This week we’re featuring two discussions of Anne Alstott & Ganesh Sitaraman’s The Public Option:
Amanda Jaret & Sandeep Vaheesan –
Working people in the United States are fragmented by race, gender, ethnicity, religion, and status. We are also stratified by the law itself—specifically the extent to which we are entitled to labor and employment rights. Some workers have the right to take a new job when and where they want, to organize their workplaces, and to earn overtime pay. Others, due to their income, occupation, or location, have none of these rights. We live in a society in which, all too often, decent working conditions are treated as special dispensations, not fundamental rights.
Labor used to look different. In The Public Option: How to Expand Freedom, Increase Opportunity, and Promote Equality, Ganesh Sitaraman and Anne L. Alstott identify the Treaty of Detroit as the milestone in the development of more equitable political economy at midcentury. The Treaty of Detroit – a monumental 1950 agreement between the United Auto Workers and General Motors – established the postwar suite of workplace protections and employer-sponsored health and retirement benefits that would define unionized workplaces for most of the next three decades. Sitaraman and Alstott argue that the Treaty of Detroit stalled the development of what they term “public options” for, among other things, health care, childcare, and retirement benefits.
We wish to provide some additional context for the intertwined historical and legal developments that produced and perpetuated the postwar settlement. We agree that expanding public options is a worthy goal and share Sitaraman and Alstott’s skepticism about both the viability and desirability of reviving the Treaty of Detroit. However, the transformative social vision Sitaraman and Alstott articulate will neither be achievable nor effective without the enactment of basic labor and employment rights for all workers. Universal rights would foster broad solidarity among working people—a precondition for establishing and sustaining public provisioning of an array of goods and services and for preventing public options from merely entrenching existing inequalities.
The Treaty of Detroit and its benefits scheme were based on a vision of the family wage and a (typically male and often white) head of household providing health and retirement benefits for a spouse and dependent children. That scheme was the product of an uneven distribution of rights on the job dating back to the New Deal. As Darrick Hamilton and Kyle Strickland recently documented, since its enactment, the National Labor Relations Act has not covered agricultural and domestic workers. These exclusions effectively codified gendered and racialized class distinctions by excluding significant numbers of women and workers of color. Federal law allows employers to fire these workers for attempting to unionize, and only a few states have expanded these workers’ organizational rights.
The law limits the ability of other segments of the workforce to exercise their right to organize. Under current law, undocumented workers lack access to the remedies their coworkers can seek when their employers commit unfair labor practices. In addition, the same Southern lawmakers who sought the exclusion of agricultural and domestic workers exacted an additional concession in the 1947 Taft-Hartley amendments. By validating anti-union “right-to-work” laws then in effect in southern and western states and opening the door for similar laws in other states, Taft-Hartley gave official sanction to growing geographic disparities in workers’ ability to organize unions.
The qualified right to organize deserves close examination. In addition to the groups of workers mentioned above, since the passage of Taft-Hartley, workers classified as supervisors have been denied the right to organize. The definition of “supervisor” is open-ended and has been reinterpreted over time, but for the most part, courts have denied collective bargaining rights to a growing number of “supervisors.” Similarly, in the 1970s and 1980s, the Supreme Court expanded the scope of the NLRA’s exclusion of “managerial” employees. As Jean-Christian Vinel details in The Employee: A Political History, the expanding class of exempt supervisors and managers became especially significant as workplace hierarchies grew more complex and more jobs required workers to use specialized knowledge or exercise discretion. Because of these legal and historical changes, millions of workers have the legal burdens that come with a supervisory role without the workplace authority or voice that ostensibly justifies exempting such workers from statutory protection.
Independent contractors, also excluded from the NLRA’s protections, have no right to organize. Indeed, under existing interpretations of antitrust law, independent contractors who engage in concerted action to improve their terms of work may be “colluding” and engaging in an illegal restraint of trade. The Federal Trade Commission has brought cases against many professional associations for concerted activities. In recent years, the FTC has sued organists, ice skating coaches, and music teachers for their collective action.
