The Lochner-era decisions rested on a key premise—that workers and employers were equally free to enter into bargains, or not enter into bargains, with each other. Most lawyers think that the courts killed off Lochner during the New Deal. But Lochner’s principles have persisted—not in constitutional law, but in the law of labor and employment. Key foundational doctrines of labor and employment law continue to rest on the premise of equal bargaining power. And the Roberts Court has increasingly relied on the same premise in a series of anti-worker opinions. That premise has significant, concrete, and insidious consequences. Like the old Lochner, it operates to deprive workers of the rights they won in political battles. This paper demonstrates that Lochner never truly died. It just shape-shifted.

The law produces these disadvantages in several ways: (1) Courts and other legal decision-makers fail to recognize that the employment relationship, as defined by law, is not a contract. However, they still try to apply contractual rules to resolving employment disputes. In some circumstances, they take the contradictory approach of pretending that employment is a contract but also seeking to protect the very features that make it not a contract: (a) the employer’s authority to terminate the relationship at will; and (b) the indefiniteness of the employment agreement, or the employer’s extracontractual discretion to make up the essential terms and conditions of the bargain as it goes along. (2) The law also fails to apply to employment relationships certain contractual safeguards, even where they would apply to like contractual situations. (3) Courts also fail to exercise their authority to fill contractual gaps and police contractual modifications when resolving employment disputes. Sometimes, they even neglect their duties of contractual interpretation.

Among the bad or arbitrary reasons that employers sometimes fire workers: something the worker said, or something they didn’t say. Employees have been fired, often without legal recourse, for criticizing their companies on social media, for running for office, or even for having a bumper sticker supporting a political candidate whose election the boss opposes. The freedom of speech that so many Americans valorize is in practical effect illusory for many American workers.

This report traces the legal rules governing freedom of speech at work. Following a summary that emphasizes the scope of the problem and gives examples, it begins by discussing the background rules of at-will employment, which establish that employers may generally terminate workers for what they say. This rule has its limits—for example, employers may not fire workers in contravention of a state’s explicit public policy—but judges tend to apply these exceptions in a patchy and inconsistent fashion. Further, because the First Amendment does not constrain private actors, private-sector workers cannot fall back on the constitution at all; even public-sector employers are often free to fire or discipline workers for their speech.

Beyond common law rules, the report also discusses federal, state, and local statutes that protect certain types of employee speech. These laws tend to apply only to specific subjects and manners of expression. For example, the National Labor Relations Act protects employees’ conversations about their working conditions—but only as long as those conversations occur at the right time, in the right place, and in the right manner. For example, among other limits, the NLRA protects only those conversations or meetings that occur during “nonwork time,” and the Trump NLRB has recently held that the NLRA does not protect employees’ use of their work-issued email addresses. Likewise, some states and localities forbid employers from retaliating against employees for their political views. But each of those laws has serious limitations in coverage, enforcement, or both. Worse, employers sometimes challenge even limited protections for workers’ expression on the grounds that those protections violate the employer’s own rights under the First Amendment.

Finally, some workers have meaningful contractual protections that curb the effects of the at-will doctrine, including as it applies to their speech and expression. But workers cannot achieve these protections without either individual or collective power, both of which have eroded for many workers over the last 80 years. The result is that one real source of protection for workers who speak out—collective bargaining agreements in which employers agree to discipline or fire workers only for good cause—are increasingly out of reach, especially for private-sector workers.

This report aims to help readers understand the legal landscape that effectuates the “freedom of speech” at work. It shows how employers have come to monopolize that freedom for themselves, and why workers experience speech control instead of speech freedom.

The Act not only creates explicit safety and health standards and authorizes the Secretary of Labor to create more, it also grants workers specific rights. As well as the paramount right to safe and healthful working conditions, these include the rights to complain about unsafe working conditions, to request OSHA inspections and to participate in those inspections in several ways, to petition OSHA to promulgate workplace standards and to challenge those standards if they are not adequately protective, and the right to information about the harmful substances in their workplaces, among others. The Act was thus an acknowledgement that market forces were not adequate to provide workers with decent working conditions.

