“The shift of the US Supreme Court further right is an ominous sign for workers and labor in the United States,” Kent Wong, director at the UCLA Labor Center, told COURIER.
Today, the concept of a 40-hour work week, minimum wage laws, and rules outlawing child labor are an afterthought—an understood default. But a hundred years ago, they were considered radical propositions.
So much so that in 1905, the US Supreme Court decided that a law limiting the number of hours an employee could work per week to 60 was unconstitutional because long hours did not dramatically undermine the health of employees. Over the next three decades, the Court used its 1905 decision in Lochner v. New York as precedent to allow child labor to proceed, strike down minimum wage laws, and make it significantly harder for workers to organize unions.
It wasn’t until Franklin Delano Roosevelt was in the White House that the Court reversed course on all those issues and protected workers’ right to unionize. A few years later, the Court made another key decision in Wickard v. Filburn, giving the federal government more power to regulate the economy, which paved the way for safety requirements in workplaces to protect employees.
These rulings, along with the New Deal programs, the G.I. Bill, and post World War II-boom, ushered in a period of economic growth that helped build the now-mythologized “middle class”—for white Americans, at least.
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But over the past 50 years, the Court has drifted back to a more conservative, corporate-friendly approach, culminating with a series of rulings in recent years that have issued striking blows to workers’ rights.
Now, with the impending confirmation of Judge Amy Coney Barrett—whom the Republican-led Senate is expected to confirm along party lines on Monday evening—union leaders and labor experts are concerned that a 6-3 conservative court could further erode protections for workers.
“The shift of the US Supreme Court further right is an ominous sign for workers and labor in the United States,” Kent Wong, director at the UCLA Labor Center, told COURIER. “The conservative majority has already consistently ruled in favor of corporations and against the rights of workers, and we anticipate that this will get worse with this latest confirmation.”
Barrett’s Judicial Record Has Garnered Fierce Opposition
Even though she’s only served as a circuit judge for three years, Barrett has already come under fierce criticism for her record on labor and employment-related cases. “Judge Barrett has issued troubling employment discrimination rulings in a few cases that have come before her,” The Leadership Conference on Civil & Human Rights said in a statement.
In a 2017 case, Barrett voted to halt a lawsuit in which the US Equal Employment Opportunity Commission sued AutoZone after the company allegedly engaged in workplace racial segregation, assigning a Black worker to a specific store based on race—a violation of the Civil Rights Act.
In another case, Barrett authored an opinion finding that an employee being called the n-word at work did not necessarily constitute a hostile work environment. She acknowledged that it was an “egregious racial epithet,” but added: “[The plaintiff] can’t win simply by proving that the word was uttered. He must also demonstrate that [his supervisor’s] use of this word altered the conditions of his employment and created a hostile or abusive working environment.”
Barrett also issued a ruling that limited the enforcement of age discrimination laws, arguing that such laws protect only current employees, not outside job applicants. She has also made it easier for companies to deny gig workers overtime pay.
“Judge Barrett’s record demonstrates a clear disdain for workers’ rights, and her confirmation would push the most corporate-friendly Supreme Court in history further into the pockets of the wealthy elite,” AFL-CIO president Richard Trumka said in a statement. “Working people’s wages, health care, job safety, civil rights and freedom to form a union will all be undermined if she is confirmed. Judge Barrett is the wrong person at the wrong time.”
If and when she joins the bench, here are some of the issues she is likely to rule on that could affect America’s workers:
Unions and Bargaining Rights
Many experts agree, pointing to unions’ abilities to negotiate better wages, benefits, and working conditions. Studies have also shown that the three decades after World War II, the era of peak unionization, marked the most rapid decrease in income inequality over the past 90 years.
But beginning with the Reagan era, things began to change, as productivity continued to increase but wages began to stagnate for most Americans, but not the highest earners.
The rise of income inequality is not an accident, but has been, in part, the result of a decades-long war on unions by conservatives. In 1965, nearly one-third of workers belonged to a union. By 2019, only 10% of wage and salary workers were union members, according to the Bureau of Labor Statistics. Numerous studies have shown that the decline in union power has contributed to the growing gap between rich and poor.
The Supreme Court, for its part, has played a role in negating unions’ power. In 2018, the Court’s 5-4 ruling in Janus v. American Federation of State, County, and Municipal Employees, Council 31 found that government workers, such as teachers and firefighters, who choose not to join unions cannot be required to pay their share of collective bargaining costs. Put another way, the Janus decision allows government workers to quit the union and still enjoy the benefits of union representation—such as higher wages and better benefits—without having to pay for them. The ruling has put public unions across the country at risk of losing tens of millions of dollars of union dues, and with it, bargaining power.
The Court also ruled in 2018 that employees cannot join together to challenge violations of federal labor laws, such as wage theft or hours violations. Critics of the ruling said it would remove critical workplace protections for workers and make it more difficult for them to resolve problems.
Experts are worried that a 6-3 conservative court with Barrett on the bench could further erode union power.
