Benjamin Sachs

Coverage of the recent union election by Amazon warehouse workers has often referred to “national attention” around the “high-profile” event, for which “the world” and “we” have breathlessly awaited the outcome. The implied “we” are mostly news media, politicians, celebrities, and a pro-labor contingent of avid tweeters. It’s my job to relay Amazon workers’ reports of dehumanizing graveyard shifts and paranoia-inducing surveillance. But what about everyone else? ... Since people can’t protest at an e-commerce site, however, some labor reform advocates have floated the idea of a virtual picket line. This comes up in the Clean Slate Agenda, a report from Harvard Law School, produced by over 70 researchers, labor professionals, tech workers; they suggest lawmakers compel a company to post a notice on its website that informs consumers of a labor dispute and forces them to actively decide to cross the picket line...We asked Benjamin Sachs, a co-founder of the Clean Slate for Worker Powerproject, to elaborate. Sachs pointed to the existing legal framework and—a great idea—an easily achievable self-install that wouldn’t require any political battle at all.

Despite the strongest public support and the most sympathetic president in years, the American labor movement just suffered a stinging defeat -- again. Amazon warehouse workers in Bessemer, Alabama, overwhelmingly voted against joining the Retail, Wholesale and Department Store Union in much-anticipated election results announced Friday...The retail union complains that Amazon plastered the Alabama workplace with anti-union posters and forced employees to sit through mandatory sessions in which the company disparaged the union. Labor organizers, by contrast, had to catch employees outside the warehouse gate to make their pitch. "The law failed the workers,'' said Benjamin Sachs, a labor law professor at Harvard Law School. "The law gives employers far too much latitude to interfere in workers' ability to make a choice to join a union. That choice should be for the workers to make, not the employers to make."

Tesla Inc. repeatedly violated U.S. labor law, including by firing a union activist, and must make Chief Executive Officer Elon Musk delete a threatening tweet from his account, the National Labor Relations Board ruled Thursday. The ruling, issued by two Republican and one Democratic member of the agency, states that the electric-car makermust offer to reinstate the fired employee. The board members also ruled that Tesla broke the law by retaliating against another union activist, “coercively interrogating” union supporters and restricting employees from talking to reporters...The administrative law judge ruled that Musk should be required to attend a meeting at which either he or a labor board representative would read employees a notice about their rights, but in Thursday’s decision the agency rejected that remedy and said instead that posting a written notice would be sufficient...Posting a written notice sends a much weaker signal to employees than making executives read it aloud, said Harvard Law School professor Benjamin Sachs, who suggested that forcing Musk to post the notice on his Twitter account would also have been a more fitting remedy. When executives have to read the notice to employees, he said, it shows workers “that the boss is not the only authority in the world -- that the law is a higher authority than the boss.”

Players from the National Football League were among the first to voice their support. Then came Stacey Abrams, the Democratic star who helped turn Georgia blue in the 2020 election. The actor Danny Glover traveled to Bessemer, Ala., for a news conference last week, where he invoked the Rev. Dr. Martin Luther King Jr.’s pro-union leanings in urging workers at Amazon’s warehouse there to organize. Tina Fey has weighed in, and so has Senator Bernie Sanders. Then on Sunday, President Biden issued a resounding declaration of solidarity with the workers now voting on whether to form a union at Amazon’s Bessemer warehouse, without mentioning the company by name... “This is an organizing campaign in the right-to-work South during the pandemic at one of the largest companies in the world,” said Benjamin Sachs, a professor of labor and industry at Harvard Law School. “The significance of a union victory there really couldn’t be overstated.” ... Mr. Sachs, of Harvard Law School, said that despite Mr. Biden’s admonishments of companies’ interfering in elections, the current labor law does allow Amazon to hold certain mandatory meetings with workers to discuss why they shouldn’t unionize and enables the company to post anti-union messages around the workplace. “It is very helpful that the president is calling out these tactics, but what we need is a new labor law to stop companies from interfering,” he said.