The first example this paper discusses is the right of workers to relieve themselves when they need to. Most professionals could not imagine needing their supervisors’ permission for a bathroom break. But this is a daily reality for workers in many situations, such as meat and poultry processing or assembly lines. As well as being demeaning and infantilizing (some workers have resorted to wearing adult diapers while working), this exposes workers to increased risk of kidney infections and other adverse health effects. OSHA, however, has cited employers in some of these situations, leading to vastly improved conditions for the workers in the cited facilities. The problem continues, however, for other workers, particularly undocumented and other vulnerable workers who are reluctant to complain. Another example is the right of workers to refuse to perform life-endangering assignments. Although the Act explicitly provides only for the right to complain about unsafe working conditions, one of the first rules OSHA promulgated interpreted that provision to allow workers who were faced with immediate harm to refuse to perform the dangerous task. It took a unanimous Supreme Court only six weeks to determine that was a reasonable interpretation. Nonetheless, the problem continues to occur, exacerbated by one of the Act’s weaknesses: the fact that it may take years for a worker who is disciplined for exercising this right to obtain relief.

Other examples this paper discusses include OSHA’s protection of workers from exposure to hazardous chemicals, meaning that once-prevalent occupational diseases like asbestosis lead poisoning are now relatively rare, and its requirements that workers be trained on the adverse effects of all the hazardous chemicals they are exposed to. Violations of that requirement are regularly the single largest source of OSHA citations, however, showing the Act’s limitations. Other rules address numerous specific safety hazards, for example, requiring fall protection for construction workers and prohibiting employers from sending workers into unsafe trenches. The record of OSHA enforcement shows that compliance with these rules is still inadequate, but that it would be worse without OSHA. On balance, the paper concludes, the existence of OSHA shifts the power dynamic between workers and employers to some degree, empowering workers to do more to protect themselves, and providing a federal enforcement mechanism when employers continue to exert their power to endanger their employees.

These gender disparities cannot be explained, as some have tried to do, by pointing to personal choices, work-life patterns or skill differences. Basically, analyses based competitive markets characterized by equal bargaining power between workers and employers cannot explain gender disparities in outcomes.

This paper reviews recent research on gender inequality in earnings, showing how complex processes of multidimensional bargaining often lie submerged in the background of empirical findings. The paper will also briefly describe five specific organizing efforts—both progressive and regressive—that dramatize the many forms of power that come into play in gender “negotiations.”

The concept of bargaining power can provide a powerful framework for examining the persistence of gender inequality in the U.S. labor market. At the same time, attention to gender inequality can broaden the ways we conceptualize bargaining power.

This notion, based on the belief that the terms of employment are contracted between equal parties, was influential in American law and policy until the reforms beginning in the New Deal and culminating in the Occupational Safety and Health Act. The alternative view is that workers and employers do not come together as equals, and regulation of employment, including working conditions, is necessary for social justice and public health. This chapter reviews the debate and offers evidence in support of the unequal bargaining power perspective, focusing in particular on the most vulnerable and disenfranchised participants in the labor force. In the process, it critiques the “value of statistical life” literature that claims to locate the monetary value of safety risk in labor market data. It concludes by considering the challenge of worker protection during the current coronavirus pandemic and reports new data on worker perceptions of infection risk and the provision of hazard pay. 

The frequently invoked conventional explanations attributing wage problems primarily to automation and, somewhat, to globalization, cannot actually explain key wage developments over the last several decades. Moreover, portraying wage stagnation and growing wage inequality as the unfortunate byproduct of inevitable, positive forces such as automation that one neither can nor would want to alter is deeply misleading and, sometimes intentionally, is meant to absolve those with the most power—corporations and the most wealthy people—from their responsibility for the outcomes of their actions and to ignore the impact of racism and sexism.

Any explanation of wage stagnation must grapple with three key features of wage trends over the last four decades. First, wages and benefits for the typical worker have risen very slowly—frequently characterized as stagnant—and much more slowly than the productivity of the average worker. Second, the gap between the typical worker’s compensation and average productivity primarily results from two types of inequalities, primarily a growing inequality of wages and benefits but also a shift of income from labor to capital. Finally, while racial wage disparities grew, and gender wage disparities did shrink, the failure to eliminate these disparities and continue the progress achieved in the 1960s and 1970s has led for there to be higher inequality today.

