed a motion that to our knowledge has never been filed before by the
Solicitor’s Office—we filed a motion for a preliminary injunction immediately reinstating the
wrongfully terminated employee . . . Ms. Arriaga.”). On June 17, the DOL had filed a § 215(a)(3)
action for reinstatement. See Retaliation Complaint, supra note 98, at 5; Scott Malone, Second
Suit Filed by DOL Against Brooklyn Factory, WOMEN’S WEAR DAILY, June 19, 2002, at 3; Bob
Port, Feds Hit B’klyn Sweatshop with New Suit, N.Y. DAILY NEWS, June 20, 2002, at 30.
128 Temporary Restraining Order at 1, Chao v. Danmar Finishing Corp, No. 02-CV-3492
(E.D.N.Y. July 31, 2002); see also Begay, supra note 108, at B3.
129 Begay, supra note 108.
130 See Joanna Ramey, DOL Case Judge Orders Danmar To Rehire Worker, WOMEN’S WEAR
DAILY, Aug. 13, 2002, at 7.
131 See id.
132 See id.
133 See id. (“Arriaga worked Friday [August 9] and Saturday [August 10], according to Nieves
Padilla, an organizer with Make the Road by Walking . . . . ‘I spoke to [Arriaga] on Saturday, and
she said everything’s OK and she’s getting better treatment’ . . . .”)
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workers.134 The Daily News hailed Arriaga’s leadership, writing that
“in the Latino area of Bushwick where she lives, Arriaga, a soft-spoken
woman who moved here from Mexico a decade ago, became a real-life
counterpart to movie heroine Norma Rae.”135 In the end, the campaign
was described as a “historic triumph for a band of immigrant sweatshop
laborers who challenged their boss.”136
2.
Collective Action under Title VII
While Arriaga and her coworkers were using the FLSA to protect
their collective campaign to recover unpaid overtime in Brooklyn, a
group of immigrant sheetrock workers in Colorado was relying on Title
VII to protect their own collective campaign at work.137 Phase II
Company is one of the largest construction companies in Colorado, and
was the subcontractor responsible for the drywall and metal frame work
in the construction of Colorado University Hospital’s Fitzsimmons
Cancer Center.138 Approximately 90% of the Phase II workforce on the
Fitzsimmons project were employees of Mexican national origin and
10% were Caucasian workers, while the supervisors and general
foreman on the project were all Caucasian.139
According to affidavits filed by Phase II workers, work on the
Fitzsimmons project was defined by severe national origin
discrimination and harassment. Phase II supervisors routinely referred
to Mexican immigrant workers in viciously derogatory terms.140
134 Four hundred thousand dollars for unpaid overtime and liquidated damages, and $10,000 to
compensate the workers who suffered retaliatory reductions in their wages. See Consent
Judgment at 4, Chao v. Danmar Finishing Corp, No. 02-CV-3492 (E.D.N.Y. Dec. 17, 2003); see
also Steven Greenhouse, Knitwear Maker Settles Labor Charges, N.Y. TIMES, Dec. 18, 2003, at
B5; Scott Malone, Department of Labor Settles with New York Contractor, WOMEN’S WEAR
DAILY, Dec. 18, 2003, at 9.
135 Bob Port, Sweatshop Backs Down, Return to Work Is Victory for B’klyn Norma Rae, N.Y.
DAILY NEWS, Aug. 26, 2002, at 22. Arriaga was named one of the “Women of the Year” by
Latina magazine. See Anamary Pelayo, Mujeres of the Year, LATINA, Dec. 2002, at 90.
136 Bob Port, Workers Knit 410G Labor Settlement, N.Y. DAILY NEWS, Dec. 18, 2003, at 12.
137 Like the FLSA, Title VII prohibits employers from retaliating against workers who seek to
enforce their rights under the statute. Indeed, Title VII’s anti-retaliation clause is broader than the
FLSA’s, making it unlawful for an employer to discriminate against any of his employees
“because [the employee] has opposed any practice made an unlawful employment practice by
[Title VII].” 42 U.S.C. § 2000e-3(a) (2000).
138 See Kelly Pate Dwyer, Immigrants Win Contractor Suit; $600,000 Is Awarded to 10
Workers in a U.S. District Court Bias Case, DENVER POST, June 2, 2004, at C-02; Complaint and
Jury Trial Demand at 4, Equal Employment Opportunity Commission v. Phase II Company, Inc.,
CV 03-N-1911 (D. Colo. Sept. 26, 2003) [hereinafter Phase II Complaint] (on file with author).
139 See Phase II Complaint, supra note 138, at 4, ¶ 11.
140 See, e.g., Affidavit of Felipe Rodriguez Gonzalez at 4, NLRB Case 27-CA-17043-1 (Aug.
31, 2000) [hereinafter Gonzalez Affidavit] (on file with author); Affidavit of Damian Rodriguez
Armendariz at 3, NLRB Case 27-CA-17043-1 (Sept. 1, 2000) [hereinafter Armendariz Affidavit]
(on file with author).
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Workers alleged, for example, that daily work meetings were
punctuated with remarks including, “Hey . . . wetbacks,” and that
managers would berate workers with the Spanish phrase “muevete
mojados,” or “move it, wetbacks.”141 Mexican workers on the
Fitzsimmons project also were compelled to use different, and dirtier,
lavatory facilities than their Anglo coworkers.142 Thus, “when [Phase
II] Mexican workers attempted to use the cleaner ground floor
restrooms, the foreman would call them ‘flojos’ [lazy], reprimand them
for taking too much time, and deny them the key.”143
Likewise, Phase II supervisors provided drinking water to Anglo
workers but not the Mexican workers.144 During morning work
meetings, “the supervisors told the Mexican workers that the water was
not for them, but only for them, pointing to the Anglo workers who
stood apart from the Mexican workers.”145 And, eventually, “the
supervisors placed the drinking water in their trailer, where the Anglo
workers could enter and drink, but where the Mexican workers were not
allowed.”146 Finally, Phase II supervisors made elevators on the
worksite available to Anglo employees but denied Mexican workers
access to the elevators, even when Mexican workers were transporting
heavy work materials. Indeed, Mexican workers “were reprimanded by
foremen when they were seen waiting for [the elevator].”147
Like the Danmar workers in Brooklyn, workers at Phase II in
Colorado decided to combat these workplace conditions through
collective action. So, on August 14, 2000, a Phase II sheetrock hanger
named Ivan Garcia telephoned Gustavo Moldanado, a union organizer
with the United Brotherhood of Carpenters, and discussed with him the
problems on the Fitzsimmons project.148 Garcia and Moldanado agreed
that the workers should meet with union representatives, and on August
16th, two large group meetings were held at the construction site.
During lunchtime on the 16th, Maldonado and two other Carpenters’
organizers met with seventy Phase II workers at the cancer center.
Phase II employee Jose Rafael San Miguel spoke during the lunchtime
141 Phase II Complaint, supra note 138, at 5; E.E.O.C. Affidavit of Felipe Rodriguez at ¶ 7
(Oct. 16, 2001) [hereinafter Rodriguez Affidavit] (on file with author).
142 See Equal Employment Opportunity Commission, Determination Letter in Charge No.
32AA10204, at 3 (July 23, 2002) [hereinafter EEOC Determination Letter]; E.E.O.C. Affidavit of
Fidel Zuniga (Oct. 22, 2001) [hereinafter Zuniga Affidavit] (on file with author).
143 Phase II Complaint, supra note 138, at 5; Rodriguez Affidavit, supra note 141, at ¶ 4.
144 See EEOC Determination Letter, supra note 142, at 3; E.E.O.C. Affidavit of Francisco
Javier Valles, at ¶ 8, Oct. 11, 2001 (on file with author); Rodriguez Affidavit, supra note 141, at ¶
5.
145 Phase II Complaint, supra note 138, at 5-6.
146 Id. at 6.
147 EEOC Determination Letter, supra note 142, at 3; see also Phase II Complaint, supra note
138, at 5; Zuniga Affidavit, supra note 142.
148 Affidavit of Ivan Garcia at 1, NLRB Case 27-CA-17043-1 (Sept. 6, 2000) [hereinafter
Garcia Affidavit] (on file with author).
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meeting stating that “what we wanted was for the Union to stop the
discrimination and the abuses that there were inside the company.”149
Another Phase II sheetrock hanger, Mike Rios, explained that: “We
talked about all the discrimination against the Mexican workers and
how badly we were being treated. I told the union representatives that
there was a lot of discrimination against the Mexicans. I said we were
being called stupid, wetbacks and good for nothing.”150
Later that same day, another group meeting was held in the parking
lot of the Fitzsimmons construction site, and approximately ninety
Phase II workers joined the Carpenters’ union organizers.151 At this
meeting, San Miguel explained, the workers “complained about how
[Phase II supervisors] Bill and John would tell us that if we wanted to
leave [we could] because they could just bring more wetbacks to work
for the employer.”152
As the workers’ collective activity continued, Phase II
management began expressing opposition. As Mike Rios explains it:
Our lunch break is generally 30 minutes long. The meeting with the
Union . . . lasted that long. About one minute before our lunch break
was over, [supervisors Bill Warner and Miguel Resendiz] . . . came
to the fourth floor where we were meeting. When Warner got out of
the elevator he started screaming in English that the lunch break was
over and to get our asses to work and that was what he was paying us
for. He told us to stop with our Union shit and that he paid us to
work and not to be meeting with the Union. . . . Resendiz told me
that if we continued with the Union that we were all going to lose
our jobs. He said that the Employer was going to change its name to
another and the company was going to keep working without the
guys who supported the Union. . . . Warner said that anyone who
supported the Union would be told bye-bye by Phase II.153
Phase II employee Felipe Rodriguez Gonzalez similarly reports
that his supervisor “shouted at us . . . and said that those of us who were
with [] the Union should leave and that the doors were open . . . . [He
said] that through here entered a wetback and through over there
149 Affidavit of Jose Rafael San Miguel at 2, NLRB Case 27-CA-17043-1 (Aug. 31, 2000)
[hereinafter San Miguel Affidavit] (on file with author).
150 Affidavit of Mike Rios at 4, NLRB Case 27-CA-17043-1 (Aug. 2000) at 4 [hereinafter
Rios Affidavit] (on file with author).
151 Id. at 3.
152 San Miguel Affidavit, supra note 149, at 3. The next day, August 17th, seventy Phase II’s
drywall hangers came to work wearing union T-shirts. Rios Affidavit, supra note 150, at 3. At
lunchtime, another union meeting was convened, and again between seventy and ninety
employees attended. The organizers distributed union authorization cards to workers, many of
whom indicated that they wanted the Carpenters’ to act as their collective bargaining
representative. See Rios Affidavit, supra note 150, at 4; Supplemental Affidavit of Felipe
Rodriguez Gonzalez at Exhibit 1, NLRB Case 27-CA-17043-1 (Sept. 6, 2000) [hereinafter
Supplemental Gonzalez Affidavit] (on file with author).
153 Rios Affidavit, supra note 150, at 4-5.
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another one left.”154
On August 19th, the most active members of the nascent Phase II
organizing campaign met at the Carpenters’ union hall. Following a
discussion of the discrimination faced by the workers on the
Fitzsimmons project, and the hostility with which management was
responding to the workers’ efforts to resolve the situation, the workers
agreed to strike.155 After a subsequent strike planning meeting among
seventy workers at the Fitzsimmons worksite,156 Carpenters’ organizer
Eduardo Gomez wrote to Phase II and informed the company that “[t]o
protest your illegal acts, the employees of Phase II will temporarily
withhold their services, and inform the public of their grievances.”157
And, indeed, on August 24th, between eighty and ninety Phase II
employees walked off the job and picketed the Fitzsimmons worksite.158
When supervisor Bill Warner told union organizer Eduardo Gomez that
all employees should return to work, “Gomez said that the workers did
not want to return to work because we wanted the Union to represent us
and that we were tired of the way in which we were treated.”159 The
workers remained on strike through the 25th of August.160
Soon after the strike, Phase II management began retaliating
against workers who participated in the collective action. Mike Rios
suffered a pay cut six days following the walkout. As Rios explained,
he was called to the office of his supervisor John T. on August 31st,
where he was told: “[T]here had been a problem with my pay rate.
[John T.] said that he had made a mistake and had given me the wrong
hourly rate. He said that instead of $13.00 an hour, he was going to
start paying me $10.00 an hour.”161 Armendariz reported that his
tools—which he owned, and which were kept in a lock-box at the
Fitzsimmons worksite—went missing shortly following the strike.162
Jose Manuel Nunez, one of the employees chosen by his coworkers to
lead the strike,163 saw his work hours reduced on September 8th.164
154 Rodriguez Affidavit, supra note 141, at 2. Damian Rodriguez Armendariz also reports that
his supervisor responded to the workers wearing union t-shirts by calling them “wetbacks.”
