By C.M. Lewis (@thehousered)
In August and September of 2019, Data for Progress covered Bernie Sanders’s Workplace Democracy Plan, a sweeping plan that set the bar high for presidential candidates who wish to court worker support and help grow the labor movement. (Check out parts 1 and 2 of the overview.) As our polling shows, the Sanders plan is broadly popular.
But if Sanders threw the gauntlet, then Elizabeth Warren is picking it up. Here we’ll present an overview of what’s different between the plans, what’s the same, and what’s absent in her “Empowering American Workers and Raising Wages” plan. Overall, Warren makes important and detailed additions to Sanders’s plan, but hers is also missing a crucial part: universal just-cause protection.
Graduate Assistants Are Workers
Nontenure-track (NTT) faculty are only one portion of the precarious workforce in higher education. While tenure-track employment declines as a share of the higher-education workforce, there is staggering growth in two categories: NTT faculty (which includes both adjunct and fixed-term employees) and graduate-student employees.
Unsurprisingly, growth in those two categories of workers drives down labor costs for colleges while offering far less employment security. Coincidence, right?
As I wrote for Strikewave, graduate unionization has been a political football since the Clinton administration, and the National Labor Relations Board recently proposed a rule to exempt graduate assistants from rights under the National Labor Relations Act. Warren has been a vocal proponent of graduate unionization, and wants to end the back-and-forth by codifying into law that graduate assistants are covered under the NLRA. This would solidify bargaining rights for private-sector graduate assistants nationwide.
Protecting Undocumented Workers
Capital relies on undocumented migration, and often isn’t too concerned with a path to citizenship. Undocumented immigrants frightened of workplace ICE raids, and legally uncertain of or exempted from labor protections, give bosses the power to drive down labor costs and control the workforce.
Besides: when ICE cracks down on undocumented workers, the workers are punished. The bosses aren’t.
Warren wants to amend the NLRA to expand protections for undocumented workers—a vital issue for both documented and undocumented workers. This is also crucial for all workers: by combating the ability of management to divide and conquer, it clears the way for collective action on the job.
Protecting Home Care Workers
Home care workers are a crucial and growing segment of the workforce. As writer Kim Kelly notes, care work will become the largest (and arguably one of the most strategically important) sectors of the economy in the coming years. It’s also a sector rife with shocking levels of worker exploitation.
Unsurprisingly, unionization among home care workers has been sharply contested on the state level, with union-backed Democratic governors expanding organizing rights only to face strong pushback from the Right. Warren proposes federal intervention to guarantee the right for home care workers to organize; her plan would also improve workplace safety, set ratios of staffing at nursing homes, and restore paycheck deduction for union dues.
Private Right of Action & NLRB Damages
One of the major weaknesses in labor law is enforcement. For example, employers found guilty of terminating employees for union activity face a clear penalty: back wages. However, it takes a long time for decisions to be rendered, meaning a union campaign may be dead and buried by the time the NLRB rules. Many employers conclude that stopping a union campaign is worth the potential cost of legal fees and back wages. To boot, addressing unfair practices can only be routed through the NLRB, which is itself a partisan football that careens between pro-worker and anti-worker majorities.
Warren seeks to address this through two major prongs. First, her plan allows the private right of action to address unfair labor practices, meaning it can be pursued through lawsuits filed in the courts. Second, her plan strengthens the power of the NLRB to assess damages and compensation, and to issue injunctions (1) forcing employers to bargain with employee organizations, and (2) stopping retaliatory firings of employees engaging in union organizing.
“Craft” or “Micro” Units
In 2011, the Obama administration’s NLRB found that small, specialized bargaining units were permissible. This means that a union could organize a small unit of workers, file for an election and win. By winning, they make it possible to “get their foot in the door,” something often referred to by labor unionists as “cracking” an employer. In a major example of this, UNITE-HERE Local 33 filed for micro units of graduate assistants at Yale University. Unfortunately, the NLRB tossed out the rule last month, discarding a micro-unit of mechanics at Boeing in Charleston, SC.
Warren proposes to restore this rule, appointing NLRB members in support of micro-units.
Lockouts: think of them as “boss strikes.” Instead of the workers walking out, the boss locks them out.