This paper offers a narrative and supporting evidence on the mechanisms that suppressed wage growth over the last four decades since the late 1970s. We label this wage suppression rather than wage stagnation because it was an actively sought outcome—engineered by the political power and organizational strategies of corporate management and its political and judicial allies to suppress labor costs and wages and maintain gender and racial hierarchies—and was not the passive, unavoidable outcome of a “bad economy” or the byproduct of positive forces such as automation.

The key forces driving wage suppression have been changes in management practices/strategies and shifts in public policy, including both policy actions and omissions, that systematically undercut individual workers’ options and ability to obtain higher pay, job security, and high-quality jobs, along with a lack of action to counteract the racism and sexism that undercut the prospects of particular groups of workers. These dynamics are primarily located in the labor market and the strengthening of employers’ power relative to their white-collar and blue-collar workers. It is “as if” a team of corporate executives, lobbyists, and lawyers designed corporate strategies, reset government policies toward labor standards (e.g., minimum wage) and unions, shaped judicial opinions and the legal environment and weakened enforcement of existing labor standards and laws with the goal of limiting workers’ options in the labor market, limiting wage growth, and undercutting workers’ individual and collective bargaining power relative to their employers. These decisions were most adverse for workers with low and moderate wages, especially for African Americans so situated, thereby generating wage inequality whereby high earners and, especially those in the top 1.0% and 0.1%, fared far better than those in the bottom 90%. It was this growth in wage inequality, including the failure to close gender and racial disparities, and a shift of income from workers to owners of capital that explains the failure of wages for the vast majority to improve adequately.

This paper elaborates and empirically assesses the specific factors and mechanisms that developed since the late 1970s to undercut workers’ individual and collective bargaining power. We offer assessments of the impact of particular mechanisms on wage growth and wage inequality to demonstrate that their aggregate and cumulative impact can readily explain wage suppression and wage inequality. In particular, we examine the wage impacts of factors such as: excessive unemployment, resulting from faulty monetary (and budget) policies; eroded collective bargaining, resulting from corporate practices and adverse judicial and policy choices; weaker labor standards, resulting from a declining minimum wage, eroded overtime protections, and weaker enforcement of standards leading to greater “wage theft”; globalization, resulting from policy choices that undercut wages and job security of non-college-educated workers; gender and race/ethnic discrimination; shifts in corporate structures such as fissuring (or domestic outsourcing), industry deregulation, privatization, dominant buyers affecting entire supply chains, and increases in concentration of employers.

These briefs will examine such issues as: the inability of quitting to nullify employer power; that managers do not need to be given unlimited “flexibility” and decision-making power to maximize employment and economic performance/productivity; the error in assuming full employment, especially for low- and middle-wage workers; and the positions of women, people of color, and low-wage workers and their consequent inability to offset employer power.

Yet, this is exactly what labor economics and employment law presumes. Even the simplest acknowledgment that finding another job rarely occurs in the situation of full employment, where the need for and supply of jobs are roughly balanced: A large majority of the years over a business cycle are characterized by excessive unemployment and workers finding it “hard to find a job.” Workers also have limited resources to fall back on, either in savings or wealth or by access to public transfer programs. Health, disability, transportation, child care, and other circumstances constrain workers’ options. This paper details the actual circumstances that workers, especially those in the bottom half, face as they attempt to locate and maintain a decent job.

At the time, American labor policy was the most laissez-faire in the industrial world and lacked even the most rudimentary worker protections, such as child labor restrictions, maximum work hours for women, and minimum wages.

Advent and development of economic institutionalism and legal realism

Laissez-faire in labor markets started to produce widespread social evils and capital-labor conflict with the advent of large-scale industry in the late 19th century and coupled with massive immigration of unskilled labor and long periods of recession/depression. A countermovement to English classical/neoclassical free-market economics came to the U.S. from Germany in the 1880s, variously known as historical, legal, and social economics. It metamorphosized into institutional economics, and an institutional type of labor economics called industrial relations, and was spearheaded by progressive social reformers, such as Ely, Commons, and the Wisconsin School of the early 20th century, who advocated a broad range of labor protections and social insurance programs, such as minimum wages, unemployment insurance, and protection of the right to organize. The institutional economists partnered with progressive legal scholars, known as legal realists, and together provided the intellectual foundation for the revolution in labor policy by Roosevelt and the New Deal during the 1930s.