Armendariz Affidavit, supra note 140, at 3. According to the union, one foreman responded to
the workers’ organizing efforts by saying, “If you fucking wetbacks want the union in here, I[‘ll]
fire you all and get some new wetbacks.” Press Release, Mountain West Regional Council of
Carpenters (Sept. 2000) (on file with author).
155 Rios Affidavit, supra note 150, at 5.
156 Id. at 6.
157 Letter from Eduardo Gomez to Phase Two Constr. Co. (Aug. 23, 2000) (on file with
author).
158 San Miguel Affidavit, supra note 149, at 4.
159 Rios Affidavit, supra note 150, at 7.
160 See, e.g., Armendariz Affidavit, supra note 140, at 5.
161 Rios Affidavit, supra note 150, at 9.
162 Armendariz Affidavit, supra note 140, at 5-6.
163 E.E.O.C. Affidavit of Eduardo Gomez (Dec. 18, 2001) (on file with author).
164 Affidavit of Jose Manuel Nunez at 3, NLRB Case 27-CA-17043-1 (Sept. 12, 2000)
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On September 12th, the union again wrote to Phase II and
announced that the workers at the Fitzsimmons worksite planned to
“conduct a peaceful demonstration as a means to inform the public of
their grievances.”165 And on September 15th, Phase II workers left their
jobs once more to engage in a one-hour silent picket in opposition to the
company’s discriminatory employment practices.166
Immediately
following this silent protest, Jose Hector Quinonez and at least five
other Phase II workers who had been engaged in the collective actions
designed to combat the employer’s discriminatory practices were
discharged.167
The Phase II workers first attempted to remedy the employer’s
retaliatory actions and protect their attempts at collective action by
filing unfair labor practice charges with the NLRB. The workers
alleged that the reduction in working hours, pay cuts, and discharges
that followed their collective activities violated sections 8(a)(1) and (3)
of the NLRA.168 The Board, however, declined to pursue the charges.
In its dismissal letter, the Board concluded that the evidence was
insufficient to establish that the employer had taken retaliatory action
due to the workers’ collective union activities.169 The union’s
administrative appeal was denied on the same ground. Although the
Board concluded that “the Employer bore animus toward employees
engaging in protected activity,” and found it “suspicious that [Mike
Rios’] reduction in hourly pay from $13 to $10 was not implemented
until after the employee strike,” it concluded that “it could not be
established that the Employer acted for other than legitimate
reason[s].”170
The NLRB did conclude, however, that Phase II violated the
NLRA by surveilling employees involved in collective activities and by
threatening employees who engaged in union activities.171 Based on
this finding, the Board proposed a settlement according to which the
[hereinafter Nunez Affidavit] (on file with author).
165 Letter from Jim Gleason, Regional Director of Organizing, to Dan Larson, Phase II
Company (Sept. 12, 2000) (on file with author).
166 See Phase II Complaint, supra note 138, at 6; Telephone Interview with Eddie Canales and
Gustavo Torres (Dec. 5, 2006) (notes on file with author).
167 Affidavit of Jose Hector Quinonez at 3, NLRB Case 27-CA-17043-1 (Sept. 12, 2000)
[hereinafter Quinonez Affidavit] (on file with author); Phase II Complaint, supra note 138, at 6.
168 See Amended Charge Against Employer, 27-CA-17043 (Sept. 13, 2000) (on file with
author).
169 See Dismissal Letter from B. Allan Benson, Nat’l Labor Relations Board Reg’l Dir., to Jim
Gleason, Dir. of Org. of the Rocky Mountain Reg’l Council of Carpenters Re: Case 27-CA17043-1 (Oct. 31, 2000) [NLRB Dismissal Letter] (on file with author). The Board accepted
Phase II’s contention that the employees had been discharged for cause and found insufficient
evidence that the employer’s justifications were pretextual. See id.
170 Letter from Yvonne T. Dixon, Dir., Office of Appeals, NLRB, to Dennis Valentine, Esq.
(Jan. 11, 2001) (on file with author) (regarding Case 27-CA-17043-1).
171 See NLRB Dismissal Letter, supra note 169, at 2.
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employer was ordered to post a notice informing employees of their
NLRA rights and announcing, inter alia, that “[w]e will not threaten our
employees with loss of their jobs because they choose to engage in a
protected concerted work stoppage.” No damages award of any kind,
nor any other affirmative relief, was ordered by the Board.172
Unsatisfied with the remedy offered by federal labor law, ten Phase
II employees filed Title VII charges with the Equal Employment
Opportunity Commission (EEOC) ten days after the NLRB dismissed
their complaint.173 The Title VII charges were based explicitly on the
workers’ collective activity. Thus, Felipe Rodriguez charged that:
I believe I have been discriminated against because[] I have been
performing the duties of my job in a satisfactory manner since the
date I was hired[.] I became involved with the Rocky Mountain
Council of Carpenters in August of 2000. The union is addressing
discrimination issues. As a result of joining the Union, and engaging
in the protected activity of opposing discrimination, I was terminated
from my position.174
Based on these charges, the EEOC conducted an investigation of
the Phase II Fitzsimmons project and found reason to believe that the
company had committed numerous violations of the Civil Rights
statute.175 In its determination letter, the Commission concluded that
the employees’ collective activity was protected by Title VII, and that
retaliation for this activity constituted a violation of Title VII. As the
Commission wrote:
Evidence of record suggests that Charging Party and similarly
situated Mexican employees engaged in protected opposition to
discrimination, of which the Respondent was aware, through their
involvement in union activity. Evidence of record indicates that
Charging Party’s protected activity was a factor in Respondent’s
decision to lay off him and similarly situated Mexican employees
from their positions as sheetrock hangers.176
Following failed attempts at conciliation, the EEOC brought suit
against Phase II alleging, inter alia, that the employer violated Title VII
172 See Letter from Michael Cooperman, Att’y, Region 27, NLRB, to Susan M. Schaecher,
Esq. (Nov. 27, 2000) (on file with author) (regarding Case 27-CA-17043-1); Letter from Dennis
E. Valentine to Michael Cooperman, Region 27, NLRB (Jan. 31, 2001) (on file with author)
(regarding Case 27-CA-17043-1); Settlement Agreement in re Phase Two Construction
Company, 27 CA-17043-1 (Jan. 30, 2001) (on file with author).
173 See Phase II Complaint at ¶1; see also, e.g., E.E.O.C. Charge of Discrimination by Felipe
Rodriguez Gonzalez (Nov. 6, 2000) [hereinafter Rodriguez EEOC Charge] (on file with author).
174 Rodriguez EEOC Charge, supra note 173; see also E.E.O.C. Charge of Discrimination by
Damien Rodriguez Armendariz (Nov. 6, 2000) (on file with author).
175 The Commission found evidence to support the workers’ charges that they were subjected
to verbal harassment and disparate terms and conditions of employment—including the
allegations concerning unequal access to bathrooms, drinking water, and elevators. See EEOC
Determination Letter, supra note 142, at 2-3.
176 Id. at 2.
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by retaliating against employees who exercised rights protected by the
statute. The complaint again explicitly framed the workers’ collective
action as activity protected by the Civil Rights Act. For example, in the
complaint section titled “Retaliation for Opposing Employment
Discrimination,” the EEOC included the following facts:
Several drywall installers . . . contacted the Rocky Mountain
Regional Council of Carpenters for assistance in changing the[ir]
work conditions, including the discriminatory and harassing
treatment. . . . Beginning August 24, 2000, approximately [one]
hundred mostly Mexican born workers began a walkout and
“informational” picket that lasted a day and a half. . . . When the
owner/President of Phase 2 failed to follow up with investigations of
the complaints, a one hour peaceful protest was staged on September
15, 2000.177
The EEOC asserted that Phase II’s adverse actions based on
employee participation in this union activity violated Title VII’s antiretaliation clause.178
While the NLRB proceedings resulted only in the posting of a
notice informing employees of their NLRA rights, the Title VII lawsuit
resulted in the entry of a consent decree against Phase II. Pursuant to
the decree, the company agreed to pay $750,000 in damages: $600,000
to the ten charging parties and an additional $150,000 to other eligible
class members. The decree also mandated that Phase II implement an
equal employment opportunity training program for all managerial
employees. Finally, Phase II was enjoined from future acts of
retaliation for employee activity protected by Title VII, thus subjecting
the company to contempt sanctions should it again interfere with
workers’ collective action designed to combat workplace
discrimination.179
III. INDIVIDUAL RIGHTS AND COLLECTIVE ACTION: A THEORETICAL
MODEL
These two examples illustrate an important and emergent trend in
American labor law: workers are turning to employment law to provide
legal protection for their collective activity. The accounts also raise
further doubts about the conventional view of employment law’s
individual rights regime as offering no support for—or as being inimical
to—workers’ collective action.
Standing alone, however, these
177
178
179
Phase II Complaint, supra note 138, ¶¶ 18-21.
See id. ¶¶ 29-32.
See Consent Decree in EEOC v. Phase II Company, Inc., CA 03-N-1911 (CBS) (D. Colo.
May 24, 2004) (on file with author).
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examples leave unanswered more systematic questions about
employment law’s ability to foster such collective action. Such a
systematic account would need to provide theoretical support for
employment law’s capacity to perform three core functions. The model
would first have to show that employment law can galvanize a group of
workers capable of acting collectively. It then would be required to
demonstrate employment law’s ability to insulate workers’ nascent
collective activity from coercive interference. Finally, the model would
have to establish that employment law also can generate successive and
more robust forms of organizational and collective activity.
In this Part, working from an array of qualitative and quantitative
research on labor organizing specifically and collective action more
generally, I build such a theoretical model of employment law’s
capacity to galvanize, insulate, and generate collective action.
A.
Galvanizing the Collective
As both qualitative accounts of labor organizing efforts and socialpsychological research into the related processes of framing and identity
construction reveal, the first stage of collective action involves
galvanizing a group of workers capable of acting collectively. Such
galvanizing work involves two basic functions. First, workers must
develop a common understanding of a set of shared workplace
problems. Second, workers must build a group identity strong enough
to sustain a collective response to these problems. In this section, I
offer ways of understanding how employment law can perform these
galvanizing functions.180
1.
Collective Action Framing
Sociologists and historians of labor have long documented the need
for workers engaged in organizing efforts to develop a collective
understanding of the problems they face at work and a vision of how
those problems can be addressed collectively.181 More recently, and
more pertinently, scholars have pointed to the ways in which law can
180 This is, of course, not a claim that only law can perform these galvanizing functions. It is
merely an argument as to how law, and in particular employment law, can do so.
181 See, e.g., RICK FANTASIA, CULTURES OF SOLIDARITY: CONSCIOUSNESS, ACTION, AND
CONTEMPORARY AMERICAN WORKERS (1988); JENNIFER GORDON, SUBURBAN SWEATSHOPS
171 (2005); HOWARD KIMELDORF, BATTLING FOR AMERICAN LABOR: WOBBLIES, CRAFT
WORKERS, AND THE MAKING OF THE UNION MOVEMENT 27-29 (1999); Mark Steven Freyberg,
Constructing the UAW Dodge Local 3: Collective Identity, Collective Efficacy, Collective Action
104-49 (unpublished PhD dissertation, University of Michigan, 1996) (on file with author).
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serve as the mechanism through which such problems are identified and
through which such solutions are suggested. For example, in describing
her experiences directing an immigrant worker center on Long Island,
Jennifer Gordon recounts how workers typically viewed abusive
workplace practices—including nonpayment of wages and unsafe
working conditions—as part and parcel of employment in this low-wage
sector of the U.S. economy. But Gordon also describes law’s ability to
recast these working conditions. She writes, for example, that when
immigrant workers learn that the “pitiful wages” they earn in fact
constitute illegal wages, they are more likely to “identify[] what they
had lived through as a problem, rather than an inevitable condition of
immigrant work.”182 Francesca Polletta’s study of southern civil rights
organizing in the early-mid 1960s, and Anna-Maria Marshall’s study of
sexual harassment, highlight other contexts in which legal rights have
been deployed to articulate injustice in this manner.183
These authors also describe law’s ability to recast workplace
conditions in a manner that calls for collective solutions. Commenting
on the workers’ rights class taught as part of her Workplace Project,
Gordon writes:
The idea that employers were supposed to be acting differently—that
in paying so little and demanding so much they were ignoring a set
of established norms, codified as rights—suggested a less
individualized, more systemic explanation of the problems
immigrant[] [workers] faced in trying to earn enough money to
support themselves and their families . . . . If the problem was
systemic, immigrant[] [workers] would need to respond in kind.184
Polletta similarly shows that an injustice diagnosed as the deprivation of
an individual legal right can call for a broad menu of responses: “People
can widen the scope of rights to encompass new institutional domains,
subjects, and enforcement mechanisms.”185
These descriptive accounts are clarified by the social-psychological
182
183
GORDON, supra note 181, at 171.
