Benjamin Sachs

Each January, as the Bureau of Labor Statistics (BLS) releases its annual data on union membership rates, labor braces itself to see how steeply the chart dips. This past year, the share of unionized workers declined 0.4 percent, to just 10.7 percent of wage and salary workers overall and a bare 6.4 percent of private-sector workers. As has been the case for many years now, the annual release represents the lowest year on record for unions....And yet, as Harvard Law Professor Ben Sachs has pointed out, the Supreme Court has not employed the typical typologies of preemption at all when dealing with labor law. Rather, it has created a “preemption doctrine [that] is among the broadest and most robust in federal law.”

President Trump, who came into office courting labor unions and vowing to stand up for American workers, is taking a major step to alter the direction of federal labor policy, positioning the National Labor Relations Board to overturn a series of high-profile Obama-era decisions...“The question is, on the major issues of the day, can we update the act to take account of changes in the labor market?” said Benjamin Sachs, a professor of labor law at Harvard Law School and a former union lawyer. “These guys are on one side; the Obama board was on the other. We’ll see a profound change in direction of labor law.”

Conservative groups are wasting little time in trying to deal a crippling blow to labor unions now that Justice Neil Gorsuch has joined the Supreme Court. A First Amendment clash over public sector unions left the justices deadlocked last year after the death of Justice Antonin Scalia. But union opponents have quickly steered a new case through federal courts in Illinois and they plan to appeal it to the high court on Tuesday...For unions, the loss of millions in fees would reduce their power to bargain for higher wages and benefits for government employees. "This is an aggressive litigation campaign aimed at undermining unions' ability to operate by forcing them to represent people for free," said Benjamin Sachs, a professor at Harvard Law School specializing in labor law.

Labor unions in America are in crisis. In the mid-1950s, a third of Americans belonged to a labor union. Today, only 10.7 percent do, including a minuscule 6.4 percent of private sector workers. The decline of union membership explains as much as a third of the increase in inequality in the US, caused voter turnout among low-income workers to crater, and weakened labor’s ability to check corporate influence in DC and state capitals...But the recent victorious fight for a $15 minimum wage in New York offers a path to sectoral bargaining at the state level...“Sectoral bargaining is certainly getting more attention in legal academic and labor law policy debates,” Benjamin Sachs, a professor at Harvard law school and former practicing labor lawyer, says.

A federal appeals court on Thursday ruled that companies cannot force their employees to sign away their right to band together in legal actions, delivering a major victory for American workers and opening an opportunity for the Supreme Court to weigh in. The United States Court of Appeals for the Seventh Circuit in Chicago struck down an arbitration clause that banned employees from joining together as a class and required workers to battle the employer one by one outside of court...“The increasing use of mandatory arbitration agreements and the prohibition on workers proceeding as a class has been one of the most major developments in employment the last decade,” said Benjamin Sachs, a professor of labor law at Harvard Law School. “Most of the court decisions have facilitated this development. This is a major move in the opposite direction.”

Last week, ride-sharing pioneer Uber announced it was settling a pair of major class-action lawsuits brought by Uber drivers in California and Massachusetts. The drivers claimed Uber had “misclassified” them as independent contractors, rather than employees, in order to save money. The suit was seen as one of the biggest threats to Uber’s business model to date...Benjamin Sachs, a labor law professor at Harvard Law School, said the drivers association could probably withstand an 8a2 charge if it didn’t have any real power in its dealings with Uber management. “If it’s just a substitute for a suggestion box, and if it’s not a meaningful back and forth, then it might escape 8a2 scrutiny,” Sachs said.

Is Supreme Court nominee Merrick Garland a judicial progressive or a moderate? One way to judge is to look at his many opinions that defer to administrative agencies and that are a hallmark of his jurisprudence during his nearly 20 years on the D.C. Circuit Court of Appeals. In disputes over union power, his opinions nearly always benefit unions. According to the onlabor.org website, which is run by Harvard Law professors Benjamin Sachs and Jack Goldsmith, Judge Garland wrote the majority opinion in 22 cases that considered appeals of decisions made by the National Labor Relations Board. In 18 of these decisions, Judge Garland sided with the NLRB’s judgment against a company for unfair labor practices. In all of those cases, the blog notes, “deference to the NLRB has had favorable consequences for labor and unions.”

