A Modern Union for the Modern Economy

Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes. This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship. This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. This Article further explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections

Taking State Property Rights Out of Federal Labor Law

The National Labor Relations Board\u27s current analysis of union organizers\u27 right to access employer property relies heavily on an employer\u27s right to exclude under state property law. If the employer possesses this right, an attempt to exclude organizers is generally lawful; if the employer lacks this right, the attempt is unlawful. This scheme makes little sense doctrinally, as an employer\u27s property interests are usually irrelevant to the issue that should be the Board\u27s primary concern— whether the removal of union organizers interferes with employees\u27 federal labor rights. I propose eliminating consideration of state property rights from right-to-access cases. Instead, the Board should focus on whether the manner in which an employer excludes organizers chills employee rights, while property issues—such as a trespass claim against organizers—should be determined by state courts. The proposal includes presumptions to guide employer conduct, providing clarity for all parties, better protecting employees\u27 labor rights, and freeing the Board from its struggles with state property law

Future Work

The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work

War Powers Abrogation

The United States’ peacetime security is based entirely on its all-volunteer armed forces. These volunteers, split equally between full- and part-time servicemembers, risk not only their health and safety, but also their economic stability when they are called away from home for training or active duty. Servicemembers’ duties also interfere with the demands of employers, creditors, and government agencies—which can result in job losses, financial difficulties, and other costs. As a result, the federal government has long used its constitutional war powers to enact legislation protecting servicemembers from many of these hardships. These statutes provide employment leave and antidiscrimination protection, tax relief, and special procedural rights that lessen the burden of military service to ensure that the United States has a sufficient number of well-trained soldiers. Despite these statutes’ importance to national security, their applicability to state entities is in doubt. Using the Supreme Court’s fluctuating state sovereign immunity jurisprudence, many state employers have invoked sovereign immunity to bar servicemembers’ private claims for monetary relief. More often than not, courts have sided with the states and dismissed servicemembers’ federal claims for want of jurisdiction. However, these decisions are based on erroneous interpretations of the Court’s doctrine of sovereign immunity. Under current law, the federal government’s ability to subject states to individual suits is analyzed from a historical perspective. The inquiry asks whether the states, in ratifying the Constitution, believed that they retained immunity in a given area. Based on misinterpretations of Court doctrine and a refusal to apply the required historical analysis, many courts have held that states are immune from claims filed under federal war powers legislation. This Article provides the first comprehensive historical analysis of the constitutional balance of war powers between the federal and state governments. This analysis unequivocally shows that the Constitution was intended to provide the federal government with virtually all war powers. Moreover, the Constitution requires that the very limited war powers left to the states must be entirely under the control of the federal government. As a result of this history, the federal government has constitutional authority to subject states to suit through “war powers abrogation.