See Francesca Polletta, The Structural Context of Novel Rights Claims: Southern Civil
Rights Organizing, 1961-1966, 34 LAW & SOC’Y REV. 367, 369, 377 (2000); see also id. at 386
(“Legal claims-making was thus one component of a political organizing strategy, not at odds
with such a strategy.”); Anna-Maria Marshall, Injustice Frames, Legality, and the Everyday
Construction of Sexual Harassment, 27 LAW & SOC. INQUIRY 659, 664 (2003). Nicholas
Pedriana provides a more extensive account of legal framing in the 1960s women’s movement.
See Nicholas Pedriana, From Protective to Equal Treatment: Legal Framing Processes and
Transformation of the Women’s Movement in the 1960s, 111 AM. J. SOC. 1718 (2006).
184 GORDON, supra note 181, at 171-72 (emphasis omitted).
185 Polletta, supra note 183, at 377. Gordon refers to this as an “opening out” process.
GORDON, supra note 181, at 179. The need for organizers to propose a collective solution to
workplace problems is certainly not unique to contexts in which the workplace problems are
diagnosed according to employment law rights. Indeed, such a need is inherent in nearly all (if
not all) forms of worker organizing. See, e.g., RICK FANTASIA & KIM VOSS, HARD WORK:
REMAKING THE AMERICAN LABOR MOVEMENT (2004).
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literature on “collective action framing.” As David Snow explains,
collective action frames are schemata that “assign meaning to and
interpret relevant events and conditions in ways that . . . mobilize
Snow accordingly
potential adherents and constituents . . . .”186
describes collective action frames as performing two core tasks. The
first, diagnostic framing, involves identifying a problematic condition as
an injustice187 and attributing blame for the injustice to a particular
actor.188 The second core framing task, prognostic framing, involves
articulating an approach to solving the diagnosed injustice.189 In simple
terms, then, frames are a mechanism through which collective diagnoses
and prognoses are developed and then disseminated among potential
collective action participants.
In the context of workers’ collective action, organizers and
activists (and workers themselves) can deploy employment rights
statutes as diagnostic frames—that is, as the mechanism through which
negative workplace conditions are cast as injustices, and blame for those
injustices is attributed to employers. Thus, the FLSA can be used to
articulate the low wages paid to an immigrant workforce not as a natural
fact of life for garment workers, but as a legal violation and injustice
perpetrated by the garment factory’s operators on the workforce. Title
VII similarly can recast disparate treatment of Mexican immigrant
workers not as an inevitable component of low-wage work in the United
States, but as illegal discrimination practiced by the employer on
workers. The fact that it is the law—rather than merely the ideology of
a union organizer or other activist—that diagnoses these problems as
injustice invests the frame with substantially increased power.
As Snow details, moreover, the diagnostic and prognostic
186 David A. Snow & Robert D. Benford, Ideology, Frame Resonance, and Participant
Mobilization, 1 INT’L SOC. MOVEMENT RES. 197, 198 (1988). See also Robert D. Benford &
David A. Snow, Framing Processes and Social Movements: An Overview and Assessment, 26
ANN. REV. SOC. 611, 615 (2000) [hereinafter Framing Processes and Social Movements]; David
A. Snow et al., Frame Alignment Processes, Micromobilization, and Movement Participation, 51
AM. SOC. REV. 464 (1986). Framing processes are now “a conceptual staple of social movement
theory and research.” Pedriana, supra note 183, at 1719. An extensive body of empirical work
supports the conclusion that the successful development and deployment of collective action
frames is essential to collective action across a wide range of contexts, geographies, and time
periods. See, e.g., David A. Snow, Framing Processes, Ideology, and Discursive Fields, in THE
BLACKWELL COMPANION TO SOCIAL MOVEMENTS 387-90, tbl.17.1 (David A. Snow, Sarah A.
Soule & Hanspeter Kriesi eds., 2004).
187 Indeed, sociologist William Gamson characterizes this diagnostic function as the
development of an “injustice frame[].” See William A. Gamson, The Social Psychology of
Collective Action, in FRONTIERS IN SOCIAL MOVEMENT THEORY 53, 68 (Aldon D. Morris &
Carol McClurg Mueller eds., 1992).
188 See Benford & Snow, Framing Processes and Social Movements, supra note 186, at 616.
189 See id. A third task, derivative of the second, is “motivational framing,” which provides a
“‘call to arms’ or rationale for engaging in . . . collective action,” generally relying on contentions
of severity, urgency, efficacy, and propriety. Id. at 617.
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components of framing work are intimately related,190 and by
diagnosing the workplace problem in need of remedy as a collective
injustice, employment law can invite a collective solution. Because the
injustices articulated by employment law are generally experienced by a
subset of a given workforce (and not by a single employee), the
formally individual nature of the statutory rights protected can yield to
the experientially collective nature of the injustice diagnosed. That is,
while the FLSA and Title VII may offer rights and protections to
employees “on an individual and individually enforceable basis,”191
minimum wage violations and discriminatory employment practices are
most often suffered by groups of workers, and so violations of
individual employment rights are amenable to a diagnostic frame that
articulates these deprivations as collective injustice.
2.
Collective Identity Formation
Just as the development of a common diagnosis and prognosis of
injustice is prefatory to participation in collective activity, in order for
individuals to act collectively they must possess or develop what social
psychologists label a “collective identity.”192 In simplest terms, a
collective identity captures “how individuals’ sense of who they are
becomes engaged with a definition shared by co-participants in some
effort at social change.”193 Employment rights can serve as the locus
around which a workers’ collective identity coalesces.
Gordon, for example, explains how a discourse of workplace rights
was instrumental in building a collective identity among the members of
her immigrant worker center.194 According to Gordon’s account,
“[r]ights were powerful in crafting a shared identity . . . because they
began with the shared conditions under which all members labored.”195
Polletta’s work similarly suggests that, in the context of Southern civil
190
191
192
Id. at 616.
Brudney, supra note 58, at 1026-27.
Klandermans writes that “[t]he basic hypothesis regarding collective identity and
movement participation is fairly straightforward: a strong identification with a group makes
participation in collective political action on behalf of that group more likely.” Bert
Klandermans, The Demand and Supply of Participation: Social-Psychological Correlates of
Participation in Social Movements, in THE BLACKWELL COMPANION TO SOCIAL MOVEMENTS,
supra note 186, at 360, 364. For a theoretical exposition, see Bert Klandermans & Marga de
Weerd, Group Identification and Political Protest, in SELF, IDENTITY AND SOCIAL MOVEMENTS
68 (Sheldon Stryker, Timothy J. Owens & Robert W. White eds., 2000). For empirical support,
see, for example, CAROLINE KELLY & SARA BREINLINGER, THE SOCIAL PSYCHOLOGY OF
COLLECTIVE ACTION (1996); Marga de Weerd & Bert Klandermans, Group Identification and
Social Protest: Farmers’ Protest in the Netherlands, 29 EUR. J. OF SOC. PSYCH. 1073 (1999).
193 Gamson, supra note 187, at 55.
194 GORDON, supra note 181, at 156, 165, 171.
195 Id. at 171; see also Ashar, supra note 11, at 1920-21.
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rights organizing, the possession and exercise of civil rights, particularly
voting rights, became the basis of a collective identity based on rights
holding.196 Elizabeth Schneider has shown how individual rights
discourse and claimsmaking contributed to the development of
collective identities within the women’s movement. As she puts it,
“[r]ights discourse” provided a mechanism “for individuals to develop a
sense of self and for [the] group to develop a collective identity.”197
Bernd Simon’s work provides a useful theoretical framework for
examining this dynamic.198 Simon begins from the premise that the self
is composed of plural individual and collective identities, and then
posits that each of these identities is a composite of “self-aspects”:
cognitive categories or concepts including psychological characteristics,
physical features, roles, abilities, tastes, attitudes, and category
memberships.199 Simon’s primary insight, however, is that any selfaspect that is shared with other people has the potential to define a
group membership and thus, ultimately, to constitute the basis for a
collective identity.200 So, for example, while being a father may be one
component of an individual identity, all those individuals who share this
individual self-aspect can come to develop and share the collective
identity of “fathers.” Thus, Simon writes, “the same self-aspect . . . can
provide the basis for a collective [identity] at one time . . . , whereas at
another time it may be construed as simply one component, among
others, of the individual [identity].”201
Crucially for our purposes here, the possession of a right can be a
self-aspect. That is, an individual identity can be constituted in part by
the rights one possesses. So, for example, one can be a person entitled to
vote, to speak freely, and to be hired and promoted without regard to his
or her religious views. Moreover, because every self-aspect can
constitute the “shared attribute around which group members
coalesce,”202 rights possession, even “individual” rights possession, can
be the basis for a collective identity. We might be collectively, for
example, citizens entitled to vote, women entitled to reproductive
choice, and workers entitled to minimum wages and equal treatment.
196
197
See Polletta, supra note 183, at 377, 389-91.
Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the
Women’s Movement, 61 N.Y.U. L. REV. 589, 611 (1986).
198 See Bernd Simon, Individuals, Groups, and Social Change: On the Relationship Between
Individual and Collective Self-Interpretation and Collective Action, in INTERGROUP COGNITION
AND INTERGROUP BEHAVIOR 257 (Constantine Sedikides, John Schopler & Chester A. Insko
eds., 1998).
199 See id. at 260. Similarly, Klandermans writes that an individual identity consists of “[a]ll
the[] different roles and positions a person occupies.” Klandermans, supra note 192, at 364.
200 See Simon, supra note 198, at 260-61; see also Klandermans, supra note 192, at 364.
201 Simon, supra note 198, at 262.
202 Karen A. Cerulo, Identity Construction: New Issues, New Directions, 23 ANN. REV. SOC.
385, 386 (1997).
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But when, and under what conditions, will a given self-aspect in
fact serve as the basis for such a collective identity? When, in our
context, will rights possession become the locus of a collective identity
sufficient to galvanize collective action? Sheldon Stryker’s theory of
identity salience provides a way of answering these questions.
According to Stryker and his colleagues, the identities—both individual
and collective—that comprise the self “exist in a hierarchy of salience,
such that other things being equal one can expect behavioral products to
the degree that a given identity ranks high in this hierarchy.”203 It is
contextual factors, moreover, that determine which collective identities
are high enough on our salience hierarchies at any given moment, in any
given setting, to galvanize action.204 Most relevant here, a shared
experience of unjust treatment will increase the salience of the
collective identity which is the basis for such treatment.205 Thus, racial,
religious, and gender-based oppression have served historically to
activate collective identities based around racial, religious, and gender
group membership.206 And Simon’s research provides experimental
support for the proposition that consciousness of a shared experience of
discriminatory treatment increases the salience of the identity that is the
target of that discrimination.207
Here, finally, the intersection of identity construction and framing
processes becomes apparent: that is, the identification by group
members of an experience as a shared injustice often requires framing
203 Sheldon Stryker, Identity Salience and Role Performance: The Relevance of Symbolic
Interaction Theory for Family Research, 30 J. MARRIAGE & FAM. 558, 560 (1968). Stryker and
Peter Burke have also written that “[i]dentity salience is defined as the probability that an identity
will be invoked across a variety of situations, or alternatively across persons in a given situation.”
Sheldon Stryker & Peter J. Burke, The Past, Present, and Future of an Identity Theory, 63 SOC.
PSYCH. Q. 284, 286 (2000).
204 For example, all those individuals who reside in a neighborhood share the collective
identity of “neighborhood resident.” But, Klandermans observes, the salience of this identity—its
relevance to the lived experiences of the individual residents—will generally remain too low to
form the basis for collective action. If, however, the local government decides to locate a waste
disposal facility on the outskirts of the neighborhood, “chances are that within a very short time
the collective identity of the people living in that neighborhood becomes salient.” Klandermans,
supra note 192, at 364; see also Simon, supra note 198, at 270-72; Scott A. Hunt & Robert D.