“We can either have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can’t have both,” Associate Supreme Court Justice Louis Brandeis said decades ago during another period of pronounced inequality in America. Echoing the concern of the Harvard Law School (HLS) graduate, over the past 30 years myriad forces have battered the United States’ legendary reputation as the world’s “land of opportunity.” The 2008 global economic meltdown that eventually bailed out Wall Street financiers but left ordinary citizens to fend for themselves trained a spotlight on the unfairness of fiscal inequality. The issue gained traction during the Occupy Wall Street protest movement in 2011 and during the successful U.S. Senate campaign of former HLS Professor Elizabeth Warren in 2012...“Money has corrupted our political process,” said Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at HLS. In Congress, he said, “They focus too much on the tiny slice, 1 percent, who are funding elections. In the current election cycle [as of October], 158 families have given half the money to candidates. That’s a banana republic democracy; that’s not an American democracy.”...Though labor rights have been eroding for decades, Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at HLS, still thinks that unions could provide an unusual way to help equalize political power nationally...To restore some balance, Sachs suggests “unbundling” unions’ political and economic activities, allowing them to serve as political organizing vehicles for low- and middle-income Americans, even those whom a union may not represent for collective bargaining purposes.

The Labor Department on Wednesday waded deeper into the contentious issue of joint employment, seeking to clarify who is accountable for violations of employment laws when two different entities, like a manufacturer and a staffing agency, both have ties to the same worker...Conversely, plaintiffs’ lawyers may find the interpretation helpful when litigating cases. “You have a document you can present in court,” said Benjamin I. Sachs, a professor of labor and employment law at Harvard Law School. “You can say the administrator of the wage and hour division sees it this way.”

The Citizens United decision, which amplified the role of money in American politics, also promised something like a level playing field. Both corporations and unions, it said, could spend what they liked to support their favored candidates. But last week’s arguments in a major challenge to public unions illuminated a gap in the Supreme Court’s treatment of capital and labor. The court has long allowed workers to refuse to finance unions’ political activities. But shareholders have no comparable right to refuse to pay for corporate political speech. At the arguments in the case, Friedrichs v. California Teachers Association, No. 14-915, the justices seemed poised to widen that gap by allowing government workers to refuse to support unions’ collective bargaining activities, too. The case should prompt a new look at whether the differing treatment of unions and corporations is justified, said Benjamin I. Sachs, a law professor at Harvard. “If we’re going to make this opt-out right for workers more and more muscular, which is what is going to happen with Friedrichs,” he said, “the question of symmetrical treatment of shareholders just becomes that much more important.”

A U.S. Supreme Court case set for argument Monday challenging powerful public-sector unions echoes a very different dispute: The recent battle over gay marriage. The legal fight pits a small group of teachers and the Christian Educators Association International (CEAI) against the influential California Teachers Association, a union with 325,000 members and a history of backing liberal political causes. ... If the plaintiffs win, Benjamin Sachs, a professor at Harvard Law School, said he would expect to see more workers stop paying for union representation. "That would create a profound free-rider problem for all public unions," he said.

...The hype’s been building for decades now: The robots will be like legions of outsourced Indian workers — smarter than you, cheaper and with kickass work ethics too. An Oxford University study in 2013 suggested that the automation of more and more work, from accounting clerks to the C-suite, could wreak havoc on nearly half of all American jobs in the coming decades...Nobody yet knows the contours of the looming labor upheaval. Experts debate how long it will take for automation to hit its stride and really start kicking us all in the nuts, the scope of its impact, even how many jobs will be lost and how many might be gained. But some among them argue that it’s not too early to think about what exactly the world will need to do when the great hiccup does come around. “There are a host of policy responses” that could address the looming transition, says Benjamin Sachs, professor of labor law at Harvard Law School, “none of which are easy — or modest.”

For roughly the first two years of its existence, Munchery, an on-demand food preparation and delivery service, classified its drivers as independent contractors. They were not covered by minimum wage and overtime laws, and were not eligible for unemployment insurance or workers’ compensation. Then, in 2013, it reversed course and made its drivers full-blown employees. In addition to those various protections, they received health benefits if they worked at least 30 hours per week. The about-face suggests an ambiguity in the status of workers at Munchery and other on-demand companies like the car-hailing services Uber and Lyft...But even these hard cases often are not necessarily as hard as they initially appear. Benjamin I. Sachs, a Harvard law professor who is a former union official, notes that the drivers may only need to be paid from the point at which they have agreed to pick up a particular rider.

