The History and Future of U.S. Labor Law: Conversations to Shape the Future of Work

Over the last year, media headlines have been filled with stories of workers from various industries on strike and attempting to unionize. The roots of these efforts lie with workers in the 1800s and early 1900s who first attempted to organize and used strikes to protest low wages and poor working conditions. Those early labor movements contributed to the passage of the National Labor Relations Act (NLRA) of 1935, which gave workers the right to organize into unions and made it the official policy of the U.S. to encourage collective bargaining. Union membership surged after the passage of the NLRA and peaked at 35 percent of wage and salary workers in 1954. The NRLA had less of an impact for women and people of color, however, whose main occupations in agricultural and domestic work were deliberately excluded from the law, exclusions that still negatively affect millions of workers today. The impact of NRLA in supporting collective bargaining has also waned over time. Today, only 10 percent of wage and salary workers belong to a union including 34 percent of public employees and six percent of workers in the private sector, very low compared to most OECD countries though unionization is declining globally as well.

The future of work and job quality rests in part on workers having agency and some ability to influence their work and workplace. The NLRA provides the legal foundation for workers’ right to exercise that agency. As we look to shape the future of work, what lessons can we learn from the NLRA’s history, impact and effectiveness today?

Join the Aspen Institute Economic Opportunities Program for a discussion on Worker Power and the National Labor Relations Act, the first conversation in our five-part series, ”The History and Future of U.S. Labor Law: Conversations to Shape the Future of Work.“ Featuring:

— The Honorable Marty Walsh, U.S. Secretary of Labor (opening remarks)

— Roy Bahat, Head of Bloomberg Beta

— Jennifer Epps, Executive Director, The LIFT Fund

— Dr. Annelise Orleck, Professor of History, Dartmouth College

— Charisse Jones, Economic Opportunity Reporter, USA Today (moderator)

The Fair Labor Standards Act (FLSA) of 1938 established the federal minimum wage and overtime pay, created a standard work week, and prohibited children’s employment in dangerous conditions. Leaders passed the FLSA not only to ensure “a fair day’s pay for a fair day’s work,” as FDR said, but also to end a race to the bottom on wages and working conditions that were driving business competition.

The law raised wages for hundreds of thousands of workers at the time, but also deliberately excluded a number of industries, which uncoincidentally employed a large number of people of color and women. These exclusions continue to negatively affect opportunity for these groups today. The FLSA has suffered some additional wear and tear in recent decades. The failure of the minimum wage to keep pace with inflation, weak enforcement on issues such as wage theft and misclassification of independent contractors, and a failure to update the tipped minimum wage have minimized the rewards of work for many workers. While federal policy has been slow to respond, some state and local governments and businesses are addressing some of the FLSA’s weaknesses by increasing wages and improving job standards in sectors such as domestic and gig work, among others. What innovations can create a more just economy that rewards work fairly? What lessons can we learn from the FLSA and its history to help us restore the commitment to a fair day’s pay for a fair day’s work?

Join the Aspen Institute Economic Opportunities Program for a discussion on “The Rewards of Work: Lessons from the Fair Labor Standards Act,” the second conversation in our five-part series, “The History and Future of U.S. Labor Law: Conversations to Shape the Future of Work.” Featuring:

— Rebecca Dixon, Executive Director, National Employment Law Project

— Michael Lastoria, Co-Founder and CEO, &pizza

— Teresa Romero, President, United Farm Workers

— Ben Zipperer, Economist, Economic Policy Institute

— Noam Scheiber, Labor Reporter, The New York Times (moderator)

People of color, women, LGBTQ people, immigrants, people with disabilities, and people from various faith traditions have been at the forefront of the long march toward civil rights and equality in the U.S. A significant part of this struggle has been the fight to be free from discrimination in employment and harassment in the workplace. That battle has been fought in factories and farms, mines and construction sites, hotels and restaurants, warehouses and offices, hospitals and every other workplace imaginable. The marches and protests have inspired generations and delivered landmark victories such as Title VII of the Civil Rights Act of 1964.

Title VII of the Civil Rights Act outlawed harassment and discrimination in employment based on race, color, national origin, sex, and religion and created the Equal Opportunity Commission. While the American workforce and many industries and occupations are more diverse in many respects than they were 60 years ago, the goal of equal opportunity has not been realized. Low-wage workers who provide care, food, and services continue to look much different than those in the corporate boardroom and the people who often rely on their hard work. Wage gaps across gender and racial groups persist while discrimination and harassment, in their evolving forms, continue to bar many people from opportunity and make many workplaces unsafe. The march toward equality continues, though, and represents a broader and more diverse coalition than ever before. As we move forward on that march, what can we learn from the history and legacy of Title VII that can help us finally live up to the promise of equal opportunity?

Join The Aspen Institute Economic Opportunities Program for a discussion on ”Title VII of the Civil Rights Act: Fulfilling the Promise of Equal Opportunity“, the third conversation in our five-part series, ”The History and Future of U.S. Labor Law: Conversations to Shape the Future of Work.“ Featuring:

— Robert Barea, Vice President, Culture, Diversity & Engagement, Prudential Financial, Inc.