In this section, the core of the paper presents an overview of the development of institutionalism and legal realism from 1885, when Ely founded the American Economic Association to promote institutional economics, to its high-water mark in 1944 when President Roosevelt proposed his “second bill of economic rights.” The main part is a more in-depth analysis of the key doctrinal and theoretical premises, developed from original source materials, of the institutionalist/realist “model” of labor markets and employment relationships, with focus on the construct of unequal power in three spheres: external labor markets, internal labor markets, and the polity. The basic idea is that the “rules of the game” in all three spheres favored capital and propertied elites and disfavored labor and the (largely) nonpropertied common people, leading to a tipped configuration of bargaining power against labor and resulting evils of low wages, long hours, speed-ups, unsafe conditions, discrimination, and layoff/firing without notice or cause. The rationale for protective labor laws, social safety net programs, and collective bargaining, accordingly, is that these conditions are not in a meaningful sense a voluntary exchange and mutual-gain outcome but a coerced and socially harmful result that workers acquiesce to as they face the bleak “work or starve” choice.

The neoclassical/human capital counterrevolution

The paper concludes with a short overview of the eclipse of the institutionalist/legal realist (and complementary Keynesian) model of labor markets by a resurgent neoclassical school led from the University of Chicago. This section describes its central tenets viz. labor markets, drawing on writings of Friedman, Stigler, Posner, and Buchanan, and also complementary ideas from neoliberals such as Hayek, and how the Chicagoans/neoliberals effectively displaced/discredited the core institutionalist proposition of labor’s inequality of bargaining power. Without this pillar idea, the progressive side in the American intellectual community has had a much weakened rationale in favor of labor protection and counterargument against the laissez-faire story of competitive demand/supply and invisible-hand.

1. Yes, employers have power and quitting does not greatly constrain employers, from Suresh Naidu, Columbia University. Recent economics research affirms pervasive employer power and that the ability to quit is not sufficient to prevent exploitation.
2. Failure to provide full employment needs to be front and center, from Larry Mishel, Economic Policy Institute. The economy is rarely at full employment and for many workers (non-college-educated and black and Hispanic workers) the economy never reaches full employment. Excessive unemployment weakens worker bargaining power, erodes wage growth, and fuels wage inequality.
3. Must management rights be absolute or economic performance greatly deteriorates? It is important to identify the various dimensions of management rights in assessing any impact of their diminution. Some management rights are never challenged by collective bargaining or legislated mandates on employer behavior. For instance, “management has the right to determine what work shall be done; to determine what kinds of services and business activity to engage in; and to determine the techniques, tools, and equipment by which work on its behalf shall be performed” (Elkouri and Elkouri). A series of papers will illuminate the issues:
   • James Conran, University of Oregon, Choices nations make—There are ‘varieties of capitalism’: Several decades of comparative economics and political science research have identified that advanced nations have made a range of choices about workplace rights and institutions without jeopardizing economic output, productivity, and employment. The choices made by the U.S. have led to adverse outcomes for workers, especially low-wage workers.
   • William Spriggs, Howard University/AFL-CIO, and John Evans, OECD TUAC, Job flexibility and economic performance: The ongoing debate spurred by the initial OECD “job study” has led to the OECD backing down from claims that restrictions on job flexibility harm employment. Affirmative action in the U.S. has restricted managerial authority without adverse economic performance results.
   • Arin Dube, University of Massachusetts (invited), Mandates and wage standards: Another limitation on management rights is legislated standards for minimum wages and various other dimensions of compensation such as paid leave, sick leave, vacations, etc. These restrictions on management rights have not hampered economic performance.
   • Benjamin Schoefer, University of California-Berkeley, and Simon Jäger, MIT, Codetermination and economic performance and worker well-being: Policies which seemingly encroach on management’s authority over investment decisions, such as works councils and codetermination, have improved worker well-being while not diminishing either profits or investment.

There have been numerous written and in-person fora where these issues have been debated. This paper reviews and catalogs the economic claims made by intellectual opponents of Anderson about the working of the labor market and the extent to which market forces liberate workers from individual employers’ authoritarian control.

This paper considers the political and civic effects of these inequalities, and in particular how shifts of power in the workplace threaten workers’ civic voice and skills—and thus a healthy American democracy.