The rise of Uber has convinced many pundits, economists, and policymakers that freelancing via digital platforms is becoming increasingly important to Americans’ livelihood. It has also promoted the idea that new technology—particularly the explosion of platforms enabling the gig economy—will fundamentally alter the future of work. While Uber and other new companies in the gig economy receive a lot of attention, a look at Uber’s own data about its drivers’ schedules and pay reveals them to be much less consequential than most people assume...The Harvard law professor Ben Sachs has persuasively argued that Uber should be considered an employer and that “workers can choose when and how much to work, and can even work without immediate supervision, and still be employees.” The challenge, then, is to preserve the plainly evident value of Uber’s services while having the company comply with rules that provide adequate consumer, tax, and worker protections.

The busiest container port in the Western Hemisphere is ever so slightly less busy. Staff at a major Los Angeles warehouse serving Amazon and other big retailers went on strike Tuesday, protesting unpaid wages and overtime, dangerous conditions, a lack of breaks and water during hot summer months, and retaliation by management against their organizing efforts...“The law is certainly becoming more friendly to claims of joint employer status, even in cases where there is no direct or immediate supervision by the putative joint employer,” wrote Benjamin Sachs, professor of labor and industry at Harvard Law School, in an email to BuzzFeed News. “The NLRB’s decision in Browning-Ferris Industries is the leading case in this evolution.”

A new attempt by Democrats to boost worker bargaining power has a lot of failure behind it. The American workplace has changed a whole lot over the past half century. But the major law that governs how workers and employees interact — the National Labor Relations Act — has been essentially frozen since 1947, when the law was reformed to constrain worker power...“There’s a sense that this is about workers, not about unions,” says Harvard Law professor Benjamin Sachs of the new proposal. "EFCA, that’s a union bill. If you think about the Fight for $15 [an hour], this would apply to those workers.” That’s important, he says, because it could draw a larger base of support. “When unions succeed politically is when they push for things that are for all workers,” Sachs says, "and do poorly when they push for things that are just for unions.”

Work is becoming a much less pleasant place. From Uber drivers without job security to salesmen whose every move is electronically tracked to accountants expected to answer e-mails at all hours of the day and night, the nature of work is evolving — often in worker- unfriendly ways...“We’re living in an era of real uncertainty and dislocation when it comes to the world of work,” said Benjamin Sachs, a Harvard Law School professor who studies labor issues. “It’s a moment where we need to think carefully and reevaluate the policies we have governing the labor market.”

With little fanfare, the Obama administration has been pursuing an aggressive campaign to restore protections for workers that have been eroded by business activism, conservative governance and the evolution of the economy in recent decades. In the last two months alone, the administration has introduced a series of regulatory changes. Among them: a rule that would make millions more Americans eligible for extra overtime pay, and a guidance suggesting that many employers are misclassifying workers as contractors and therefore depriving them of basic workplace protections. That is an issue central to the growth of so-called gig economy companies like Uber. ...“These moves constitute the most impressive and, in my view, laudable attempt to update labor and employment law in many decades,” said Benjamin I. Sachs, a professor at Harvard Law School and a former assistant general counsel for the Service Employees International Union. The goal, he said, is to “keep pace with changes in the structure of the labor market and the way work is organized. That’s a theme that runs through all of this.”

Last month, the California Labor Commission ruled that an individual Uber driver was an employee. Today, the Department of Labor has issued a set of guidelines that suggests that all of them might be. ...Harvard labor law professor Benjamin Sachs told BuzzFeed News that the memo “clarifies the DOL’s view of what it means to be an employee for purposes of minimum wage, overtime, and family leave. Courts that defer to this interpretation are likely to conclude that Uber and Lyft drivers — and most other on-demand workers — fit the bill. After all, according to the labor department, you can be an ‘employee’ even if you set your own schedule and even if your work is never directly supervised.” But, Sachs added, while the guidelines do make a statement, it would be “not that radical” for a court to come to a decision that was not in alignment with the DOL’s new guidelines.

The Supreme Court will consider limiting the power of government employee unions to collect fees from non-members in a case that labor officials say could threaten membership and further weaken union clout..."When unions are required to provide representation, if people don't have to pay for that, a lot of them are going to opt for that free option and that's going to cause enormous problems for the viability of unions," said Benjamin Sachs, a professor at Harvard Law School specializing in labor law.

