An Integrated Work Law

Workers and their advocates have recently experimented with various hybrid approaches to exercising their rights, combining traditional labor and employment laws with antitrust law, consumer law, and other doctrines. This raises the concept of what one of us has called an “integrated” work law. An integrated work law is both an empirical descriptor of the large swath of laws that regulate work and an assertion that sometimes another body of law can supplement or even take the place of traditional labor and employment law, at least when those laws leave workers inadequately protected. This approach is not new. Reforms dating back to the New Deal combined seemingly disparate legal doctrines to protect workers in all of their capacities as workers, consumers, and market and civic participants.

From Jobs for Life to “Fissured” Labor

When Congress passed the National Labor Relations Act (NLRA) in 1935, the typical workplace scheme was fairly simple. There were the officers who made executive decisions, the managers who oversaw operations, and the employees who were laboring on the shop floor. The dominant mode of income was through wages earned as an employee, and the mutual expectation was that the employee would hope to stay with the firm long-term. The statutory definitions of terms like “employer,” “employee,” and “supervisor” were shaped accordingly. What the NLRA’s drafters likely could not have foreseen at the time was how radically this familiar scheme would transform as the United States careened into the twenty first century.

Now, we live in a world where the employment relationship is all but straightforward. Massive conglomerates have swallowed up smaller competitors, creating ambiguities as to who, if anyone, is the employer of a given worker. Labor economist David Weil has called this the “fissuring” of the workplace. Firms outsource, offshore, and subcontract labor, and frequently misclassify wage-earning employees as independent contractors who receive none of the benefits that attach to the employment relationship. Moreover, the explosion of franchising has allowed firms to profit from their branding while shielding themselves from liability for the employment law violations of their franchisees. And many firms no longer feel the need to cultivate skilled long-term employees as a model for financial success.

The Current State of Work Law

Who can these fissured workers unionize with? Who can they seek relief from if they face abuse in the workplace? Because only formal “employees” are covered under the NLRA and employment laws like the Fair Labor Standards Act (FLSA), and Title VII of the Civil Rights Act of 1964, a growing number of workers are losing essential legal protections. Thus, the NLRA and other foundational workplace laws have not caught up with the realities of the modern fissured workforce, much of which was influenced by firms seeking to avoid liability under those very laws.

Workers’ Advocates and Regulators Using Other Legal Regimes

If workers and the labor movement were allowed to exercise their rights under only one set of laws, this would be highly problematic. Nevertheless, workers, their advocates, and government regulators have turned to other doctrines outside the traditional realm of labor and employment law, making particular use of laws addressing competition and consumers’ rights.

For example, Lina Khan’s appointment in 2021 as Chair of the Federal Trade Commission (FTC) has heralded a new era of pro-labor antitrust pursuits. In Chair Khan’s formulation of antitrust law, employer suppression of labor competition is an antitrust concern within the scope of the FTC’s mandate to address unfair methods of competition. It’s with this understanding that the FTC recently announced a new rule banning non-compete agreements and their functional equivalents, such as Training Repayment Agreement Provisions (TRAPs) that effectively keep workers from leaving before a set period of time due to repayment obligations for ostensible training costs. This is a sea change in a country where close to one in five employees are subject to non-compete agreements. Once, antitrust laws were used to criminalize labor activity. Now they’re being marshalled to protect workers from employer attempts to restrict worker mobility. And, importantly, the FTC rule covers workers like independent contractors who are not classified as formal employees and are thus unprotected under traditional labor and employment laws.

Consumer law is another emerging field of worker protection. Unfair and deceptive acts and practices (UDAP) laws, enacted primarily to protect end-user consumers, are also now being used to protect workers as consumers when a firm sells its workers services like financial products, training, and marketing assistance. For instance, TRAPs are often deceptively advertised to medium- and low-wage workers as providing transferable skills, yet offer minimal training and impose high “quit fees” if the worker leaves in the first few years. Many employees are thus locked into these jobs for years.