In just a few short years, Amazon’s warehouse workers have gone from suffering in silence to jobsite walkouts in Minnesota and more recently a full-blown union vote in Alabama. Now it seems another segment of Amazon’s workforce is taking its first steps towards advocating for better conditions. In an informal driver-led survey shared with Gizmodo, hundreds of U.S. and Canada-based delivery drivers—who transport packages for but are technically not employed by Amazon—describe constant surveillance, to-the-second time crunches, and accelerated work with stagnant pay. And the vast majority say they’d like to unionize...Harvard professor and labor rights expert Benjamin Sachs advocates for a complete overhaul of FDR-era labor law in order to accommodate such non-employee-employees. (See his “Clean Slate” agenda, designed with former National Labor Relations Board member Sharon Block.) In the shorter term, he said, the National Labor Relations Board could authorize states to allow sectoral bargaining, an expansive bargaining system more common in Europe, which allows workers to bargain with multiple employers so long as they’re performing work in the same sector. “You can franchise and subcontract anything,” Sachs told Gizmodo over the phone. “More and more companies are getting away with these games that have enormous human costs, that allow companies to maintain control and profits while shedding all responsibility to the workforce.”

Perry Connelly quickly noticed that something was off when he began working at the Amazon fulfillment center in Bessemer, Alabama, last spring. Managers were unfriendly to the point of not acknowledging employees when they walked past, and they were quick to write people up for infractions that seemed minuscule or made-up, such as too much time “off-task.” “The main thing was just the disrespect,” the 58-year-old told The Daily Beast. Any concern, even one related to safety, went unattended unless it was an emergency, he said...Nearly 6,000 workers at the Bessemer warehouse began a vote this week to determine whether they will become the first Amazon employees in the country to form a union...Just like the town of Bessemer, a large portion of the warehouse employees are Black. “It’s significant that it’s a movement of primarily Black workers and women—the workers that have been most impacted by the pandemic,” Benjamin Sachs, a professor of labor and industry at Harvard Law School, told The Daily Beast. A win at the Bessemer warehouse would be a “huge victory for economic and racial justice,” Sachs said, and workers with positive experiences with unions often go on to unionize other workplaces.

As the pandemic continues to wreak havoc on the economy, with job losses mounting, work norms upended, and employees fearful for their safety, the country’s next Labor secretary will be thrust into the spotlight as never before. President-elect Joe Biden has vowed to be the strongest labor president in American history, and as his pick for the crucial Cabinet position, Boston Mayor Martin J. Walsh could significantly improve the lives of working people across the country. He’s poised to lead the charge in restoring rules rolled back by the Trump administration, which steered employment regulations toward corporate interests, and to push for new safety regulations and other benefits for a workforce that has been battered by the coronavirus...It has been nearly 50 years since the country had a Labor secretary with union ties: Peter Brennan, a housepainter turned labor leader who served in the Nixon and Ford administrations. A number of progressive unions whose political leanings don’t often align with those of construction labor groups endorsed Walsh for the post, and this crossover appeal could help the Biden administration gain support from both sides of the aisle. “What strikes me as important about the Walsh choice is that it’s somebody with a clear commitment to the labor movement and the importance of unions and the importance of worker power, and that’s not always true about Labor secretaries, even Democratic ones,” said Benjamin Sachs, a labor professor at Harvard Law School.

The pandemic has exacerbated the need for improvements in how we train and protect our workforce. Some of these needs are immediate, such as better worker health protections during the pandemic. Other needs are more longstanding but still urgent, such as equipping workers with the skills that will be demanded in the labor market in coming years. We propose three avenues to make progress along these lines. First, doing more to support the higher education sector in skills training. Second, focusing federal worker training programs on particular occupations and skills. And third, doing much more to support private-sector unions... Despite the decades-long failure of labor law, there is reason for optimism: several academics, advocates, policymakers, and other stakeholders have put forward a menu of policy reforms—both at the state and federal level—that would go a long way to help restore union strength to workplaces. By extension, strong unions can provide workers with the necessary institutional support they need to prepare for the post-COVID economy. For policymakers working to reverse the direction of labor law in this country, there are two paths available. The first, acknowledging the original sins and subsequent weakening of labor, involves a fundamental rethinking of labor-management relations in the United States. This approach is embodied by the innovative work being done by the Clean Slate for Worker Power Project, a project of Harvard Law School’s Labor and Worklife Program headed by Sharon Block and Benjamin Sachs. The project puts forward a plan for rewriting the rules that underpin labor law. For example, they suggest moving away from fundamental system establishment-level bargaining and instead moving toward a sectoral bargaining system, as already exists in Europe.