The Supreme Court put public-sector unions in its crosshairs Tuesday by agreeing to hear a constitutional attack on the mandatory representation fees that nearly all California teachers pay...“This is a very significant case. It may well be life or death for the unions,” said Harvard Law School professor Benjamin Sachs. “Unions are required to represent everyone. And this could mean nobody has an obligation to pay.”

Powerful public-sector unions are facing another high-profile legal challenge that they say could wipe away millions from their bank accounts and make it tougher for them to survive. A group of California schoolteachers, backed by a conservative group, has asked the Supreme Court to rule that unions representing government workers can’t collect fees from those who choose not to join...Alito had also criticized the Abood decision in a 2012 opinion in which the court ruled that union members had to opt in for special fees instead of opting out. “It’s a clear signal that Alito believes Abood ought to be overruled,” said Benjamin Sachs, a professor at Harvard Law School specializing in labor law. “There are some number of justices on the court that probably share that view.”

The Senate labor committee chairman, Republican Lamar Alexander, condemned federal labor board officials Tuesday, saying they were moving against state right-to-work laws. Last week, the National Labor Relations Board (NLRB) called for legal briefs examining state right-to-work laws and whether unions should have the ability to extract dues payments from nonmembers. The policy, which has passed in 25 states, outlaws mandatory union membership or dues as a condition of employment...“The problem with the board’s rule is that it allows workers, in right-to-work states, to demand individual representation from the union (for example in grievance proceedings) while refusing to pay anything for that representation,” Harvard Law Professor Benjamin Sachs wrote for the blog OnLabor.org. “There is no seeming rationale for this inequity, and nothing in the federal labor law nor in state right-to-work laws requires it.”

Massive union-backed protests, an improving economy and regulatory action undertaken by the Obama administration all contributed to McDonald’s’s decision Wednesday to raise workers’ wages. But the move won’t likely be enough to take the heat off the fast food giant...“It’s almost implausible to claim that there’s no relationship between Fight For $15 and this wage increase,” said Benjamin Sachs, a labor law professor at Harvard. “It’s good news. It’s not good enough news.”

Wisconsin lawmakers on Thursday will begin a final debate on a measure supported by Republican Governor Scott Walker that would prohibit private-sector workers from being required to join a union or pay dues when working under union contracts...the law may make it harder for organized labor in Wisconsin to create new unions and, over time, it could reduce union membership as workers retire or move out of state. The pressure on union membership in turn weakens Democrats, who are typically backed by organized labor, Harvard Law School labor expert Benjamin Sachs said. "This law disables the political opposition," Sachs said.

Labor may be at a turning point in this country. New campaigns have started to infuse fresh energy into a moribund and declining movement, and new models of collective action are being proposed in the course of these ongoing efforts. While the existing National Labor Relations Board (NLRB)/National Mediation Board (NMB) certification election-contractual bargaining system still functions on paper, in practice it has broken down...There’s absolutely no doubt that if workers are going to ultimately make their own destiny that a new model or approach is needed for unions. One that has been proposed, separately by the UAW at the much-discussed Chattanooga, Tennessee, Volkwagen plant, by Harvard Law School professor Benjamin Sachs, and by labor lawyer and writer Tom Geoghegan is the implementation of works councils in the United States.

The company's new policy has given hope to both supporters and opponents of efforts by the United Auto Workers to unionize its first foreign-owned plant in the region. The outcome of the union drive at the Chattanooga plant is being closely monitored by other German and Asian automakers in the region, and by Republican officials who dread the prospect of a UAW breaking its losing streak among what the union refers to as the "transplants."...Benjamin Sachs, a labor law professor at Harvard University, said Volkswagen's new policies "could be important to the United Auto Workers' organizing efforts" in Chattanooga. Voluntarily providing access to the plant for meetings, notices and other activities is a departure from the practices of most companies where "the worksite is off limits for union organizing, by and large," Sachs said.

An op-ed by Jacob E. Gersen and Benjamin I. Sachs. Every year, 5.5 million people are sickened by norovirus, a highly contagious gastrointestinal bug. According to the Centers for Disease Control and Prevention, norovirus is the leading cause of food-borne illness in the United States and is spread primarily by “infected food workers.” Last year cooks, waiters and other workers were involved in about 70 percent of the outbreaks. This is just one example of the critical role that food workers play in our nation’s economic and public health systems. And yet, while we often tailor employment rules for work that has a special impact on the public, the law has yet to recognize food workers as a distinct class — an approach that harms consumers, the economy and the workers themselves. Sick restaurant workers provide a particularly vivid example of the kind of legal reform that’s needed.