Workers are pushing back, though, combining traditional employment and consumer law claims. For example, former PetSmart groomer BreAnn Scally used both California employment and consumer protection laws to challenge PetSmart’s alleged demand for $5,000 to pay back a TRAP for its “Grooming Academy” that she claimed was little more than a few sessions and then regular work grooming pets. She argued that if the training was primarily for PetSmart’s use, state employment laws should require that PetSmart pay for it and, if it was primarily for BreAnn’s personal use, state UDAP laws should declare the TRAP void. In essence, BreAnn asserted, the company could choose which body of law should apply, but it would not be able to escape liability altogether. The FTC has also turned its attention to using its UDAP authority to protect gig workers, who are often misclassified as independent contractors and face deceptive pay policies.

Workers’ Stacked Identities

What are the theoretical justifications for using an assortment of legal doctrines to protect workers? Worker advocates rightly acknowledge that workers stack multiple identities and should be viewed in light of all of them. This perhaps gets us closer to what labor organizer Jane McAlevey calls “whole-worker organizing”: an organizing model that seeks to get workers “to see the connections between corporate domination of their work lives, their whole lives, and their country’s political structure.” This form of organizing acknowledges the worker as more than a worker. Workers are also members of religious institutions, parents, neighbors, and community members. By extension, their formulations as economic participants also vary. For as much as they work, they are also consumers, renters, and student and medical debtors. As forms of corporate domination expand into all areas of life, these roles have become less and less distinct. Hence, we endorse new forms of advocacy that reshape and transform various areas of law into an integrated work law.

An Integrated Work Law is Not New

Though these approaches may seem novel, the effort to integrate different areas of law to benefit workers has a rich tradition going back to the beginnings of New Deal legislation. The National Industrial Recovery Act of 1933 (NIRA) was an all-encompassing attempt to pull the working class from the destitution of the Great Depression by providing competition requirements, consumer protections like price controls, minimum wage guarantees, a right to unionize, and an agency that extended grants to reduce unemployment. Supported by unions, NIRA was labor law (the NLRA is one of its surviving offspring), but it was also a law creating consumer protections and regulating public employment to benefit job seekers. The scope of NIRA’s mandate was expansive and it fell out of favor first with big business, then the Supreme Court. It remained popular with many workers, however. NIRA is regarded by some as a policy failure. However, it would more accurately be described as the baby steps of an integrated law approach to an industrialized economy—one that sought to address the plight of the worker as a whole, not simply through their workplace conditions.

Later, the Civil Rights Act of 1964, enacted as part of President Johnson’s Great Society program, prohibited discrimination on the basis of race, color, religion, sex, or national origin in broad swaths of American public life. The legislation outlawed segregation in businesses and schools and required equal voting rights, striking at deeply embedded prejudices throughout society. As part of that goal, it also prohibited discrimination in the workplace. This Act understood that discrimination was a social concern as much as it was a workplace concern, and that society-wide inequality permeated into workplace conditions. Indeed, Dr. King insisted that workers’ rights and full employment were part and parcel of the Civil Rights Movement.

Worker organizing and advocacy in the modern fissured workplace requires innovative approaches blending different legal fields, especially as the lines between work and other areas of life blur. Outside of the United States, a European “social law” has long eschewed the U.S. compartmentalization of legal doctrines, instead recognizing workers with their stacked identities and protecting them accordingly. We’re seeing new gestures toward this hybrid approach today in the United States. While workers and their advocates chart new territory, though, they do so as descendants of those who fought for such integrated approaches dating from the New Deal.

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Jonathan F. Harris is an Associate Professor at LMU Loyola Law School Los Angeles and a Senior Fellow at the Student Borrower Protection Center.

Dylan R. Holmes is an Associate at the labor law firm Weinberg, Roger & Rosenfeld.

Equality and Liberty, Labor and Employment Law, Workers’ Rights