Lockouts are distinct from strikes because it means that, in the absence of a contract, the boss restricts their workers from working (and getting paid). There’s a clear and obvious downside: it’s a choice made by management with the intent of benefiting their bargaining position, rather than an expression of worker power. That said, there are some benefits for workers during lockouts that don’t apply to strikes under the existing labor-law regime; for instance, workers can’t be permanently replaced, and they can collect unemployment. This is part of why Wabtec workers insisted that the labor dispute in Erie, PA, was a lockout rather than a strike.
Warren’s plan would curtail lockouts through taking their use into consideration in awarding federal contracts, and through NLRB rulemaking and expanding the Board’s authority to enjoin lockouts.
This is a big one for the building trades, a segment of organized labor that tends to be more conservative and has cozied up to Trump. Shortages in construction trades are staggeringly high, in spite of comparatively good pay and benefits for union work in the construction industry.
Warren points back to her Economic Patriotism plan, which points to German worker-training programs as a model, and floats increasing federal funding for apprenticeships in the skilled trades from approximately $200 million to $20 billion. Moreover, she proposes to expand apprenticeship programs in growing sectors like home health care, nursing, and hospitality—three growing sectors with aggressively expanding union organizing.
This is part of Warren’s Accountable Capitalism plan which requires 40 percent worker-elected representation on corporate boards for companies valued at over $1 billion. It’s an idea that’s largely unfamiliar in the United States, but it has a long history in Europe. In particular, Warren’s plan is modeled on a law in Germany, which originated with center-right Christian Democrats under Chancellor Konrad Adenauer in 1951.
European Christian Democrats (not just in Germany) were strongly influenced by Catholic social thought, particularly the 1931 papal encyclical Quadregesimo Anno, which proposed “that the conflict between the hostile classes be abolished and harmonious cooperation of the Industries and Professions be encouraged and promoted.”
Warren wants to import it to the United States. According to Vox’s coverage of her Accountable Capitalism plan:
The conceit tying together Warren’s ideas is that if corporations are going to have the legal rights of persons, they should be expected to act like decent citizens who uphold their fair share of the social contract and not act like sociopaths whose sole obligation is profitability — as is currently conventional in American business thinking.
Warren’s solution: put workers, not just shareholders, on corporate boards.
Noncompete & No-Poach Clauses
Noncompete clauses are pretty straightforward: you can’t work in the same industry once you exit employment for a fixed period of time.
Intended to protect trade secrets, this type of policy has expanded dramatically. Infamously, Jimmy Johns required noncompete clauses—barring their ex-employees from working at, say, Subway—before abandoning them in 2016, after being sued. Obviously, noncompete clauses reduce workers’ individual bargaining power and keep them afraid of leaving bad employment situations, for fear they might not find new work.
Warren proposes to do away with noncompete clauses altogether, citing research indicating that Oregon’s ban on non-compete clauses raised wages for hourly workers.
In the same vein, she wants to get rid of no-poach clauses, which prohibit franchises from hiring employees of another franchise. She argues that no-poach clauses violate antitrust laws and drive down wages.
This is a key initiative that has been pushed successfully on the local level. Last-minute scheduling—especially for service workers—is a major problem for American workers, especially since many rely on more than one source of income and are responsible for the care of partners, children, and elders.
Under last-minute scheduling, scheduling can vary significantly from week to week, making income unpredictable. Scheduled for twenty hours one week? It might be zero the next. On top of that, you may get your schedule with little to no notice, making planning inordinately difficult.
Warren proposes to ensure that employers with over fifteen employees are required to provide two weeks’ advance notice of schedules, and to ensure that employees are protected from retaliation when they ask for schedule adjustments.
Violence is rife in the workplace, and not just in blue-collar work. The labor union UNITE-HERE has waged a high-profile and successful campaign to combat sexual assault in the hospitality industry, nurses’ unions have fought hard for workplace safety addressing common problems like needlestick injuries, and injuries are common for teachers and school support staff working closely with students who need specialized care.
Warren’s plan addresses two major spheres: workplace safety for social workers and for health care workers, ordering the Occupational Safety and Health Administration (OSHA) to issue a directive to employers to establish plans addressing workplace safety in those sectors.
This is a wonky one, and impacts everything from worker laws to bans on plastic bags. In general, it determines what level of government can and can’t legislate on different things. In the context of workers’ rights, it usually takes the form of state governments legislating that lower levels of government (municipalities and counties) can’t take action on certain items, like the minimum wage—one of the factors in Pennsylvania’s long-running stalemate on the issue.