Forget regulating Big Tech: Gig economy companies could face the industry's most aggressive government regulation during a Biden administration. Tech lobbyists and labor experts told Protocol that gig companies are gearing up for an expensive, existential battle with the Biden administration. They know that an antagonistic Biden Labor Department has the ability to override state efforts to limit gig workers' rights, and experts described to Protocol how that could play out...The NLRB, which handles the question of who has a right to unionize, could issue a rule about whether gig workers are employees under the National Labor Relations Act or adjudicate an unfair labor practice charge from a group of gig workers trying to unionize. "That's two routes [at the NLRB] to the same outcome, which is 'drivers are employees,'" said Benjamin Sachs, a professor of labor and industry at Harvard Law School. "Once that determination was made, every Uber and Lyft driver everywhere in the country would have the right to form a union." But the NLRB process will likely be stalled as Democrats wait for the tenure of NLRB general counsel Peter Robb — who has sided with gig companies on the question of worker classification — to expire in November 2021.

Uber, Lyft, DoorDash, and California’s other gig companies emerged victorious Tuesday night, as voters endorsed a ballot measure that allows them to continue to treat hundreds of thousands of workers as independent contractors. Fifty-eight percent of the state’s voters approved Proposition 22, which repudiated a recent state labor law that would have required the companies to hire their drivers and delivery people as employees—and pay them traditional benefits, including health care, sick pay, and workers’ compensation. With a $200 million campaign, the companies pulled off what once seemed unlikely: reversing the work of state lawmakers and courts, which had sided against Uber and its peers...The urgency made sense: The gig companies believed that treating their workers as employees would disrupt the disruptors, driving their already precarious business models over the brink. One Barclays analysis estimated that shifting Uber and Lyft drivers to employee status in California would cost the companies hundreds of millions of dollars annually. The companies had threatened to leave California, or at least temporarily shut down service in the state, if they had lost...The gig companies, which made their names by exploiting legal loopholes and gray areas, have found another way to win. “California is, in some sense, a bellwether for the gig economy,” says Benjamin Sachs, a professor of labor and industry at Harvard Law School. The companies’ willingness to spend big in the state, he says, proves how important the labor fight is to them, and how much they have to lose...Labor advocates say that reordering the country’s labor regime may prove a slippery slope. Companies are more likely to “downgrade” employees to quasi-independent contractor status than “upgrade” independent contractors, says Sachs, the law professor. That would make it harder for American workers to access benefits and protections.

On Wednesday President Donald Trump's chief of staff announced that White House staffers who come into contact with the president, who has COVID-19, will wear masks, gowns, gloves and eye gear to protect themselves from getting infected with coronavirus. Still, that puts White House workers in an odd position, as their boss — the most powerful man in the country — is going to work sick. Meanwhile, workers who may have compromising immune conditions or merely don't wish to put themselves at risk are now expected to feel safe because of a little bit of PPE between them and a coronavirus-ridden boss who eschews mask-wearing...The case of meatpacking employees may end up being comparable to the situation in the White House. Sharon Block, the Executive Director of the Labor and Worklife Program at Harvard Law School, explained that workers at meatpacking plants "were told to continue to show up for work even as their coworkers were testing positive in high numbers and even dying." "As different as these workplaces may seem, the dynamic is similar — especially for the non-partisan staff in the White House, many of whom are people of color who are not highly paid. Because of the failures of the Trump Administration and their political objectives, workers' health and lives are needlessly being put at risk." ... "Under the Occupational Safety and Health Act, employees in the United States have a right to refuse to work when they reasonably fear serious injury or death," Benjamin Sachs, a professor of labor and history at Harvard Law School, told Salon by email. "In my view, COVID-19 presents such a threat, especially in a work environment when employees are being asked not to wear protective gear. Unfortunately, the Trump Administration's Occupational Safety and Health Administration has proven time and again that it will not stand up for workers. That's why workers need new leadership at OSHA and across government."