Scholars from diverse disciplines have long recognized that the workplace is not just a site for workers to carry out their jobs. It is also a place where citizens can deepen civic skills and political discussions and participation. Through the course of their jobs and the social networks and organizations developed at work, workers can develop skills relevant to political and civic life, like public speaking or interacting with individuals from diverse political and economic backgrounds. Workers can also engage in discussions with co-workers holding different (and opposing) political views and beliefs. And workers may receive opportunities to participate in politics directly—like invitations to support political causes or campaigns and reminders to participate in elections.

While the political potential of the workplace is well understood, we know much less about how the shifting terrain of power between workers and employers has changed civic opportunities for workers. Focusing on three changes to worker economic power—declining unionization; declining traditional, full-time employment opportunities; and changing employer labor market power—I examine how greater employer clout has eroded civic opportunities for U.S. workers.

Analysis of an original, nationally representative survey of over 1,200 employed American workers reveals that nonunionized workers, workers outside of traditional full-time employment arrangements, and workers who report lower levels of bargaining power relative to their managers are all less likely to say that they have opportunities for political skill-building, political discussions, and civic engagement at their jobs.

Consider the following examples:

• 58% of union members say that they have been engaged in politics at work by co-workers—for instance, having a co-worker ask them to support a political cause, candidate or campaign, remind them to vote, or inform them about a new political issue—compared with just 36% of nonunion members.
• 54% of traditional, full-time employees report that their job sometimes requires them to convince others of an argument—a skill helpful for other forms of civic participation—compared with only 30% of part-time or nonstandard workers.
• 28% of workers who say that they could find a job comparable to the one they currently hold report discussing politics or political issues with co-workers at least once a week, compared with only 16% of workers who said it would be very difficult find a new comparable position.

These differences in political skill-building, opportunities for participation, and discussion generally remain even after adjusting for workers’ own demographic characteristics, as well as other features of jobs, including industry and occupation. The findings in this paper thus suggest that changes in workplace power over the past several decades have not just reshaped economic conditions, like pay, working conditions, and inequality. These changes may have also seeped into the political system, corroding opportunities for political skill-building and participation for millions of American workers—and especially workers with less formal education and lower incomes, who have fewer chances to engage in politics outside of the workplace. Without other places to build these civic skills, have political discussions, or learn about opportunities to participate in politics, many American workers may hold less political voice—and representation in government—as a result of declining workplace power.

Beyond its academic contributions, this paper carries lessons for policymakers, political observers, and workers themselves. Most importantly, my analysis suggests that changes to policies governing the workplace—like labor or employment laws—ought to consider not just the economic implications of such reforms, but also civic and political effects as well. For instance, when considering the effects of laws to address workplace fissurization, a relevant criteria is not only the pay or benefits that might be available to workers, but also the opportunities that workers have for engaging in civic activities at work. These criteria, I show, have important implications for thinking about labor reforms like sectoral bargaining, codetermination, and worker classification standards.

This paper brings a comparative-historical perspective to bear to illuminate the distinctive features of American employers and to explore their implications for contemporary labor politics in the United States. A large literature on the rich democracies demonstrates that the structure and organizational capacities of employers are critical to the operation of the political economy. While it might seem intuitive to suggest that unions are strongest where employers are least well organized, the comparative literature makes clear that the strength of labor and employer associations are not zero sum; instead they rise and fall together. A high level of employer organization is important for labor both because strong employer associations support encompassing (typically industrywide) bargaining and because it allows firms to cooperate on other issues such as training that support the kind of high-wage, high-quality, high-value-added production strategies that are more characteristic of Europe’s “socially embedded” variety of capitalism.