It goes beyond that, though: the Economic Policy Institute has a nifty map of states’ preemption laws that restrict the ability of lower levels of government to legislate workplace rights, such as project labor agreements or prevailing wage. Notably, preemption has begun to expand into legislation relating to the “gig economy.”
Warren wants to curb preemption—but on examination, she’s not talking about the type of preemption that most bedevils workplace rights. The largest preemption problems for workers’ rights are roadblocks in state legislatures, not Congress, and Warren is specifically focused on federal preemption. Although she specifically points to ERISA and the NLRA as places where improvements can be made, specifics are lacking.
The reality is that there’s a lot less protection against employment discrimination than many think.
It starts with hiring. For example, Americans with a criminal record are often asked on employment applications whether they have a criminal record: a target of “ban the box” campaigns, which seek to ban employers from asking prospective employees whether they’ve been incarcerated. Unsurprisingly, this has a negative impact on employment prospects for formerly incarcerated individuals, contributing to repeat offenses and the ballooning problem of mass incarceration.
It doesn’t stop once you’re hired, though. This week, the Supreme Court heard a case about whether Title VII protections extend to sexual orientation and gender identity. In both of these areas, workers aren’t protected unless protected under local or state law, or protected by a collective bargaining agreement.
In other words, for a frightening number of Americans, the boss can fire you because you’re gay or trans, and you don’t have much recourse.
Warren proposes to tackle the problem in two ways. First, her plan would significantly expand workplace discrimination law through a series of pieces of legislation, which include expanding protections to unprotected classes and strengthening existing protections. Second, her plan would aggressively enforce the law by targeting corporate offenders.
What’s the Same:
Warren and Sanders align on most major points, and much of their plans is the same—an extremely positive sign for advancing progressive labor policy.
Ending the domestic-worker and agricultural-worker loopholes
Ending employee misclassification
Establishing that corporations and their franchises are joint employers
Expanding public-sector bargaining rights
Ensuring a federal right-to-strike
Banning right-to-work laws
Passing “card check” elections allowing employees to authorize a union through a majority signing union cards.
Ensuring first contracts
Addressing captive-audience meetings
Denying federal contracts to bad corporate actors
Banning permanent replacement of strikers
Allowing secondary boycotts
Raising the minimum wage
Addressing forced arbitration
Without recapping every single item (check out our pieces on the Workplace Democracy Plan, parts 1 and 2), it’s important to note that this is a far more expansive list of pro-labor policies than has been advanced by a top-tier candidate in any presidential election in generations. In other words, two of the three top candidates for the Democratic nomination are in agreement on the core planks of the biggest expansion of workers’ rights since the 1930s.
Just-Cause Protection When we polled the Sanders plan, we were surprised to find that this was—by far—one of the most popular components.
Just-cause employment would end the present, at-will standard that allows employers—absent any specific legal restriction, or absent a collective bargaining agreement—to fire their workers for any reason, or for no reason. Maybe the boss hates it when people wear denim jackets on denim jeans. Guess what? They can fire you for that.
Extending just-cause protection nationwide—which is the norm in much of the world—would be one of the most consequential changes in the history of American labor relations. Instead of firing or disciplining workers on a whim, the boss would need to demonstrate that it’s warranted. It’s hard to overstate how important it would be, and it has the benefit of being popular. Unfortunately, it’s the one part of Sanders’s plan not included in Warren’s.
So what’s the final tally?
There’s a lot to like about the Warren plan. She deals not only with major structural issues, but also with nitty-gritty policy details, which will help build worker power, ensure tough regulatory mechanisms, and put the brakes on American corporations exploiting their workers. Anyone left-of-center should celebrate that two major candidates for the Democratic nomination are competing to court the labor movement through ambitious, pro-worker agendas.
However, some proposals simply default to appointing a pro-labor NLRB, something that any Democrat can be expected to accomplish. In other areas, such as preemption, her plan gets into minutiae that don’t effectively address the larger problems tilting power toward management.
But for all its big positives and minor flaws, her plan has one glaring drawback: its abandonment of Bernie Sanders’s call for universal just-cause protection—a proposal that our polling shows commands majority support nationwide. It’s no exaggeration to say that just-cause protection is one of the most consequential parts of Sanders’s plan—one that would result in a massive shift of power in favor of American workers—and Warren’s plan suffers for its absence.
Make no mistake: both plans are bold visions and vastly improve on the limited incrementalism advanced for decades. It’s a tough call, but for all of Warren’s added details, we’re going to have to call this one for Sanders until she gets on board with universal just-cause protection.