As another illustration of how labor and employment rights are granted to some workers and withheld from others, consider state-level protections for workers against non-compete clauses. Maryland and New Hampshire enacted laws prohibiting non-compete clauses for low-wage workers but left other workers unprotected. Similarly, only a fraction of workers is entitled to overtime protection. Under the latest Department of Labor rule, workers making more than $35,568 and/or with (amorphous) management responsibilities are not entitled to overtime pay.
Sitaraman and Alstott argue that “because public options are universal, they apply to everyone, regardless of race, wealth, or geography.” We share Sitaraman and Alstott’s conviction that universality is essential for ensuring broad access to important goods and services that contribute to individual and collective flourishing. Sitaraman and Alstott gesture towards the importance of universal rights at work when they discuss the Social Security Act as a novel innovation because it covered all workers and was not means-tested. Inspired by these strands of their analysis, we wish to make the case for a broader array of universal legal rights on the job as a means of ensuring fairness in the workplace, reducing income inequality, and democratizing our politics and society.
The case for universal legal rights on the job is threefold.
First, universal rights recognize that individual workers lack bargaining power vis-a-vis their employers. Workers making $100,000 do not obtain a qualitative increase in bargaining power in labor markets solely because they are paid more than other workers. Even higher income workers with post-graduate degrees have little voice on the job, let alone say in the operations of the enterprise for which they work. Disempowerment on the job may be different in degree for workers based on income, but it is the same in kind. Universal rights are a better fit given the inequality of bargaining power between individual workers and their employers and rejects power as a binary in which one set of workers possesses leverage (on account of income or credentials) and another does not.
Second, universal rights prevent employers from manipulating legal categories to deprive workers of their rights. At present, employer misclassification of workers is a national epidemic. The Internal Revenue Service estimates that millions of workers are misclassified as independent contractors, and employers wrongly treat many other workers as supervisors. Similarly, both the Fair Labor Standards Act and the NLRA contain nebulous concepts of joint-employer status that have encouraged larger and more powerful employers to hide behind supposedly autonomous (and often undercapitalized) contractors or temporary employment agencies. With a system of universal rights geared toward ensuring that all workers have a voice on the job and are justly compensated for their work, employers could not misclassify workers as supervisors or independent contractors or mischaracterize their relationships with contractors to deprive workers of the right to organize or to receive overtime.
Third, universal rights can help overcome the divisions that frustrate solidarity and provide support for a broad working people’s coalition that wields economic and political power. One segment of workers would not view another group as somehow more privileged or entitled based on differential legal rights, and employers would have a more difficult time undermining incipient organizing efforts by pitting one group of workers against another. The history of the Affordable Care Act illustrates how segmentation of rights creates fractures. Americans who qualified only for subsidies to purchase (often inadequate) private health insurance have resented poorer peers who are entitled to better coverage through Medicaid. This means-testing fuels support for right-wing attacks on the social safety net. Universality reduces this threat and can foster the identification of shared interests and broad solidarity.
Sitaraman and Alstott lay out an ambitious plan for expanding the public provisioning of essential goods and services. It is a laudable vision that progressives should embrace. Achieving and preserving it will require more than better policies or more careful administration, which, as recent years have shown, deliver often fleeting gains. It calls for a far-reaching reassessment of the historical and legal consensus that has entrenched existing inequalities and for the formation of a broad political coalition prepared to successfully challenge the status quo. This type of coalition will be difficult to create and sustain so long as American workers are fragmented by unequal access to basic rights on the job.
Amanda Jaret is Assistant General Counsel for the United Food and Commercial Workers and previously worked as an attorney for former NLRB Chairman Mark Pearce from 2014 to 2019.
Sandeep Vaheesan is legal director at the Open Markets Institute.