Benford, Collective Identity, Solidarity, and Commitment, in THE BLACKWELL COMPANION TO
SOCIAL MOVEMENTS, supra note 186, at 446.
205 Simon, supra note 198, at 264, 270-72; see also Klandermans, supra note 192, at 364.
206 For example, in his study of collective action among Palestinians on the West Bank,
Marwan Khawaja finds that “repression can strengthen collective identity, the sense of belonging
to a group, by operating as a symbolic reminder of a group’s shared circumstance vis-à-vis
authorities . . . .” Marwan Khawaja, Repression and Popular Collective Action: Evidence from
the West Bank, 8 SOC. F. 47, 66 (1993). See also MARTHA MINOW, NOT ONLY FOR MYSELF:
IDENTITY, POLITICS, AND THE LAW 31-32 (1997).
207 See Simon, supra note 198, at 264. In Simon’s study, gay men were more likely to identify
collectively (and to deemphasize individual intragroup differences) the more directly they
experienced differential treatment from heterosexuals on the basis of sexual orientation. See id. at
271.
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work.208 In our context, then, an employer’s violation of employment
rights can increase the salience of a workers’ collective identity based
around possession of those rights if the statutory violation is
experienced collectively as unjust treatment. By diagnosing an
employer’s payment of low wages, or her differential treatment of
employees based on race, as an injustice practiced on workers
collectively, therefore, employment laws can be instrumental to
constructing for workers a shared experience of unjust treatment. As
such, the successful use of employment law to frame oppressive
working conditions as collective injustices can increase the salience of a
collective identity based around possession of employment rights.209
Before moving on, it is important to observe that reliance on
employment law to perform these framing and identity functions creates
its own risks for the organizational process. The most significant of
these is that law will function to galvanize one particular subgrouping of
workers while excluding other groups. So, if a workplace condition is
diagnosed as an injustice by virtue of the fact that it constitutes a
statutory violation, and that violation affects only certain workers within
the workplace, the collective action frame built around the legal
violation may function only for those workers who suffer the statutory
violation. Similarly, a collective identity built around rights possession
and violation may be available only to those workers whose rights are in
fact violated.
This risk is only a potential one, however, because we should not
assume that workers faced with discriminatory work practices will
exhibit only “intragroup solidarity,” or cohesiveness along lines of race,
national origin, or gender.210 Rather, as Noah Zatz argues, workers in
208 Simon asserts that it is “the experience or construction of common fate (e.g., shared
experience of unjust treatment)” that increases the salience of a collective identity. Id. at 264; see
also id. at 272 (noting that “highlighting or construing a common fate for its constituency may be
one important step each social movement . . . has to undertake to promote collective selfinterpretation . . . and thus ultimately participation in collective action”). The “construction” at
work in such a process is the framing of the experience—for group members by other participants
or activists—as both shared and unjust. Indeed, as Snow and McAdam write, “[f]raming
processes that occur within the context of social movements constitute perhaps the most
important mechanism facilitating identity construction processes, largely because identity
constructions are an inherent feature of framing activities.” See David A. Snow & Doug
McAdam, Identity Work Processes in the Context of Social Movements: Clarifying the
Identity/Movement Nexus, in SELF, IDENTITY AND SOCIAL MOVEMENTS, supra note 192, at 41,
63.
209 See generally Scott A. Hunt, Robert D. Benford & David A. Snow, Identity Fields:
Framing Processes and the Social Construction of Movement Identities, in NEW SOCIAL
MOVEMENTS: FROM IDEOLOGY TO IDENTITY 185 (Enrique Laraña, Hank Johnston & Joseph R.
Gusfield eds., 1994).
210 Noah D. Zatz, Beyond the Zero-Sum Game: Toward Title VII Protection for Intergroup
Solidarity, 77 IND. L.J. 63, 69 (2002); see generally Mia Giunta, Working-Class People Have a
Very Deep Culture Based on Solidarity and Trust, in THE NEW RANK AND FILE 35-36 (Staughton
Lynd & Alice Lynd eds., 2000); see also Schultz, supra note 58 (emphasizing the use of law as a
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discriminatory work settings can also act according to principles of
“intergroup solidarity,” taking steps to combat discriminatory workplace
practices aimed at workers of different races, national origins and
genders.211 Moreover, the risk extends only to a particular kind of
workplace organizing—namely, organizing based around workers’
status as workers. Organizing based around racial or national or gender
identities, or around the deprivation of statutory rights—including
minimum and overtime wages—is not threatened by this limitation on
employment law’s galvanizing capabilities.212 Indeed, the campaigns at
both Danmar and Phase II featured precisely these latter types of
organizational activity.213
This observation points to another potential risk inherent in an
employment law-based organizing approach. The risk is that the rights
provided by employment law will serve to constrain workers’ collective
goals—that while a frame offered by employment law might galvanize
collective action aimed at securing statutory rights, the same frame will
place broader aspirations beyond reach. To be sure, forms of rightsbased organizing have been critiqued for precisely this reason, and the
risk is, again, a real one.214 But many traditional workplace-based
organizing efforts, including traditional union organizing drives, begin
with a discrete—even narrow—goal. At the outset of a union
organizing campaign, workers might be focused entirely on better
wages, or a safer workplace, or a health insurance policy, or even the
removal of a single, particularly abusive manager.215 Yet successful
achievement of these initial, “narrow” goals need not mark the end of
the collective efforts or of organizational development. To the contrary,
achieving narrow victories can be—as I discuss at greater length in Part
C below—the first step in a broader endeavor.
B.
Insulating Nascent Organizational Activity
Once workers decide to combat a perceived workplace injustice by
means to facilitate intergroup solidarity, rather than conceptualizing individuals as belonging to
dichtomotomous “protected classes”).
211 See id. For a recent example from the case law, see Moore v. City of Philadelphia, 461
F.3d 331 (3d Cir. 2006).
212 The success of such organizing—i.e., the ability of workers to secure their collective
goals—may vary according to the heterogeneity of the workforce.
213 It is perhaps worth noting here, as Alan Hyde does, that much recent union organizing has
“involved workers linked by, and organizing around, a shared ethnic or other group identity.”
Hyde, supra note 11, at 411 n.107.
214 See, e.g., Gordon, supra note 88, at 437-40. For an overview, see Ashar, supra note 11, at
1904-11.
215 Or on some combination of such discrete issues. For some examples, see STEVEN HENRY
LOPEZ, REORGANIZING THE RUST BELT 40-47 (2004); FANTASIA, supra note 181, at 121-80.
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acting collectively, they often must contend with coercive actions
designed to interfere with their efforts. One rough indicator of the
extent of this interference is found in the NLRB’s annual reports on
unfair labor practices. Again, in 2005, the Board found that more than
30,000 U.S. workers faced illegal retaliation for engaging in collective
activity.216 A similar indicator is Schmitt and Zipperer’s conclusion that
nearly one in five workers who takes an active role in organizing
activity is discharged for doing so.217
As noted at the outset of this Article, the NLRA intends but fails to
insulate workers’ collective action from employer interference. The
lack of remedies adequate to deter economic retaliation for organizing
activity, the delays that plague NLRB procedures, the exclusions of
wide sectors of the labor force from NLRA coverage, and the lack of a
private right of action to enforce statutory rights all have contributed to
the NLRA’s inability to protect workers’ efforts to act collectively.218
By virtue of their very different remedies, enforcement mechanisms,
and scope of coverage, employment statutes like the FLSA and Title VII
offer distinct comparative advantages over the NLRA when it comes to
insulating workers’ collective action.
With respect to remedies, in place of the NLRA’s “woefully
inadequate” compensatory regime, the FLSA offers workers double
damages for wages lost as a result of retaliation, and several courts have
held that the statute entitles victims of retaliation to punitive
damages.219 Workers who face retaliation for exercising their Title VII
216
217
218
219
See supra note 34 and accompanying text.
See supra note 3 and accompanying text.
See generally Weiler, supra note 2, at 1787-95.
See 29 U.S.C. § 216(b) (2000); Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d
108 (7th Cir. 1990). But see Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000)
(finding punitive damages unavailable). Although not deciding the question, the Ninth Circuit
has allowed a punitive damages award in an FLSA case to stand, writing that “the Seventh
Circuit’s reasoning [in Travis] is persuasive.” Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir.
1999) (refusing to disturb an award of punitive damages in an FLSA retaliation case on the
ground that the defendant had waived the objection by failing to raise it below). District court
opinion is also divided. Several district courts have held that punitive damages are available for
violations of the FLSA anti-retaliation clause, see, e.g., Sines v. Serv. Corp. Int’l, 03 Civ. 5465
(SC), 2006 U.S. Dist. LEXIS 82164 (S.D.N.Y. Nov. 8, 2006); Marrow v. Allstate Sec. &
Investigative Servs., Inc., 167 F. Supp. 2d 838, 841-46 (E.D. Pa. 2001); Contreras v. Corinthian
Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053, 1059 (N.D. Cal. 1998); O’Brien v. DeKalbClinton Counties Ambulance Dist., No. 94-6121-CV-SJ-6, 1996 U.S. Dist. LEXIS 14636 *16*19 (W.D. Mo. June 24, 1996), while others have held that the FLSA does not provide for
punitive damages. See Lanza v. Sugarland Run Homeowners Ass’n, Inc., 97 F. Supp. 2d 737,
739-42 (E.D. Va. 2000); Johnston v. Davis Sec., Inc., 217 F. Supp. 2d 1224, 1229-32 (D. Utah
2002). In 2004, two student Notes were published on the subject, both concluding that punitive
damages are available. See Jennifer Baugh, Note, Punitive Damages and the Anti-Retaliation
Penalties Provision of the Fair Labor Standards Act, 89 IOWA L. REV. 1717 (2004); Carol
Abdelmesseh & Deanne M. DiBlasi, Note, Why Punitive Damages Should Be Awarded for
Retaliatory Discharge Under the Fair Labor Standards Act, 21 HOFSTRA LAB. & EMP. L.J. 715
(2004).
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rights are entitled to seek not only backpay but also additional amounts
as punitive damages, up to certain (per plaintiff) statutory limits.220
Further, both statutes provide workers with a private right of action to
challenge retaliatory conduct and both make preliminary injunctive
relief available.221 Finally, although these employment law statutes
contain their own exclusions and limitations, their coverage is broader
than the NLRA’s in important respects. Thus, while the NLRA
generally excludes contingent workers and “knowledge” workers, both
the FLSA and Title VII offer protection from retaliation to many
workers in these sectors of the labor force.222 And while undocumented
workers are now effectively excluded from the NLRA, employment
laws still offer the hope of protection to these employees.223
The Danmar and Phase II histories demonstrate some of these
virtues. In the Danmar example, the FLSA succeeded where the NLRA
fails: it provided Arriaga a quick remedy for illegal discharge, thereby
saving the campaign to secure overtime pay. And at Phase II, Title VII
succeeded where the NLRA never can: the employer paid a heavy
financial penalty for interfering with the workers’ collective campaign
to secure compliance with their statutory rights.
Recent recoveries in other FLSA and Title VII retaliation cases
provide further evidence of the power of these remedial regimes. In
Lambert v. Ackerley, for example, a group of ticket sales agents
collectively opposed their employer’s overtime pay practices.224 When
the six employees involved in the FLSA demand were discharged, they
brought an action under the FLSA anti-retaliation clause and won $4.1
million in punitive damages.225 Similarly, the Fourth Circuit recently
upheld a half-million dollar award to a single plaintiff discharged for
filing an EEOC complaint,226 and the plaintiff in Luu v. Seagate
220 See 42 U.S.C. § 1981a(b)(1), (3). There is a statutory limit on the amount of compensatory
and punitive damages that each complaining party in a Title VII case may receive. The limits
“for each complaining party” range from $50,000 for small employers to $300,000 for employers
with more than 500 employees. See id. § 1981a(b)(3). These limits, however, which are in
addition to any backpay awards, allow for significant recoveries, and, in collective campaigns
where multiple workers face retaliation, the potential damages are substantial and substantially
greater than those available in NLRA proceedings.
221 See 29 U.S.C. § 216(b) (FLSA); 42 U.S.C. § 1981 (Title VII). Professor Estlund has
commented on the virtues of employment laws’ private rights of action and has suggested adding
a private right to the NLRA. See Estlund, supra note 2, at 1551-58.