An article by Sharon Block and Benjamin Sachs: The premise of this feature is that both conservatives and progressives should support workers having a “seat at the table.” We agree with that premise. But it is crucial that we ask, what is the point of ensuring workers a seat at the table? It can’t merely be the symbolism of being included. It must be that the “seat” comes with actual power to influence outcomes. We see this commitment to actual power reflected in American Compass’s recent statement, “Conservatives Should Ensure Workers a Seat at the Table,” in which the authors describe their goal as ensuring that “participants meet as equals able to advance their interests through mutually beneficial relationships.” Enabling workers to meet management as “equals” requires that workers have the capacity to build and exercise more power than they possess as individuals. That is the point of organizing. That is the point of labor law.  Eli Lehrer recommends that we “unleash[]” unions and workers from the strictures of sections 8(a)(2) and 302 as a means to “offer labor organizations a new business model while giving workers new choices.” Free of the legal strictures of 8(a)(2) and 302, workers could join works councils, workplace safety committees, quality circles, and even company unions. Unions could become benefits consultants and generate revenue by serving in that capacity. According to Eli, “People on the right should like this proposal because it allows greater entrepreneurial creativity and offers hope for new civil society forms; those on the left should support it because it offers hope for organized labor through a new business model, as well as a path toward more democratic workplaces.”

An article by Sharon Block and Benjamin Sachs: In January of this year, we published a comprehensive set of recommendations for reforming U.S. labor law. Although the recommendations were extensive, the theory that lay behind them was straightforward: our country is facing dual crises of political and economic inequality, and we can help address those crises by giving working people greater collective power in the economy and in politics. Although progressives and conservatives disagree on many things, we all ought to agree that the stark inequalities that now pervade American life constitute grave threats. Politically, the viability of our democracy is threatened by a government that responds to the views of the wealthy but not to those of the poor and middle class. Economically, the viability of our community life is threatened by the fact that that we live in a country where it would take an Amazon worker 3.8 million years, working full time, to earn what Jeff Bezos alone now possesses. Saving American democracy and American communities will take a wide variety of interventions, but labor law reform must be one of them. In fact, much of the explanation for our current crisis of economic inequality is the decline of the labor movement. Unions redistribute wealth—from capital to workers, from the rich to the poor and middle class— and without unions, we have not had an adequate check on economic concentration. The decline of the labor movement also accounts for much of the current crisis of political inequality. When unions were active and strong, they helped ensure that the government was responsive to the needs and desires of the poor and middle class. Without unions, these poor and middle-class Americans have lost their most effective voice in our democracy. We have seen the consequences of this decline in unionization play out dramatically during the pandemic and recession, which have had devastating consequences for workers trying to navigate their physical and economic survival with so little collective power.

The front of the New York Times sports section on Thursday commemorated a historic day in sports, when three NBA playoff games, along with games across Major League Baseball, Major League Soccer and the WNBA, were postponed because athletes refused to play, in protest over the police shooting of Jacob Blake, an unarmed black man in Kenosha, Wisc. The image was simple: an empty court in the NBA bubble in Orlando. The headline was one word: “Boycott.” And the backlash, once the Times tweeted the image Wednesday night, came quickly. “You need to change it to STRIKE,” Rep. Alexandria Ocasio-Cortez, D-New York, wrote on Twitter. Ocasio-Cortez spread her frustration around the media, responding to a tweet by The Washington Post that also called the action a “boycott," though the story itself used “strike." "NBA players are courageously on strike (withholding labor), NOT boycotting (withholding their $ /purchase),” she wrote. "The diff is important bc it shows their power as *workers*.” Others piled on. In New York magazine, Sarah Jones and Chas Danner offered their own critique of sportswriters who referred to the day’s events as a boycott. “The term,” they wrote, "is inaccurate, and dampens the political thrust of the Bucks’ protest.” ...Benjamin Sachs, a professor of labor and industry at Harvard Law School, [says] labeling what happened may be less important than describing what happened, and why. “We tend to think about strikes as about wages and benefits," Sachs said. "Those are very important, but this was about something much bigger than that, something involving the character and future of the country. So you can call it whatever you want, but the name seems less important than the meaning of what happened.”

In 2009, the year Uber launched, FedEx made a change to its business model. The shipping firm had previously relied on independent contractors who owned their own trucks and were paid by the delivery or mile rather than the hour. For years, the company faced an onslaught of lawsuits arguing that the people who delivered mail in a FedEx branded truck and uniform should actually be classified as employees, rather than contractors, and protected by minimum wage and other labor laws. ... As FedEx and other franchises have already shown, the franchise model can serve a similar purpose to the independent contractor model. While there are legitimate uses for both models, says Benjamin Sachs, a professor of labor and industry at Harvard Law School, “they are also schemes to avoid taking responsibility for workers […] And if they offload their responsibility onto someone who can’t bear it, then the driver is left holding an empty bag.”

