New Labor Initiatives Under Evolving Policy Considerations

In a conversation with The Regulatory Review, Kate Andrias of Columbia Law School discusses novel state worker-protection initiatives, federal preemption of state labor law, constitutional challenges to federal labor law, and obstacles to labor organizing.

Andrias explains how reform initiatives have advanced at the state level and why they have not taken hold at the federal level. These initiatives have included the establishment of worker standards boards—which can set minimum requirements for workers in particular sectors through collaboration among state actors, workers, and employers—and state constitutional amendments that reflect “fundamental commitments” to worker protection. Although the National Labor Relations Act (NLRA) preempts state regulation of collective bargaining, it does not preempt state worker boards and other state regulatory initiatives governing employment standards. Andrias also draws a parallel between the New Deal-era and today’s emerging constitutional challenges to the NLRA-established National Labor Relations Board (NLRB). Moving beyond legal reforms, Andrias identifies ways that organized labor can acquire greater political power. She then explains how the well-publicized move to achieve “abundance”—in transit, housing, clean energy, and infrastructure—can be “paired” with union-organizing initiatives and worker-protection initiatives.

Andrias is the Patricia D. and R. Paul Yetter Professor of Law at Columbia Law School. She is the co-director of the Columbia Law School Center for Constitutional Governance and the Columbia Labor Lab. She has experience as a union organizer with the Service Employees International Union and practiced political law at Perkins Coie. Andrias served as associate counsel to the President of the United States and chief of staff in the White House Counsel’s Office. She clerked for Justice Ruth Bader Ginsburg of the United States Supreme Court and Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.

The Regulatory Review is pleased to share the following interview with Kate Andrias.

The Regulatory Review: What are worker standards boards, what purpose do they serve, and what distinguishes them from more familiar regulatory bodies?

Worker standards boards—also called sectoral or industry committees or councils—are tripartite bodies that bring together workers, employers, and public representatives to develop minimum standards for a particular industry or occupation. Depending on their authorizing statute, they might address wages, benefits, scheduling, safety, training, or other working conditions. Unlike conventional administrative bodies, these boards give affected workers and employers a formal role in governance. Properly designed, boards can achieve several goals: They can raise labor standards across an entire industry, occupation, or economic sector; provide greater voice to workers and employers in how their industry runs; and make administrative process more democratic and participatory. They also can provide a focal point for collective action by workers—particularly in highly fissured, low-wage industries where worksite-by-worksite organizing is difficult.

TRR: Why have worker standards boards and pro-labor state constitutional amendments both advanced at the state and local level but not nationally?

It’s a question of political economy. For decades, labor law reform at the federal level has been stalled due to organized business opposition and the many veto points that pervade the legislative process. States and cities provide alternative political venues. Worker organizations that lack sufficient power at the federal level have considerable power in some state and local jurisdictions. In addition, most state constitutions are easier to amend than the U.S. Constitution, and state constitutions tend to allow more policymaking through direct democracy mechanisms, like ballot initiatives. That’s not to say that state-level reform is easy. Businesses have successfully mobilized against pro-worker reforms at the state level, and conservative states have often preempted progressive local government action. But American federalism creates multiple sites of contestation, allowing organized workers to make progress within the jurisdictions in which they have political power.

TRR: Several states have recently written worker protections into their constitutions. What are the practical implications of embedding these protections in state constitutions rather than establishing them by statute?

By constitutionalizing worker protections, such as the right to a fair wage or the right to engage in collective bargaining, a state declares that these are fundamental commitments rather than ordinary policy choices. That has an important expressive function. A constitutional labor right is also harder for a subsequent legislative majority to repeal and gives courts a textual basis for protecting workers’ rights. The Illinois Workers’ Rights Amendmentfor example, protects organizing and bargaining and bars legislation restricting those rights. But a state constitutional amendment cannot override federal law. As a result, the greatest practical bite of state constitutional amendments is in areas where state regulation is not preempted by federal law. In the area of labor, state constitutional provisions can set minimum employment standards for all workers and they can govern organizing and bargaining rights for workers excluded from the NLRA, like public employees, farmworkers, and gig workers, without raising preemption concerns.

TRR: Federal preemption doctrine sets outer limits on state labor policy. How much room does it leave for state worker standards boards, and where are they most legally vulnerable?

Federal labor law preempts most legislation governing organizing rights or collective bargaining among workers covered by the NLRA. But, as noted above, it does not preempt state employment legislation, for example, laws that set minimum wage and hour standards or prohibit discrimination. For this reason, state worker standards boards are generally not preempted by federal law: They regulate employment conditions, not organizing and bargaining among covered employees. That said, they must be designed to comply with basic due process requirements, and, if they cover workers classified as independent contractors, they must avoid antitrust preemption. They must also be designed consistent with any state constitutional law limitations governing state administrative agencies.

TRR: In a recent essayyou compare today’s constitutional challenges to the NLRB ) with the legal fights of the 1930s. What makes the current wave of challenges especially consequential?

The striking parallel is that powerful corporations are arguing not only that particular NLRB decisions are wrong, but also that central features of the labor-law regime are constitutionally illegitimate. Today’s claims mostly target the structure of the NLRB: removal protections of for administrative law judges; administrative adjudication under Article III and the Seventh Amendment; the extent of delegation; and the combination of functions within the agency. Their significance extends well beyond labor law. Success by corporate litigants could destabilize administrative adjudication and independent administration throughout the federal government. But labor is a particularly important target because the NLRA embodies a deeper challenge to concentrated private power—the proposition that workers are entitled to organize collectively and exercise democratic power at work. In that respect, as in the 1930s, the constitutional dispute is ultimately about the permissible distribution of economic and political power and the extent to which democratic processes can limit private concentrated power.

TRR: What is the “chicken-and-egg” dilemma that you and Benjamin Sachs identify, and what is the most promising way to overcome it?

The dilemma is this: Working people need organizing-enabling laws to build durable political power, but winning those laws generally requires them already to possess substantial political power. Ben Sachs and I identify three ways out of this “chicken and egg dilemma.” First, social movements can engage in mass mobilization or disruption that persuades legislators to enact reform. Second, they can enact reform in the state and local jurisdictions where they have sufficient power. Finally, depending on political alignments, they can shift their focus to particular branches or departments within the federal government. These strategies work best dynamically rather than as alternatives. For example, workers, tenants, or student-debtors can use disruptive power to win reforms at the state and local level—and then use those partial victories to organize more workers, tenants or debtors, accumulate resources, and build the power necessary for broader federal reform.

TRR: Much of the so-called abundance debate treats permitting rules, environmental review, and labor standards as obstacles to building. In a recent report with Alexander Hertel-Fernandez, you argue that these standards can help build economic and political power for union workers. What would an abundance regulatory agenda built around worker power actually look like?

The current abundance debate identifies a real problem: People need more housing, transit, clean energy, and infrastructure—and government should be organized to deliver those goods at scale. But many abundance proponents misdiagnose why we lack abundance; they blame labor and environmental standards and excessive process, while ignoring the role of concentrated economic interests in exploiting veto points and blocking public spending. Professor Hertel-Fernandez and I argue for a democratic abundance agenda that would ask not only, “How do we build more?” but also, “Who builds it, under what conditions, and who benefits from the outcomes?” We show that it is possible to achieve faster construction paired with good jobs, union training, strong labor standards, real community participation, and mechanisms that help workers organize unions. Our research uncovers concrete examples of how this can be achieved, including through mechanisms such as tripartite boards and community benefits agreements, which are enforceable agreements between developers and representative community organizations that secure benefits such as affordable housing, local hiring, training, and labor standards in connection with new development.