222 See generally Stone, supra note 50. The Department of Labor’s recently-revised overtime
regulations may restrict parts of the FLSA’s coverage as to certain workers excluded by the
NLRA’s supervisory exclusion. See 29 C.F.R. §§ 541.0-553.233 (2008)
223 See, e.g., Singh v. Jutla, 214 F. Supp. 2d 1056 (N.D. Cal. 2002) (FLSA); Rivera v. NIBCO,
364 F.3d 1057 (9th Cir. 2004) (Title VII); see generally Michael J. Wishnie, Emerging Issues for
Undocumented Workers, 6 U. PA. J. LAB. & EMP. L. 497, 512 (2004).
224 See Lambert, 180 F.3d at 1001-02.
225 See id. at 1002. The jury awarded the plaintiffs $12 million in punitive damages. The
district court reduced the award to $4,182,000. Id.
226 See DePaoli v. Vacation Sales Assocs., LLC, 489 F.3d 615 (4th Cir. 2007).
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Technology, Inc. recovered $2 million when she was discharged for
reporting sexual harassment to her manager.227
To be sure, there are doctrinal questions that stand as potential
limitations to employment law’s ability to insulate workers’ collective
action. First, the range of protest activity protected by both statutes is a
matter of some dispute. From the time of Title VII’s passage until
today, both the EEOC and federal courts have read the statute as
extending protection to workers who engage in a wide range of protest
activities—including work stoppages—directed at discriminatory
workplace practices.228 But, as Jennifer Hunter observes, other courts
have adopted a narrower reading of Title VII’s anti-retaliation
provision, finding employee behavior unprotected in cases where the
employee’s actions are deemed unduly disruptive of the “work of the
enterprise.”229 There is also debate among the federal courts of appeals
227
228
See Civ. No. 99-220 (JRT/FLN), 2001 U.S. Dist. LEXIS 15567 (D. Minn. July 5, 2001).
Title VII’s anti-retaliation clause makes it unlawful for an employer to discriminate against
any of his employees “because [the employee] has opposed any practice made an unlawful
employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a) (2000). Early decisions by the
EEOC construed the anti-retaliation clause as protecting employees who opposed discriminatory
work assignments by refusing to perform them—that is, by engaging in a work stoppage to
protest discrimination. See, e.g., EEOC Decision No. 74-56, 10 Fair Empl. Prac. Cas. (BNA) 280
(Nov. 16, 1973); EEOC Decision No. 73-519, 1973 EEOC Lexis 5 (June 1, 1973). In EEOC v.
Crown Zellerbach, the Ninth Circuit found that Title VII protected a group of African-American
employees who formed an employee organization called “The Concerned Black Zellerbach
Employees,” picketed the warehouse where they worked along with the campaign headquarters of
the Mayor of Los Angeles, sent letters to the board chairman of Crown Zellerbach and to local,
state, and federal elected officials, and complained to their employer’s largest customer of “the
bigoted position of racism at Zellerbach Paper Company.” 720 F.2d 1005, 1010-13 (9th Cir.
1983). In more recent years, the Seventh Circuit, for example, held that employees who missed
work in order to participate in a series of public protests against their employer’s allegedly
discriminatory practices were protected from discharge. See Mozee v. Am. Commercial Marine
Serv. Co., 940 F.2d 1036, 1040, 1052-54 (7th Cir. 1991). Recent decisions also construe the
clause as protecting employees who picket their employer’s business, see Parker v. Philadelphia
Newspapers, Inc., 322 F. Supp. 2d 624, 630 (E.D. Pa. 2004); Kipkirwa v. Santa Clara County
Probation Dept., No. 96-15393, 1997 U.S. App. LEXIS 9062 (9th Cir. Apr. 21, 1997),
communicate with their employer’s customers regarding the employer’s discriminatory practices,
see Sumner v. United States Postal Servs., 899 F.2d 203, 209 (2d Cir. 1990), and communicate
such complaints to elected officials, see, e.g., Robinson v. S.E. Pa. Transp. Auth., Red Arrow,
982 F.2d 892, 896-97 (3d Cir. 1993).
229 See Jennifer Hunter, Retaliation Protection Under Title VII: From Grassroots Interpretation
and Enforcement to Employer Sovereignty 87-92 (2003) (unpublished manuscript, on file with
author). These cases do not involve collective action (and none hold that the types of activity
engaged in by Phase II workers are unprotected by Title VII). Rather, they generally involve the
disclosure of confidential personnel information, see, e.g., Haught v. The Louis Berkman LLC,
No. 5:03CV109, 2006 U.S. Dist. LEXIS 8738, at *1 (N.D. W. Va Feb. 16, 2006); Shoaf v.
Kimberly-Clark Corp., 294 F. Supp. 2d 746 (M.D.N.C. 2003); employee dishonesty, see
Campbell v. Abercrombie & Fitch, Co., Civ. No. 03-3159, 2005 U.S. Dist. LEXIS 11507, at *1
(D.N.J. June 9, 2005); or what the reviewing court construes as abusive interpersonal behavior,
see Matima v. Celli, 228 F.3d 68 (2d Cir. 2000). In Cruz v. Coach Stores, the Second Circuit
likewise held that physical violence, ostensibly designed to protest discriminatory practices, finds
no protection from Title VII. See Cruz v. Coach Stores Inc., 202 F.3d 560, 566 (2d Cir. 2000). In
other instances courts have found that repeated complaints to an employer’s customer about the
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regarding the reach of the FLSA’s anti-retaliation clause,230 and in
Lambert v. Genesee Hospital, the Second Circuit read the clause as
extending protection only to employees who file formal complaints with
the Department of Labor or in federal court.231 Nonetheless, six other
federal circuit courts have given the clause a vastly broader reading with
four circuits holding that employees’ “assertion of statutory rights” to,
e.g., minimum wage or overtime pay, triggers anti-retaliation
protection.232
Moreover, unlike the FLSA, Title VII has an administrative
exhaustion requirement.233 While courts have allowed private plaintiffs
in retaliation cases to seek preliminary injunctive relief—including
reinstatement—prior to exhausting administrative procedures,234 this
allowance is a judicially-crafted one and thus subject to doctrinal
debate.235 There are also unsettled questions regarding the remedies
available under the FLSA;236 the range of employees entitled to the
employer’s discriminatory practices are unprotected, see McNair v. Computer Data Systems, Inc.,
No. 98-1110, 1999 U.S. App. LEXIS 1017, at *1 (4th Cir. 1999), and that conducting an internal
survey about discrimination is not protected activity, see Harper v. Metro. Dist. Comm., 134 F.
Supp. 2d 470, 487 (D. Conn. 2001).
230 The clause makes it unlawful for any person to retaliate against any employee “because
such employee has filed any complaint or instituted or caused to be instituted any proceeding
under or related to this Act. . . .” 29 U.S.C. § 215(a)(3).
231 See 10 F.3d 46, 55 (2d Cir. 1993). The Genesee Hospital court offered no explanation as
to why the statutory language of filing “any complaint” is unambiguously equivalent to filing
“formal complaints,” as the court held. Rather, the Second Circuit’s reasoning was based on the
contrast between the FLSA language and the language in Title VII’s anti-retaliation clause. The
Second Circuit held that the broader “opposed any practice” language in the Title VII clause,
which it found to clearly “encompass[] an individual’s complaints to supervisors,” implies that
the narrower FLSA language excludes complaints made directly to employers. Id.
232 The Eighth Circuit, for example, has held that “Where the immediate cause or motivating
factor is the employee’s assertion of statutory rights, the discharge is discriminatory under §
215(a)(3).” Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975); see also
EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992); EEOC v. White & Son Enters.,
881 F.2d 1006, 1011 (11th Cir. 1989) (despite the fact that the plaintiffs “did not perform an act
that is explicitly listed in the FLSA’s anti-retaliation provision,” the plaintiffs’ “assertion of
rights” was protected under the clause); Brock v. Richardson, 812 F.2d 121, 123-24 (3d Cir.
1987) (where an employee’s activities are “necessary to the effective assertion of employees’
rights under the Fair Labor Standards Act, [he or she is] entitled to protection”); Love v. Re/Max
of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (“assertion of statutory rights” protected).
233 See 42 U.S.C. § 2000e-5(f)(1).
234 See, e.g., Wagner v. Taylor, 836 F.2d 566, 570 (D.C. Cir. 1987); Holt v. Cont’l Group, 708
F.2d 87, 89 (2d Cir. 1983); Sheehan v. Purolator Courier Corp., 676 F.2d 877, 881 (2d Cir. 1982);
McNail v. Amalgamated Meat Cutters & Butcher Workmen of N. Am., 549 F.2d 538, 542 n.10
(8th Cir. 1977); Berg v. Richmond Unified Sch. Dist., 528 F.2d 1208, 1211 (9th Cir. 1975),
vacated on other grounds, 434 U.S. 158 (1977); Drew v. Liberty Mutual Ins. Co., 480 F.2d 69, 72
(5th Cir. 1973), cert. denied, 417 U.S. 935-36 (1974); Bonds v. Heyman, 950 F. Supp. 1202
(D.D.C. 1997); DeNovellis v. Shalala, 947 F. Supp 557, 559 (D. Mass. 1996).
235 The statute explicitly allows the EEOC to seek immediate injunctive relief in federal court
when “prompt judicial action is necessary to carry out the purposes of this Act.” See 42 U.S.C. §
2000e-5(f)(2).
236 See supra note 219 and accompanying text.
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FLSA’s overtime protections is the subject of dispute;237 and the
statute’s definitions of “employer” have significant but largely untested
relevance for the ways in which workers employed in subcontracting
arrangements can seek protection from employment laws for their
organizational activity.238
As courts resolve these doctrinal issues, they will define the
parameters of employment law’s protection for collective action.239 But
irrespective of the resolution of these questions, the FLSA and Title VII
statutory regimes hold distinct comparative advantages over the NLRA
when it comes to insulating workers’ nascent collective activity from
employer interference. The provision of private rights of action and the
availability of injunctive relief allows workers and their lawyers much
greater control over the shape and pacing of procedures to remedy
retaliation. And enhanced damages—whether double or punitive—
invests employment law with far greater deterrent power than the
NLRA possesses. The fact that employment law extends to workers
excluded from NLRA coverage implies, of course, that the regime’s
insulating capabilities are available to precisely those workers who need
them the most.
C.
Generating Collective Action
On the account given so far, employment law may appear to be a
powerful but truncated version of labor law. That is, statutes like the
FLSA and Title VII may be able to galvanize and insulate collective
action, but only collective action aimed at achieving the single
immediate goal of securing rights granted by statute. Again, for
example, the FLSA galvanized and insulated the Danmar workers’
efforts to collectively secure overtime pay. However, should those
workers wish to demand wages above the minimum, or a health
insurance plan, or a just-cause dismissal policy, they would find no
legal shelter in any employment statute.
In this section, I argue that worker organizing and collective action
campaigns operate according to self-reinforcing dynamics of success
237 See generally Ross Eisenbrey, Longer Hours, Less Pay: Labor Department’s New Rules
Could Strip Overtime Protection from Millions of Workers (July 2004),
http://www.epinet.org/briefingpapers/152/bp152.pdf.
238 See Stone, supra note 50, at 260, 263.
239 While it is useless to attempt predictions, it is worth noting that courts have shown a
general willingness to read “individual rights” statutes, like Title VII and the FLSA, more broadly
than the NLRA. For a few recent examples, see IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) (FLSA),
and Burlington Northern and Santa Fe Railway. Co. v. White, 548 U.S. 53 (2006) (Title VII).
Whether this trend will survive attempts to rely on individual rights statutes to protect collective
action remains to be seen.
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and failure. That is, in the context of workplace organizing, success
breeds success and failure breeds failure. As such, the type of legal
protection for the first stages of organizational activity, which the
NLRA has proven incapable of offering but which employment law
provides, is critical to the success of collective action in the workplace.
Moreover, these self-reinforcing dynamics of success and failure imply
that by galvanizing and insulating nascent collective activity, law can
perform what I will call a generative function. That is, a legal regime
that facilitates success in the first stages of collective activity can be
expected to increase the likelihood that workers will engage in, and
succeed at, subsequent and more robust forms of collective action. By
the same token, a regime that fails to insulate these nascent stages can
be expected to generate a cycle of failure.
Here, again, I draw together a range of literatures—both qualitative
and quantitative—to make this argument. I present two bodies of
research, one regarding the psychological mechanism of collective
efficacy and the other regarding the dynamics of reciprocity, in partial
support of these claims. It is important to note at the outset the
limitations inherent in relying on research of this sort—particularly
experimental social-psychological research—to draw conclusions about
workplace organizing. Some of the results I report are derived from
game-theoretic experiments, conducted not with workers on the
shopfloor but with volunteers in a laboratory. While such experiments
suggest important conclusions about how efficacy and reciprocity affect
social interaction, they do not tell us definitively whether these
dynamics will manifest themselves at work.240 Nonetheless, taken in
conjunction with the qualitative studies cited below—and with the
appropriate cautions in mind—the dynamics illuminated by these
experiments help develop a model of the relationship between
individual rights and collective action.