A California court Monday ruled that Uber and Lyft must reclassify drivers as employees rather than independent contractors. Employee status comes with many important benefits, like paid sick leave, unemployment insurance and subsidized health insurance. But Uber CEO Dara Khosrowshahi argued in a New York Times op-ed that it comes at the expense of flexibility, the lifeblood of the gig economy. He called for a new “third way” to classify and provide benefits to workers who fall somewhere between employee and independent contractor. Under existing labor law, workers in America have to be classified as either an employee or an independent contractor. Paul Oyer, an economist at Stanford University, said that binary system goes back to the early 20th century when work looked pretty different. “So the law isn’t perfect,” he said. “There’s a spectrum of possible work relationships. And we want to both protect workers along that spectrum, but also allow some amount of flexibility.” While the pandemic has highlighted the need for better protections for gig workers, most still prefer to be independent, according to one survey, so they can set their own hours. Gig platforms have argued that won’t be possible if workers are employees. “That is just untrue,” said Benjamin Sachs, a professor of labor law at Harvard University. “You can be an employee and have an entirely flexible work arrangement.” Many workers already do, especially now.

In May, just days after a Minneapolis police officer killed George Floyd, Lieutenant Bob Kroll, the bellicose leader of the city’s police union, described Floyd as a violent criminal, said that the protesters who had gathered to lament his death were terrorists, and complained that they weren’t being treated more roughly by police. Kroll, who has spoken unsentimentally about being involved in three shootings himself, said that he was fighting to get the accused officers reinstated. In the following days, the Kentucky police union rallied around officers who had fatally shot an E.M.T. worker named Breonna Taylor in her home...The list goes on. Along with everything else about American society that was thrown into appalling relief by Floyd’s killing, there has been the peculiar militancy of many police unions. Law enforcement kills more than a thousand Americans a year...Benjamin Sachs, a professor of labor and industry at Harvard Law School, points to new data showing that, when police have greater access to collective bargaining, it correlates with a long-term increase in police killing of civilians, specifically nonwhite civilians. Strong union towns like Chicago often have a more dangerous police culture than cities with weak labor laws do. In Dallas, for instance, the main police union is not the sole bargaining agent. Several different groups, including fraternal organizations of African-American and Latino officers, sign off on union contracts. The result is both more transparent and markedly less violent policing...Sachs agrees that there is an urgent need for reform, but he suggests considering more procedural steps: limiting collective bargaining to non-disciplinary matters; opening bargaining sessions to the public; encouraging departments to have multiple unions, representing more diverse views. Many analysts emphasize the need for new use-of-force protocols that are known to save lives but that the unions reject.

A few weeks ago, Angely Lambert was serving customers at a McDonald’s on a bustling commercial strip in Oakland, California, when she started to feel ill on the job. Her sharp headache and dull body aches bothered her enough that she asked if she could go home, she told me, but a manager insisted that she finish her shift....Frightened, angry, essential: This is American labor during the coronavirus pandemic. Decades of economic trends and legal shifts have tilted the balance of power in the employer-employee relationship toward corporations and away from workers. This means that, months into the pandemic, millions of low-wage workers are still facing an impossible choice: their lives or their livelihood. But it need not be this way. And as businesses reopen, workers such as Lambert need more say in how... “Economic issues are life-and-death issues,” says Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School. “What COVID has done is illustrate the life-or-death nature of those economic issues in a very accelerated time frame.” ...Workers have a voice, and the government needs to let them use it, giving employees such as Lambert more of a say in creating and maintaining a safe workplace. Clean Slate for Worker Power, an advocacy group led by Block and Benjamin Sachs of Harvard Law School, is pushing for new rules to require open businesses to have a worker-elected “safety steward,” who would make sure a given workplace is complying with local and federal laws. They also propose that the government set up commissions to negotiate workplace-safety standards, business sector by business sector rather than one burger joint or nursing home at a time, and to help workers organize online. Because demanding safe conditions should not be a firing offense, the government could also pass just-cause dismissal statutes to protect workers from retaliation by their employers.