The justice system plays an integral role in interpreting and enforcing the rules that govern work. This past Supreme Court term saw several high-profile cases in which the court settled labor issues. The Janus decision, with its implication for public sector unions, and the Epic Systems decision, regarding the use of private arbitration, drew attention in particular, and the impact of these rulings will be felt by every worker in the United States.
This is the reason the Aspen Institute Economic Opportunities Program is examining the role that courts play in shaping the world of work. In September, the program gathered a panel of legal and economic scholars and worker advocates to discuss the most consequential labor rulings decided by the courts this year.
Moderator Lauren Weber, workplace reporter for the Wall Street Journal, reminded the audience that we exist in a “bifurcated labor market” where high- and low-wage workers have very different relationships to employers and the economy. Sarita Gupta, co-director of Jobs with Justice, noted that this is especially true for women and people of color who were not included in early labor legislation and now have trouble participating in collective bargaining efforts.
“For decades, there have been large swaths of workers who have been excluded from being protected under basic labor laws,” Gupta said. “And right now, some of the growth sectors we see in the economy are also the very sectors where these exclusions continue to play out.”
Gupta believes that workers can only gain power once they are able to demand the right to collectively negotiate with those in power. Oren Cass, a senior fellow at the Manhattan Institute, agreed. “Workers being able to bargain collectively is something everyone should be in favor of,” he said. “That’s not a liberal or conservative idea.”
Cass’s ideas begin to diverge when it comes to the future of unions. He wants to stop talking about whether there should be more unions or fewer, and start a conversation about what different unions could look like.
Cass added that the court system is not supposed to be a policy-making apparatus. Our focus must return to the legislature, where policy debates about the labor system can actually occur.
Evan Starr, assistant professor of management and organization at the University of Maryland, shared research that roughly one in five American workers is bound by a non-compete agreement, including employees in low-wage jobs. Starr found that workers in states that enforce noncompete clauses earned 5 percent less over time than workers in states that do not.
While economists say that workers can move freely and earn more in a competitive market, Starr noted that over the past 10 to 15 years labor markets have not really been competitive.
Christine Owens, executive director of the National Employment Law Project, expressed concern that it is now much harder to bring forward class action cases. If overwhelming majorities of private sector employers are requiring workers to waive their rights to go to court as a condition of employment, then there is no meaningful choice, she said.
Still, Owens remains hopeful.
“I don’t want to give up on the courts,” she said. “I think courts can do their job and push legislators to act differently and help encourage collective action on the part of ordinary people.”