1.
Collective Efficacy
Qualitative studies of labor organizing efforts bear out the intuition
that workers are likely to undertake collective actions only when they
have reason to believe that they can succeed. Accordingly, the studies
suggest that successful experiences with small-scale forms of collective
activity increase the likelihood that workers will undertake successive,
and more difficult forms of collective action. Rick Fantasia’s study of
240 For example, the reciprocity experiments I cite do not reveal how employer interference
might (or might not) impact worker behavior. It is possible, for example, that workers otherwise
inclined to reciprocate contributions to a collective endeavor might be dissuaded by employer
generosity, just as they might be dissuaded by employer retaliation.
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the union campaign at Springfield Hospital, for example, reveals that
workers’ involvement in small-scale and successful collective acts—
what Fantasia calls “mini-insurrections”—increased their willingness to
participate actively in full-scale union organizing activities.241 Fantasia
thus concludes that participation in incremental forms of successful
collective action gave the hospital workers “a courageousness” that can
be “a crucial component of union formation, especially in the face of
sharp employer resistance.”242 More recently, Mark Steven Freyberg
studied unionization at the Dodge Main facility and found that the
ultimate success of the campaign was predicated on workers’
participation in incremental collective acts which increased workers’
perceptions of collective efficacy.243 Similarly, in her study of two
contemporary labor movement mobilizations, Rachel Meyer observes
that it is necessary for organizers to “make it possible for people to first
succeed at small collective actions so that they become aware of their
power to make change.”244
These accounts are elucidated by theoretical research into the
social-psychological mechanism of efficacy. According to Albert
Bandura’s seminal work, individuals choose what types of endeavors to
undertake, how much effort to put into these endeavors, and how long to
persevere “in the face of obstacles or aversive experiences” based on
perceptions of their efficacy.245 Bandura also showed that people learn
to assess their efficacy according to their own past accomplishments246
and by observing the performances of “similar others” engaged in
similar activity.247 Both types of efficacy learning, moreover, operate
241 See FANTASIA, supra note 181, at 121-80. Outside of the worker organizing context, see
Eric L. Hirsch, Sacrifice for the Cause: Group Processes, Recruitment, and Commitment in a
Student Social Movement, 55 AM. SOC. REV. 243 (1990) (reporting on the “importance of . . .
collective empowerment processes in recruitment and commitment to protest”).
242 FANTASIA, supra note 181, at 121, 146.
243 Freyberg concludes that “[a]s collective efficacy fuels successful action, it reinforces
feelings of efficacy in actors and encourages the spread of such feelings to non-participants. This
in turn, encourages further, more widespread and intense collective acts. Thus collective efficacy
and collective action often form a mutually-reinforcing cycle.” Freyberg, supra note 181, at 223.
244 Rachel Meyer, The Irony of Power: Efficacy and Collective Action in Working-Class
Struggle 4 (2006) (unpublished manuscript, on file with author). Robert Penney reaches this
same conclusion in his study of union campaigns at four hospitals in the late 1990s, reporting the
view of the lead organizer on one of the campaigns, that “[w]orkers don’t organize unless they
believe they can win.” Robert A. Penney, Organizing the Unorganized: The Construction of
Consciousness and Action in Worker Mobilization 96 (unpublished Ph.D. dissertation, University
of Michigan, 2002) (on file with author). Thus, Penney finds that “collective action is dependent
on the perceived capacity of groups to act and their belief in the possibility of achieving their
goals.” Id. at 106-07.
245 Albert Bandura, Self-Efficacy Mechanism in Human Agency, 37 AM. PSYCHOLOGIST 122,
123 (1982).
246 Thus, “[e]nactive attainments provide the most influential source of efficacy information
because [they] can be based on authentic mastery experiences[;] [s]uccesses heighten perceived
self-efficacy[,] repeated failures lower it.” Id. at 126.
247 Bandura concludes that “[s]eeing similar others perform successfully can raise efficacy
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progressively: we develop a belief in our ability to complete
increasingly difficult tasks based on our ability—and by observing
others’ ability—to complete similar but less difficult tasks. As Bandura
puts it, “partial mastery experiences” predict “subsequent performance
of threatening tasks that [an individual has] never done before.”248 And,
just as perceived self-efficacy influences what people choose to do
individually, Bandura also showed that perceptions of collective
efficacy influence the range of projects that people undertake
collectively.249 As in the context of self-efficacy, moreover, perceptions
of collective efficacy are shaped both by an individual’s experience
with, and his observations of others’ experience with, similar collective
acts.250
Laboratory and field experiments lend support to Bandura’s
work.251 Most relevant here, Norbert Kerr has found—applying gametheoretic techniques—that a group’s previous success at solving a
collective action problem increases participants’ perception of the
group’s collective efficacy, and that these increased levels of perceived
efficacy increase the likelihood that participants will contribute to
subsequent and more difficult collective endeavors.252
Kerr’s
experiment involved a basic investment game,253 in which each
participant was told that he or she was replacing a single member of an
intact group that had played the game previously. Kerr found that
participants who joined groups that had succeeded in reaching the
expectations in observers who then judge that they too possess the capabilities to master
comparable activities.” Id. at 126-27.
248 Id. at 128.
249 “Perceived collective efficacy,” Bandura observed, “will influence what people choose to
do as a group, how much effort they put into it, and their staying power when group efforts fail to
produce results.” Id. at 143; see also ALBERT BANDURA, SELF-EFFICACY 477 (1997).
250 Thus, Bandura concludes that “[p]eople do not take upon themselves what they firmly
believe is not within their power to do, [and t]hey weigh heavily their perceived collective
efficacy to overcome opposing forces in judging the benefits they are likely to gain and the costs
they may incur by their actions.” BANDURA, supra note 249, at 484.
251 See, e.g., Gregory E. Prussia & Angelo Kinicki, A Motivational Investigation of Group
Effectiveness Using Social-Cognitive Theory, 81 J. APP. PSYCH. 187 (1996); Albert A. Bandura,
Perceived Self-Efficacy in Cognitive Development and Functioning, 28 EDUC. PSYCHOLOGIST
117 (1993); L. Hodges & A.V. Carron, Collective Efficacy and Group Performance, 23 INT’L J.
SPORT PSYCH. 48 (1992); Albert Bandura & Robert Wood, Effect of Perceived Controllability
and Performance Standards on Self-Regulation of Complex Decision-Making, 56 J.
PERSONALITY AND SOC. PSYCHOL. 805 (1989).
252 See Norbert L. Kerr, “Does My Contribution Really Matter?”: Efficacy in Social
Dilemmas, 7 EUR. REV. OF SOC. PSYCHOL. 209 (1996).
253 In such games, each participant in an n-person group is allotted an endowment of dollars.
Each member of the group must decide whether to keep the endowment or invest it. If the
participant invests the funds she surrenders them to the experimenter, but if the number of
investors exceeds a certain number (the “provision point”) then every group member, including
those who invested and those who did not, receives an investment payoff in the form of a
financial return. If the provision point is not met, all investments are surrendered and no return is
paid.
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investment goal in previous rounds reported substantially higher
perceptions of their group’s ability to resolve a more difficult round of
the investment game than did participants who joined formerly
unsuccessful groups.254 Kerr also found that with increased perceptions
of efficacy came a parallel and significant increase in the likelihood that
participants would invest in the new and more difficult round of the
game.255
2.
Reciprocity
Scholarly work on collective efficacy and its suggestion that
workplace organizing will follow self-reinforcing dynamics of success
and failure is supported by recent research into social cooperation and
reciprocity. To understand these developments, it is useful to begin
with Mancur Olson’s The Logic of Collective Action, which, until
recently, was the dominant theoretical analysis of individual behavior in
collective action settings.256 According to Olson, because individuals
act according to their self-interest in wealth maximization, they will not
make the costly contributions necessary to secure public goods, absent
externally imposed selective incentives to do so. Rather, individuals
will choose to free ride on the contributions made by others. Because
other group members are also wealth-maximizers, they also choose not
to contribute, and the result, Olson postulated, would be the severe
underproduction of collective goods absent external incentives for
participation.
Olson’s primary case study was the labor union, and union
organizing and participation long have been understood as presenting
classic collective action problems.257 If workers succeed in organizing a
union, all covered employees reap the benefits of whatever
improvements in wages, benefits, and working conditions come with
254 Kerr, supra note 252, at 220. All participants were told that in the first round of play, six of
the ten members of the group to which they had been assigned had decided to invest. Half of the
participants were then told that in the first round of play the provision point was five, and thus,
that their group had succeeded in earning the investment payoff in the previous round. The other
half of the participants were told that in the first round of play the provision point was seven, and
thus, that their group had failed to earn the payoff. The participants then played three different
versions of the investment game in which the provision point was set at four, eight, and an
undisclosed number. In simulations where the second round provision point was set at eight, 96%
of participants from the previously successful groups contributed, while only 58% of participants
from the previously unsuccessful groups did so. Id. at 221 fig. 7.5; see also Scott T. Allison &
Norbert L. Kerr, Group Correspondence Biases and the Provision of Public Goods, 66 J.
PERSONALITY & SOC. PSYCHOL. 688, 696 tbl.6 (1994).
255 See Kerr, supra note 252, at 220.
256 See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965).
257 See id.
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organization. But there are substantial costs involved in supporting
unionization (most obviously the high risk of employer retaliation),
particularly in the early phases of an organizing campaign. As such,
Olson’s Logic predicts that individual workers will choose not to
participate in union efforts and instead to avoid the costs of participation
by free riding on the efforts of others, hoping to reap the benefits that
accrue to all regardless of their participation in the organizational work.
Recent social science data, however, suggests potential flaws in
Olson’s logic. In collective action settings, this data suggests,
individuals do not act purely as self-interested wealth-maximizers.258
Rather, people act according to what Dan Kahan has named the “logic
of reciprocity.”259 That is, individuals base the decision about
participating in collective action for the production of public goods on
the decisions that other group members make. People reward
participation by their fellows by participating themselves; people punish
258 The basic failure of Olson’s Logic is suggested by laboratory experiments based on the
Prisoner’s Dilemma (or PD). In these experiments, two participants—A and B—are both allotted
$10. Each participant can either keep the $10 or transfer the money to the other participant. If
either A or B transfers her money, the experimenter triples the transferred amount such that the
recipient receives $30 from the transfer. In the experiment, A and B must decide simultaneously
what to do: if they both transfer their money to the other person, they will both end up with $30;
if they both keep their initial allotment of $10, they will both end up with $10. Crucially,
whatever the other subject does, it is always in each subject’s material self-interest to keep her
$10. Accordingly, Olson’s hypothesis would predict that A and B would keep their own $10,
even though both would be better off if both transferred their money. This is not, in fact, what
happens. As Ernst Fehr and Urs Fischbacher report, in one-shot PD experiments, cooperation
rates are often between 40 and 60%. That is, A or B transfers her $10 to the other subject, despite
the lack of materially self-interested reasons for doing so, between four and six times out of ten.
See Ernst Fehr & Urs Fischbacher, The Economics of Strong Reciprocity, in MORAL SENTIMENTS
AND MATERIAL INTERESTS: THE FOUNDATIONS OF COOPERATION IN ECONOMIC LIFE 165
(Herbert Gintis, Samuel Bowles, Robert Boyd & Ernst Fehr eds., 2005).
259 Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, 102 MICH. L.
REV. 71 (2003). In his earlier, pathbreaking book, Robert Axelrod showed that a “tit for tat”
strategy was the most successful approach to repeat plays of the prisoner’s dilemma game. See
ROBERT AXELROD, THE EVOLUTION OF COOPERATION (1984). A tit-for-tat strategy is a form of
reciprocity: it involves cooperating in the first round of the PD game, and then doing whatever the
other player does on each subsequent move. See id. at 20. Axelrod’s contribution is establishing
that this form of reciprocal behavior is the optimal wealth-maximizing approach to indefinitelyrepeating rounds of PD-type interactions. See id.; cf. Kahan, supra, at 73 (“If a rational wealth
maximizer anticipates that she will be engaged in repeat transactions with another identifiable
agent . . . , then her best strategy is to reward cooperation with cooperation and defection with
defection in a ‘tit for tat’ pattern.”). More recent research, like that cited here, reveals reciprocal
behavior even in one-shot or finitely-repeated interactions, and even when no “economic” gains
can be expected from the reciprocal acts. See infra text accompanying notes 262 through 268; see
also Herbert Gintis, Samuel Bowles, Robert Boyd & Ernst Fehr, Moral Sentiments and Material
Interests: Origins, Evidence, and Consequences, in MORAL SENTIMENTS AND MATERIAL
INTERESTS: THE FOUNDATIONS OF COOPERATION IN ECONOMIC LIFE, supra note 258, at 3-9;
Fehr & Fischbacher, supra note 258, at 153. Some further insight into this distinction can be
found in the literature on altruistic behavior in primates. See Marc D. Hauser, M. Keith Chen,
Frances Chen & Emmeline Chuang, Give Unto Others: Genetically Unrelated Cotton-Top
Tamarin Monkeys Preferentially Give Food To Those Who Altruistically Give Food Back, 270
PROC. ROYAL SOC. LONDON 2363 (2003).