“I do think that a number of core tenants that support workers in coming together to organize could be at risk with a conservative jurist who tends to take the view of corporate America,” Jenny Yang, a senior fellow in the Center on Labor, Human Services, and Population at the Urban Institute, told COURIER.
The threat could be especially grave to the public sector, Wong said, where more than 30% of workers are unionized, as opposed to only 6% in the private sector.
If the Court continues to chip away at union power, evidence suggests it will exacerbate the nation’s already crisis-level income inequality and have harmful impacts for most American workers.
Employees with Benefits or Independent Contractors Ripe for Exploitation?
Americans have worked as independent contractors for decades. The designation, however, has come under increasing scrutiny as gig companies and corporations like Google, Facebook, and Amazon have farmed out hundreds of thousands of jobs to independent contractors. In total, the share of workers with independent contractor income has risen by 22% since 2001, according to a 2019 study from the Treasury Department and Internal Revenue Service.
Experts say that companies have taken advantage of independent contractor status to save money, as they do not have to provide benefits or pay Social Security or Medicare taxes for gig workers, nor provide them with any protections.
Labor unions and gig workers have criticized the use of independent contractors, arguing it allows companies to exploit their workers and pay “poverty wages,” despite recording massive profits.
“You see these models increasing and what’s happening is more and more workers are without basic employment protections and social safety net protections,” Yang said.
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In 2019, California extended employee protections to gig workers with the passage of AB5. This year, Lyft, Uber, and Doordash and other companies are on track to spend nearly $200 million to encourage voters to approve a ballot measure to exempt them from these requirements. Proposition 22 would allow them to avoid giving their workers benefits such as minimum wage, overtime, paid sick days, and health care.
Even if Prop 22 fails, the companies could still use the courts to avoid designating their workers as employees. Uber and Lyft have filed a lawsuit, arguing AB5 does not apply to them. An appeals court ruled against the companies last week, but that case could theoretically still make its way to the Supreme Court, where a 6-3 conservative bench could deal a huge blow to the labor movement.
“I would have tremendous concerns if AB5 were challenged in court and it made its way to the US Supreme Court, given their track record,” Wong said. “Corporate America is looking at this very closely. If Uber and Lyft and DoorDash and other corporations are successful, this could pave the way for an increasing use of the term ‘independent contractor’ to undermine worker rights and labor standards.”
In other words, the Court could create a roadmap of sorts for states and companies to further entrench gig workers as permanent contractors, depriving them of benefits and protections.
The Possibilities to Rule Against Workers Are Endless
Another concern Wong raised under an even more conservative Supreme Court is workplace health and safety standards, which have been a controversial issue during the pandemic. Companies and the Trump administration have come under scrutiny for not doing enough to protect workers.
“We have seen through the pandemic where many essential workers are being exposed to hazardous conditions on the job,” Wong said. “As a consequence—especially in industries where there are high concentrations of workers of color and high concentrations of immigrant workers—we have seen a huge spike in the workers contracting coronavirus on the job.”
The high number of cases and deaths in workplaces such as grocery stores and meat-packing plants have spurred a wave of lawsuits—one of which could eventually be considered by the Supreme Court.
“The US Supreme Court, as the ultimate authority in adjudicating issues with regard to workplace safety, could play a very damaging role in terms of securing the health and safety standards for workers,” Wong said.
The Court could also make it more difficult for workers to bring discrimination cases, raising the threshold for the kind of evidence that they need to provide to pursue a complaint.
“There have been some conservative Supreme Court decisions that have heightened the standard for workers to access the courts. These decisions do not account for the large information asymmetry that exists between workers and employers,” Yang said. “Often workers do not have access to all the information a court may require for workers to even file a complaint, so if you raise the threshold of what a worker needs to know in order to even allege discrimination, you can close the courthouse door to many workers.”
The Court’s decisions in Bell Atlantic Corp. v. Twombly in 2007 and Ashcroft v. lqbal in 2009, for example, made it easier for employers to dismiss workers’ complaints at the beginning of cases. In a paper she’s currently writing, Yang points out: “The end result is that courts dismiss complaints by many workers alleging employment discrimination, and many workers do not even file a lawsuit, because they do not have sufficient information to survive a motion to dismiss.”
Since many judges tend to come from corporate settings where they mostly defended companies from cases, they don’t necessarily understand the difficulties faced by workers, Yang said. “There’s huge power imbalances between employers and workers and sometimes judges who’ve only been on the side of power don’t understand that hardship.”
As a result of these various barriers, employment discrimination plaintiffs face an extremely low success rate in pretrial decisions; during the period of 1979-2006, employment discrimination plaintiffs won less than 4% of pretrial judgments in federal court, while other plaintiffs won 21%.
With Barrett on the bench, at least one thing is clear: That imbalance would likely grow. “Under the current trajectory,” Wong said, “I anticipate even a stronger bias toward corporations and hostility to workers.”