After spending much of the past few years as one of the handful of companies who could justifiably regard the Great Recession as a blessing, the company that gave the world the Happy Meal, Ronald McDonald and those iconic “golden arches” was rudely reminded earlier this month of what life’s been like for most everyone else: After posting some paltry numbers for third quarter revenue, income and earnings, McDonald’s saw its stock drop by as much as 58 cents...With so many protestors no doubt feeling the exhaustion of running a multi-year campaign, and with the fast-food companies themselves in no position to dismiss their workforce’s persistent (and popular) demands, you’d think now would be a time for leaders on both sides to start thinking about engaging in real negotiations. At the very least, that’s the question Harvard Law professor and On Labor contributor Ben Sachs has been raising as of late. And although the lack of union representation is one of the major points of contention between protestors and fast-food management, Sachs believes there may be a model for how negotiations can go forward nevertheless. Earlier this week, Salon called Sachs to discuss his idea and the fast-food workers movement in general.

Federal law preempts an Indiana right-to-work provision that prohibits employers from forcing union membership or union dues as a condition of employment, a group of law professors told the Seventh Circuit, urging the appeals court to reconsider a challenge to the law. Siding with a union that has challenged the validity of Indiana's right-to-work statute, two professors — Harvard Law School's Benjamin I. Sachs and the University of California at Irvine's Catherine L. Fisk — argued on Thursday in an amicus brief that the Indiana law and those of its ilk in other states should be preempted by the National Labor Relations Act and other federal labor laws. That preemption, the professors said, applies to the extent that the Indiana and other state right-to-work laws interfere with collective bargaining agreements that require nonunion employees to pay dues or fees less than the union amounts.

Last month, as you’ve probably heard, a closely divided Supreme Court ruled that corporations with religious owners cannot be required to pay for insurance coverage of contraception. The so-called Hobby Lobby decision, named for the chain of craft stores that brought the case, has been both praised and condemned for expanding religious rights and constraining Obamacare. But beneath the political implications, the ruling has significant economic undertones. It expands the right of corporations to be treated like people, part of a trend that may be contributing to the rise of economic inequality…Minority shareholders have little power to influence the choices that corporations make. Benjamin I. Sachs, a law professor at Harvard University, notes that while federal law lets union members prevent the use of their dues for political purposes, shareholders do not have similar rights. “If we’re going to say that collectives have speech rights, then we should treat unions and corporations the same,” Sachs told me.

An op-ed by Benjamin Sachs and Catherine Fisk. Last week in Harris vs. Quinn, the U.S. Supreme Court put unions in a bind when it ruled that unionized home-care workers cannot be required to pay for the representation that unions are required by law to provide to them. In cases across the country, including at least one in California challenging the rules for public school teachers (Friedrichs vs. California Teachers Assn.), lawyers are now asking courts to extend the rule of Harris to all public employees and to prohibit government employers from requiring employees to pay their fair share of union representation. Requiring unions to offer free representation to workers who do not want a union makes no sense.

Supreme Court Justice Antonin Scalia could have ridden to the rescue of public employee unions in Harris vs. Quinn, the important labor rights case the Court decided Monday, as some scholars thought he might. But he didn't. "The dicta in Harris about Abood is serious, and it shows that some number of Justices would like to overturn Abood," writes Benjamin Sachs, a labor law expert at Harvard Law School. In other words, there might be a plurality to overturn Abood, but not a majority. Sounds like a hairsbreadth escape for Abood, this time.

An Illinois healthcare worker's legal challenge of mandatory union dues from public employees reaches a climax on Monday when the U.S. Supreme Court is due to rule in the case at the final session of its nine-month term. If the justices agree with the sweeping argument made by home healthcare worker Pamela Harris that compulsory union dues are forced association and speech prohibited by the U.S. Constitution's First Amendment, it would essentially establish a national right-to-work law and deliver a blow to public employee unions. Harvard Law School professor Benjamin Sachs said that if the perception holds that the Supreme Court saves blockbuster opinions for the end, it will mean a union loss. "If the union wins, it means the Supreme Court is affirming longstanding precedent. That is less of a 'blockbuster' kind of opinion than overturning longstanding precedent," Sachs said.

Over the past week, a number of HLS faculty members shared their viewpoints on events in the news. Here are some excerpts.

2008 saw an extraordinary round of faculty appointments at Harvard Law School, with the announcement of 14 new additions.