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the failure to contribute by withholding their own contributions. As
Kahan writes, “Under the reciprocity theory . . . [i]ndividuals prefer to
contribute if they believe others are inclined to contribute, but to free
ride if they believe others are inclined to free ride.”260 The logic of
reciprocity accordingly suggests that the success of collective action
depends heavily on group members’ observations and perceptions
regarding the willingness of other group members to participate in
collective acts.261
Two laboratory experiments illustrate the operation of the logic of
reciprocity in ways pertinent here. First, Armin Falk, Ernst Fehr, and
Urs Fischbacher conducted an experiment based on the “moonlighting
game,” a two-player, two-stage game that functions as follows.262 At
the outset of the experiment, players A and B are given tokens. In the
first stage of the game, player A can choose to do nothing, to take
tokens away from B, or to give tokens to B. In the second stage, after B
is aware of what A has chosen to do in the first stage, B chooses an
action of her own: B can do nothing, take tokens from A, or give tokens
to A. If B chooses to sanction A by taking tokens from her, the sanction
costs B the same number of tokens she takes from A.
If Olson’s logic is correct, we would predict that A will not give
tokens to B in the first stage of the game, because A only incurs costs by
doing so. More important, according to Olson’s logic we would predict
that in the second stage of the game B will neither reward nor punish A
for A’s actions in the first stage, because any other choice would be
costly to B. The logic of reciprocity, on the other hand, predicts that
when A gives to B in the first stage of the game, B will give to A in the
second stage despite the personal costs B incurs for such a move.
Falk, Fehr, and Fischbacher found that, consistent with the logic of
reciprocity, when A gave B tokens in the first stage of the game, B
reciprocated by awarding A tokens in the second stage.263 In fact,
average and median rewards from B to A were increasing in the level of
transfer from A to B: the more that A gave to B in the first stage of the
260 Kahan, supra note 259, at 74. As Kahan puts it: “Individuals who have faith in the
willingness of others to contribute their fair share will voluntarily respond in kind. And
spontaneous cooperation of this sort breeds more of the same, as individuals observe others
contributing to public goods and are moved to reciprocate.” Id. at 72. The result is a “selfsustaining atmosphere of trust.” Id.
261 Thus, “[i]f people believe that others cooperate to a large extent, cooperation will be higher
compared to a situation where they believe that others rarely cooperate.” Fehr & Fischbacher,
supra note 258, at 167.
262 Armin Falk, Ernst Fehr & Urs Fischbacher, Testing Theories of Fairness—Intentions
Matter (Inst. for Empirical Res. in Econ., Univ. of Zurich, Working Paper No. 63, 2000).
263 Falk, Fehr, and Fischbacher ran 112 rounds of the game in two treatments. In the first
treatment, A chose her course of action, and B was aware that A’s choice was intentional. In the
second treatment, A’s choices were assigned by chance, and B was aware that A’s choice was not
intentional. See id. at 19 (tbl.A1).
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game, the more that B rewarded A in the second stage, even though
each token that B gives to A results in B’s loss of that token. Similarly,
the more tokens that A took from B in the first stage, the more B was
willing to sanction A in the second stage, even though each token that B
takes from A results in B forfeiting one of her own tokens.264
The second pertinent experiment was conducted by Fischbacher,
Fehr, and Simon Gächter and can be called the “contribution table”
experiment.265 This experiment involved a standard public goods game.
In such games, each of four individuals decides how to spend, for
example, $5. They are told by the experimenter that they can keep the
money or invest it in a collective project. The experimenter then
collects contributions from each player (without any player knowing
what the others have contributed), doubles the contributions, and then
divides the total equally among all four participants. Standard
assumptions of wealth-maximizing behavior predict complete free
riding by all subjects.266
264 In the second treatment, where A’s choices are assigned by chance, B’s rewards and
sanctions of A were much weaker. In fact, in this treatment, median behavior did not “show any
reciprocal pattern but completely coincides with the prediction of the self-interest model.” See id.
at 12. That is, when A did not intend to give tokens to B, B did not reciprocate by rewarding A;
and where A did not intend to take from B, B did not sanction A. Both sets of results are captured
graphically below. Here, the “I-treatment” indicates the first, or “intentional” treatment; the “NItreatment” indicates the second, “non-intentional” treatment:
265 See Urs Fischbacher, Simon Gächter & Ernst Fehr, Are People Conditionally Cooperative?
Evidence from a Public Goods Experiment, 71 ECON. LETTERS 397 (2001).
266 The group as a whole is best off if everyone contributes his or her full $5—in which case
the total investment yield is $40 and each participant ends up with $10. But while each $1
contributed results in $2 for the group, each $1 investment results in a $0.50 loss for the
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In the Fischbacher, Fehr, and Gächter experiment, each of four
individuals was given twenty tokens, and told that he or she could keep
them or invest them in the collective project. The participants were
asked to make two kinds of contribution decisions. The first was the
“unconditional contribution”: the standard decision about how many
tokens to invest without knowledge of other participants’ investment
decisions. The second decision was the “contribution table” decision:
here, participants filled out a table in which they indicated how much
they would contribute to the collective project based on each of the
twenty-one possible average contribution levels of the other group
members.267 After eleven iterations, the researchers found that in the
“contribution table” game the mean contribution was clearly increasing
in the average contribution of other group members: the greater the
postulated investment level of other participants, the more each
participant would choose to invest in the collective project even though
such investments had a negative economic return for the investing
participant.268
Laboratory experiments of this sort provide only limited insight
into the operation of real-world collective action dilemmas, but the
results here are suggestive of a basic but important dynamic. In these
studies, and others like them,269 cooperation and participation in the first
round of a collective interaction or endeavor increases the likelihood of
cooperation and participation in the next round. Similarly, defection
and lack of participation in the initial round results in a decrease in the
likelihood of participation in subsequent rounds.
If these experimental results are correct, and if the dynamics they
describe are operant in the context of workplace organizing,270 we can
contributor no matter what the other participants do. Thus, according to standard assumptions,
each individual would prefer to keep her $5, allow the others to invest their money, and reap
whatever public benefits flow from the contributions of others. See, e.g., John O. Ledyard, Public
Goods: A Survey of Experimental Research, in JOHN H. KAGEL & ALVIN E. ROTH, THE
HANDBOOK OF EXPERIMENTAL ECONOMICS 111, 112 (1995).
267 The game was played only once with each set of participants to ensure that the contribution
tables reflected pure preferences and were not impacted by considerations of reputation
formation.
268 See Fischbacher, Gächter & Fehr, supra note 265, at 400-01. There was heterogeneity
among the participants, with about 30% in fact taking a free ride—i.e., investing nothing
regardless of the investment levels of the other participants. A smaller group of participants
(14%) matched the investment decisions of others up to a certain level, and then reduced their
contributions. See id.
269 Field experiments reflect similar findings. As Kahan reports, reciprocal behavior has been
found in the decisions whether or not to give to charity, to litter, and to wait in line. See Kahan,
supra note 259, at 74 & nn.5-7.
270 One recent study shows workers exhibiting social preferences in the workplace. In
determining their own productivity levels, workers took into account the impact of their
performance on other workers’ pay. This study did not, however, specifically test the prevalence
of reciprocity dynamics among workers. See Oriana Bandiera, Iwan Barankay & Imran Rasul,
Social Preferences and the Response to Incentives: Evidence from Personnel Data, 120 Q.J.
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expect participation by workers in early phases of collective action to
increase the likelihood that other workers will participate in subsequent
phases of organizational effort. This is particularly true where the early
stages of collective action result in benefits that accrue to workers who
did not participate in those stages.271 In that setting, the logic of
reciprocity suggests that non-participating workers will be inclined to
reciprocate their participating coworkers’ efforts by contributing to
subsequent organizational and collective activity.
Together, then, the efficacy and reciprocity literatures suggest
tentative but important conclusions about employment law as labor law.
First, the nascent phases of workplace organizing are critical. Success
in these first stages of collective action sets in motion socialpsychological dynamics that can lead to further success, while failure at
these initial moments can lead to opposite dynamics and the end of
organizational efforts. Thus, and second, if law is able to galvanize the
first stages of collective activity and insulate that activity from coercive
employer interference, law, by allowing the logics of reciprocity and
collective efficacy to take root, may be capable of generating
subsequent and more robust forms of collective action even absent
additional legal guarantees. In this light, employment law’s ability to
galvanize and insulate nascent organizational activity implies that the
regime is not as truncated a form of labor law as first appears.272
ECON. 917 (2005). Fehr, Gächter, and Kirchsteiger report reciprocal behavior, including evidence
of strong reciprocity, in experiments on wage setting by employers and effort determinations by
employees. See Ernst Fehr, Simon Gächter & G. Kirchsteiger, Reciprocity as a Contract
Enforcement Device: Experimental Evidence, 65 ECONOMETRICA 833 (1997).
271 This outcome, of course, is precisely what occurred at Danmar and Phase II: in both
campaigns, the collective efforts of a relatively small number of workers resulted in substantial
financial recoveries for a much greater number of employees, many of whom did not participate
in the first round of collective action.
272 The focus of this Article is employment law’s ability to facilitate—to galvanize, insulate,
and generate—workers’ collective action. By revealing these capabilities, however, the
discussion here also provides a surprising insight into a potential course for improving
enforcement of employment law’s own substantive mandates. Namely, a burgeoning literature
reveals that by lowering information costs, aggregating preferences across workers, and reducing
the marginal costs of claiming statutory protection, a collective agent can increase the likelihood
of statutory enforcement. See generally Weil, Individual Rights and Collective Agents, supra
note 22; cf. Morantz, supra note 22. Accordingly, to the extent that it can be deployed to
facilitate collective action, employment law offers a means to close its own “enforcement gap,” as
the Danmar and Phase II campaigns illustrate. A full discussion is beyond the scope of this
Article but warrants further exploration.
Also important to note is the dynamic nature of a hydraulic development of this sort. If
workers and their lawyers continue to rely on employment law as a substitute form of labor law,
we should expect to see increasing, and increasingly sophisticated, resistance to such a strategy
by employers. It is too early to predict how these dynamics will unfold, but it is certainly
plausible that as workers, for example, press to expand the scope of the FLSA and Title VII antiretaliation provisions, employers will argue for a more restrictive reading of those clauses. See
supra text accompanying notes 216-227.
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CONCLUSION: TOWARD A “GREAT TRADE” IN LABOR LAW REFORM?
The National Labor Relations Act’s failures have left the
traditional legal channel for workers’ collective action blocked. Unable
to find an outlet through the NLRA, workers and their lawyers have
begun turning to employment law as an alternative pathway for their
organizational efforts. In the shadow of a dysfunctional NLRA, existing
employment laws like the FLSA and Title VII have the potential to
facilitate collective action among that segment of the workforce, and for
that range of workplace issues, encompassed by the substantive rights
employment law grants. Taking just the two statutes I have used as
examples in this Article, moreover, the remarkable breadth and depth of
statutory violations suggest that employment law holds this promise for
a substantial proportion of the nation’s employees.273 DOL surveys, for
example, report that 60% of nursing homes and 100% of poultry
processing facilities nationally are out of compliance with the FLSA,274
and recent litigation involving overtime violations paints a similar
picture. In January of 2007, for example, Wal-Mart agreed to pay more
than $33 million to resolve FLSA overtime violations involving 86,680
workers.275 With respect to Title VII, the EEOC received more than
30,000 race-based charges and more than 24,000 sex-based complaints
in 2004,276 and research suggests that the number of complaints filed
273 The FLSA protects workers who assert that their employer has violated the Act, and there
is no requirement that an actual violation occur before the anti-retaliation clause takes effect. See,
e.g., Sapperstein v. Hager, 188 F.3d 852, 857 (7th Cir. 1999). Similarly, Title VII’s opposition
clause requires that employees demonstrate a “reasonable belief” that the opposed practice was
unlawful, not that the employer actually violated the statute. See, e.g., Benoit v. Tech Mfg. Corp.,
331 F.3d 166, 174-75 (1st Cir. 2003); Trent v. Valley Elec. Ass’n, Inc., 41 F.3d 524, 526 (9th Cir.
1994). However, some decisions suggest a trend toward narrowing the range of beliefs
considered reasonable for purposes of this test. See, e.g., Clark County Sch. Dist. v. Breeden, 532
U.S. 268 (2001); see generally Hunter, supra note 229, at 87-92.