— Olatunde Johnson, Professor, Columbia Law School

— Thomas Saenz, President and General Counsel, MALDEF

— Tanya Wallace-Gobern, Executive Director, National Black Worker Center

— Mekaelia Davis, Program Director, Inclusive Economies, Surdna Foundation (moderator)

President Nixon signed the Occupational Safety and Health Act (OSH) in 1970 following decades of workplace injuries and fatalities at mines, factories, construction sites, and other industrial settings. OSH is meant to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance. The law has been a tremendous success in protecting workers and has had a considerable impact on workplace safety. Workplace fatalities have dropped by 65% since 1970, and workplace injuries and illnesses have dropped by 67% in about the same amount of time.

Even with this remarkable progress, challenges remain in protecting workers in traditionally dangerous work, including construction and agriculture, as well as industries such as retail and health care. The COVID-19 pandemic not only underscored the need for worker protections across sectors, but also demonstrated the need for the government to play a role in setting standards, monitoring workplaces, enforcing regulations, and educating and training employers and employees on risks and risk prevention. The rise in temporary work, the gig economy, and the use and misclassification of independent contractors who are excluded from OSH has created additional challenges in protecting workers. And as the pandemic illuminated, access to safe workplaces is not shared equitably. Black and Latino workers suffer disproportionately from dangers in the workplace and are more likely to die on the job. How do we address these inequities and build a safer workplace for all workers? What can we learn from the history and implementation of OSH?

Join the Aspen Institute Economic Opportunities Program to explore the answers to these questions in a discussion on ”The Occupational Safety and Health Act: The Past and Future of Workers’ Well-Being,“ the fourth conversation in our five-part series, ”The History and Future of U.S. Labor Law: Conversations to Shape the Future of Work.“ Featuring:

— Magaly Licolli, Executive Director and Co-Founder, Venceremos

— Dr. David Michaels, Epidemiologist and Professor, The George Washington University School of Public Health

— Saket Soni, Executive Director, Resilience Force

— Jon Woodsum, President, Barton Malow Company

— Andrea Hsu, Labor and Workplace Correspondent, NPR (moderator)

Work just isn’t what it used to be. New technology, increased global competition and trade, the growth of gig work, shifting demographics, the rise of shareholder capitalism, and other factors have reshaped work, economic opportunity, and the employee-employer relationship. In contrast, our system of labor laws has changed very little. Laws designed decades ago have proved inadequate to protecting workers’ well-being in this altered context and the outcomes for many working people across the US have been devastating. Despite an increasingly productive economy, wages have flatlined in recent decades and union representation has fallen dramatically. Too many jobs provide compensation that is insufficient to meet basic living expenses, offer few opportunities for growth and economic advancement, and afford no system through which working people can address problems in their workplace, leaving too many hardworking people feeling disrespected and disposable. These conditions contradict ideals of individual freedom, equity, equal opportunity, and the American Dream.

But workers are not sitting idly by. A new generation of worker organizers is now demanding better. Workers organizing against unsafe and low paid work led to a sweeping set of worker protections and rights being passed in the 1930s. Those laws, that collectively became known as a workers’ constitution, represented a first step towards a workers’ bill of rights. Will today’s efforts lead to a renewed and expanded commitment to working people sharing in the country’s economic success? What would a workers’ bill of rights look like today? What will be needed to make a broad vision of workers’ rights reality for America’s working people?

Join the Aspen Institute Economic Opportunities Program to explore the answers to these questions in a discussion on ”A Workers’ Bill of Rights: What We Want and How to Get There,“ the fifth and final conversation in our five-part series, ”The History and Future of U.S. Labor Law: Conversations to Shape the Future of Work.“ Featuring:

— Daniel R. Porterfield, President and CEO, The Aspen Institute (opening remarks)

— Jaz Brisack, Barista and Organizing Committee Member, Starbucks Workers United

— Don Howard, President and CEO, The James Irvine Foundation

— Linda Nguyen, Chief of Staff, United Food and Commercial Workers Local 770

— Ai-jen Poo, President, National Domestic Workers Alliance

— Dorian Warren, Co-President, Community Change; Co-Founder and Co-Chair, Economic Security Project (moderator)

The Economic Opportunities Program’s Opportunity in America discussion series has moved to an all-virtual format as we all do what we can to slow the spread of COVID-19. But the conversations about the changing landscape of economic opportunity in the US and implications for individuals, families, and communities across the country remain vitally important. We hope you will participate as we bring our discussions to you in virtual formats, and we look forward to your feedback. Learn more.

We are grateful to Prudential Financial, Walmart.org, the Surdna Foundation, the W. K. Kellogg Foundation, and the Mastercard Center for Inclusive Growth for their support of this series.

The Aspen Institute Economic Opportunities Program advances strategies, policies, and ideas to help low- and moderate-income people thrive in a changing economy. We recognize that race, gender, and place intersect with and intensify the challenge of economic inequality and we address these dynamics by advancing an inclusive vision of economic justice. For over 25 years, EOP has focused on expanding individuals’ opportunities to connect to quality work, start businesses, and build economic stability that provides the freedom to pursue opportunity. Learn more.