274 See U.S. DEP’T OF LAB., EMPLOYMENT STANDARDS ADMINISTRATION: NURSING HOME
2000
COMPLIANCE
SURVEY
FACT
SHEET,
available
at
http://www.dol.gov/esa/healthcare/surveys/nursing2000.htm; U.S. DEP’T OF LAB., FY 2002
POULTRY PROCESSING COMPLIANCE REPORT (2002). Lawsuits brought by the Department of
Labor against the meatpacking industry reveal a similar pattern of abuse. In 1998, a federal court
ordered Monfort, Inc. to pay more than $1.5 million in unpaid overtime wages to more than 5,000
employees, and in 1997, IBP, Inc. was ordered to pay $4.5 million in back wages to 23,500
employees. See U.S. DEP’T OF LAB., EMPLOYMENT STANDARDS ADMINISTRATION: U.S.
DEPARTMENT OF LABOR SUES EXCEL CORPORATION SEEKING COMPLIANCE WITH FEDERAL
OVERTIME
LAW
(1998),
available
at
http://www.dol.gov/opa/media/press/esa/archive/esa98304.htm.
275 See, e.g., Michael Triplett, Wal-Mart to Pay More Than $33 Million in Settlement with
DOL Involving Overtime, DAILY LABOR REP., Jan. 26, 2007, available at
http://pubs.bna.com/ip/bna/dlr.nsf/eh/a0b3y8p2x4; Steven Greenhouse, Among Janitors, Labor
Violations Go with the Job, N.Y. TIMES, July 13, 2005, at A1.
276 See U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM’N, RACE-BASED CHARGES FY
1992—FY 2007, available at http://www.eeoc.gov/stats/race.html; U.S. EQUAL EMPLOYMENT
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dramatically under-represents the extent of statutory violation.277 It is
also relevant that existing employment laws extend protection to many
workers whom the NLRA has failed most completely, and whom
traditional unions have been almost completely unable to reach. For
example, one researcher estimates that American labor unions represent
only 0.2% of all sub-minimum wage workers.278
But the key to employment law’s ability to function as labor law—
its provision of and robust protection for substantive workplace rights—
also signals a substantial limitation. Because existing employment laws
can perform their galvanizing, insulating, and generative functions only
in contexts where employees’ initial goal is the vindication of a
statutory right, all those workplace issues not specifically dealt with by
statute are outside the law’s reach. Again, extant employment law
offers no protection, for example, to workers whose initial organizing
efforts are directed toward securing a wage above the minimum, health
insurance, or a just-cause dismissal policy.
Nonetheless, the implications of this discussion extend beyond the
promises and limitations of existing employment statutes and invite an
inquiry into the best course for labor law reform. Primarily,
employment law’s capabilities suggest a means to foster collective
action more effectively, and they raise the question of how labor law
might be reordered to harness the generative capacities identified here.
OPPORTUNITY COMM’N, SEX-BASED CHARGES: FY 1997—FY 2007, available at
http://www.eeoc.gov/stats/sex.html. In this vein, a 2004 survey found that 33% of AfricanAmericans and 24% of Hispanics report not being offered a job because of racial discrimination,
and 31% of African-Americans and 21% of Hispanics report losing a promotion because of their
race. GALLOP ORGANIZATION FOR AARP, CIVIL RIGHTS AND RACE RELATIONS 55 (2004),
available at http://www.assets.aarp.org/rgcenter/general/civil_rights.pdf.
277 See, e.g., Laura Beth Nielsen & Robert L. Nelson, Rights Realized? An Empirical Analysis
of Employment Discrimination Litigation as a Claiming System, 2005 WIS. L. REV. 663, 685
(2005) (citing K.A. DIXON ET AL., JOHN J. HELDRICH CTR. FOR WORKFORCE DEV., A
WORKPLACE DIVIDED: HOW AMERICANS VIEW DISCRIMINATION AND RACE ON THE JOB 12-15
(2002), which reports that 34% of those who reported experiencing unfair treatment in the
workplace “did not do anything,” 19% “filed a complaint according to company procedures,” and
only 3% “sued the company”); Kimberly T. Schneider et al., Job-Related and Psychological
Effects of Sexual Harassment in the Workplace: Empirical Evidence from Two Organizations, 82
J. APPLIED PSYCHOL. 401, 406-08 & tbl.2 (1997), cited in Anne Lawton, Operating in an
Empirical Vacuum: The Ellerth and Faragher Affirmative Defense, 13 COLUM. J. GENDER & L.
197, 208 n.75 (2004) (reporting that only 13.3% of the women at private firms filed formal
complaints regarding the “worst” harassment they had experienced at work); see also Phoebe A.
Morgan, Risking Relationships: Understanding the Litigation Choices of Sexually Harassed
Women, 33 LAW & SOC’Y REV. 67, 68 (1999) (noting that according to a survey of federal
employees, 42-44% of working women experience legally actionable behaviors, while only 7%
file formal charges).
278 See Howard Wial, Minimum-Wage Enforcement and the Low-Wage Labor Market 21 (MIT
Task Force on Reconstructing America’s Labor Market Insts., Working Paper No. WP11, 1999),
available at http://mitsloan.mit.edu/iwer/tfwial.pdf. In the Los Angeles garment industry, in
which the DOL reports that 61% of contractors violate the FLSA, unions represent less than 1%
of the workforce. See Muneer Ahmad, Serving Market Needs, Not People’s Needs: The Indignity
of Welfare Reform, 10 AM. U. J. GENDER SOC. POL’Y & L. 27, 31 (2001).
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More broadly, employment law’s capabilities raise the possibility for,
and encourage future research into, what I will call the “great trade in
labor law reform.”
The conceptual premise for this “great trade” is that the NLRA
commits labor law to two projects. The first project—which has been
the focus of this Article—is a constitutive one, designed to foster the
collective organization of workers. The second project is relational,
regulating the interactions between workers and management. So, not
only does the NLRA intend to foster worker organizing, it mandates that
employers bargain with labor organizations once they form.279 The
statute also defines the forms of worker organizations entitled to (and
excluded from) this bargaining mandate, delineates the range of subjects
over which employers and workers must bargain, establishes the
moments at which such negotiations can and cannot take place, and
dictates the ways in which employers can involve themselves in
organizations of their own employees.280
This degree of regulatory intervention has injected a series of
rigidities into U.S. labor relations. Perhaps most obviously, the NLRA
is now mismatched to the production systems and human resource
models that U.S. firms have developed in response to the globalization
of product and labor markets.281 For example, the NLRA’s prohibition
on non-union forms of labor-management committees—drafted to ban
the company unions prevalent in the mid-1930s—now makes illegal
many of the work systems employers have adopted in order to achieve
productive flexibility.282
In the great trade, federal labor law would be redesigned to fulfill
labor law’s first, constitutive project far more effectively. Following the
model of employment law as labor law, this new regime would operate
by galvanizing and insulating the early stages of collective action in
order to set in motion dynamics of efficacy and reciprocity that can
generate subsequent organizational development. Such a new labor law
might, like the NLRA, offer workers a broad statutory right to act
collectively to improve their work lives. Or the new regime might
279
280
See 29 U.S.C. § 158(a)(5)(2000).
See, e.g., DICK’S SPORTING GOODS, NLRB ADVICE MEMORANDUM, CASE 6-CA-34821
(2006) (construing statute as mandating bargaining only with majority unions); Majestic Weaving
Co., 147 N.L.R.B. 859 (1964) (prohibiting pre-recognition bargaining); 29 U.S.C. § 158(a)(2)
(proscribing certain forms of employer “interfere[nce]” with labor organizations); Electromation,
Inc., 309 N.L.R.B. 990 (1992) (construing statutory proscription on managerial involvement in
labor-management committees); STONE, supra note 2, at 119-22, 124-26, 206-16; see generally
Barenberg, supra note 5.
281 See, e.g., Katherine Van Wezel Stone, Labor and the Global Economy: Four Approaches
to Transnational Labor Regulation, 16 MICH. J. INT’L L. 987 (1995); MICHAEL J. PIORE &
CHARLES F. SABEL, THE SECOND INDUSTRIAL DIVIDE: POSSIBILITIES FOR PROSPERITY 184-89
(1984); STONE, supra note 2, at 5-6.
282 See, e.g., Barenberg, supra note 5, at 879-93; STONE, supra note 2, at 87-119.
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expand the range of substantive, enumerated rights around which
workers have a protected right to organize.283 In either case, the new
regime would protect the right to collective action with employment law
remedies: private rights of action coupled with the availability of
preliminary injunctive relief and robust damages. The regime would
also deploy other mechanisms to engender reciprocity and efficacy,
including expanded opportunities for communication among workers.284
If this new approach improves labor law’s ability to generate
collective and organizational activity, the question is whether the regime
might then scale back the type of regulation that has defined labor law’s
second project for the last seventy years. By more successfully
fostering workers’ collective action, that is, might the new labor law
leave to the strengths and interests of the respective parties a large swath
of issues currently regulated by statute? Broadly, might we place
outside of labor law’s reach, for example, many of the ways in which
labor and management interact once workers have organized? Or the
permissible content and timing of labor-management negotiations? Or
the structures through which non-union employers and employees can
deal with one another? Or the form that such worker organizations must
take?
Substantively, such a trade has the potential to restore flexibility to
labor-management relations while reviving protection for workers’
efforts at self organization. And, pragmatically, the trade would offer
something to both “sides”: workers would get a law that more
effectively fosters collective action, while management would get a
more tailored labor law regime.
But the work of developing and assessing this new model remains
to be done. We do not yet know enough to predict, for example,
283 As I note below, many questions remain to be answered. One fundamental design issue is
whether, in such a great trade, workers would be granted a general right to organize, a la § 7 of
the NLRA, or an expanded—but nonetheless limited—set of substantive employment standards
around which they had the right to act collectively. If the new regime follows the NLRA model
and offers workers a protected right to engage in collective action around whatever issues they
deem appropriate (subject to a reasonableness requirement of some sort), the regime would be far
more expansive than one that limits protection to issues identified by statute. But it is also
possible that the galvanizing role played by law—which I describe above—depends in large part
on the provision of a substantive right, and thus reliance on a general right to organize would
leave this regime less capable of galvanizing collective action. On the other hand, expanding the
range of substantive employment issues protected by statute may be neither politically feasible
nor desirable. Either choice would involve costs and benefits, and resolution depends on further
investigation.
284 Although reciprocal behavior depends—at bottom—on the opportunity for interaction
between individuals engaged in a collective endeavor, see Kahan, supra note 259, the NLRA
provides employees only limited opportunities to communicate with one another. See, e.g.,
Barenberg, supra note 5, at 879-93; STONE, supra note 2, at 87-119. By expanding
communication opportunities, therefore, generative labor law could increase the possibilities for
reciprocity among workers.
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whether the generative capabilities that I have identified would in fact
lead to the development of “cohesive worker organization[s] capable of
effective representation of employee interests.”285 The statutory
mechanisms necessary to build such a regime require investigation, and
questions concerning the law’s reach are also unresolved: this Article
has stressed the importance of the early stages of collective activity, but
I have not yet addressed the specific level of organizational
development that workers should achieve before the law can stand
down. And there remain questions of institutional design, including
what role the NLRB would play in such a labor law, and what place
state and local law should have in the new regime.286
These unresolved questions—inherent in a legal reordering of this
kind—should not dissuade us from the endeavor. To the contrary, given
the clear pathologies of the National Labor Relations Act and the
promise of the regime I have outlined here, resolution of such questions
deserves to be the focus of future scholarship.
285
286
Weiler, supra note 35, at 34.
As I have suggested elsewhere, one promising approach is an experimentalist one in which
the NLRA is replaced with a federal generative labor law, while state and local governments
along with private parties are authorized to experiment with other components of labor policy.
See Sachs, supra note 7, at 394-97.