U.S. employers have developed powerful lobbying organizations (e.g., the Business Roundtable and the Chamber of Commerce), but they lack the kind of strong, centralized trade and employer associations that are crucial to the operation of Europe’s more egalitarian (“coordinated”) variety of capitalism. The purpose of this article is to elucidate the role of the law in shaping these outcomes. Specifically, I zero in on legislative and legal developments in the late 19th century, to document the impact they had on the organization, goals, and strategies of American employers and, with that, on the political-economic architecture of contemporary American capitalism as a whole. Based on a comparison with Germany, the paper shows that one of the most consequential legacies of judicial politics in the U.S. in the late 19th and early 20th centuries was to actively disarticulate emerging efforts at coordination among small- and medium-sized firms, and to confound efforts to develop the kinds of coordinating capacities that were emerging at this time in Europe. The prevailing legal framework in Germany allowed the strongest and most competitive such firms to spearhead the construction of strong coordinating capacities not so much to confront unions but to discipline marginal producers engaged in ruinous, cutthroat competition. In the United States, by contrast, the very different rules governing competition allowed marginal firms to shape the terms of the emerging labor regime, as low-cost producers were able to turn to the courts to assist them in dismantling nascent forms of coordination that posed a threat to their survival. Where employers could defeat unions in court, they had little need to coordinate among themselves in the market, since the efforts of even small numbers of players—winning key judicial decisions—resonated widely and affected all actors subject to the prevailing regulatory regime. The kinds of low-road firms that prevailed in these contests could then rely on the discipline of the market to bring other firms in line.

The go-to argument among the punditry and economists is that the decline is a simple manifestation of globalization and automation, essentially using the decline of manufacturing employment as the primary narrative for union decline.

In fact, automation and globalization affecting manufacturing can only explain a small share of the decline in union density. It is simple to note that union decline occurred in every sector within the private sector. The demand by workers for collective bargaining has mostly gone unmet, meaning the decline was not due to an erosion of interest by workers. The demand for collective bargaining is now at its highest level in many decades. Nor was union discrimination against women or minorities a factor, though such discrimination certainly existed in certain sectors. Nevertheless, there was an upsurge in interest in collective bargaining by black workers following the civil rights struggles and progress of the 1960s. By 1979, 34% of black workers benefited from collective bargaining, substantially greater than the 25% of white workers. Women were underrepresented in unions in 1979, but there were substantial efforts by women in retail and other services to organize in the 1970s that failed primarily because of employer opposition.

The narrative that needs to be told is the emergence of intense employer opposition and the development of new employer tactics abetted by changes in legal interpretations. The paper reviews the shifting landscape that led to the substantial decline in successful union organizing, which included: widespread use of anti-union consultants; threats of facility closings; the rise of illegal firings of union activists; the increasing inability to obtain a first contract even after a successful organizing campaign; the use of captive-audience meetings and screening of new hires to avoid union sympathizers; the empowering of “employer free speech”; and other developments. Other developments weakened union leverage in collective bargaining, such as: increased use of striker replacements; shutting down of union secondary boycott activity; increased use of offensive lockouts by employers; and artificial constraints on bargaining topics.

Instead it evidences a vastly unequal employment relationship in which most workers lack adequate protections or effective mechanisms for exercising voice and redressing grievances. The decline of private-sector labor unions over the last several decades has exacerbated this inequality. Many workers have concluded that the only way to redress their weak bargaining position and lack of structural power is to move the conflict out of the shadows of employers’ “private government” (Anderson 2017) and into the open, public, political arena. If the conflict remains private, small in scale, and quiet, workers know they will always lose. Nonprofit “alt-labor” groups, which have grown from only a handful in the 1990s to over 230 today, have emerged as central players in this effort (Eidelson 2013; Fine et al. 2018). Organizing and advocating for some of the most vulnerable low-wage workers, they increasingly have turned to public policy to raise labor standards for the greatest number of workers and have met with numerous successes. But they readily acknowledge that passing more policies does little to alter the persistent power imbalance in the workplace or confront a political system that sustains and reproduces these inequalities. Taking inspiration from radical organizing traditions and liberation theology, they take the long view and endeavor to change the political context in which they operate.

Using a diverse-case selection strategy, I conducted in-depth interviews and participant observation with two dozen workers’ rights organizations across the country to learn how they are approaching this monumental task. Clear patterns emerge. First, all groups face the same basic challenge: They are small, poor, and weak—their ambitions far outstrip their capacities—whereas employers are powerful, well organized, and politically entrenched. Their task, therefore, is to somehow “punch above their weight” and exercise more political influence than their limited resources would seem to allow, while simultaneously weakening their opponents’ grip on public authority. Although variation exists across cases, this power-building project typically involves five key components: (1) strategic base-building; (2) strengthening alliances with like-minded groups; (3) fashioning broad, intersectional policy agendas; (4) shaping the public narrative; and (5) investing in new organizational capacities. By including a wider range of interests and establishing additional points of political leverage, these moves seek to “modify private power relations by enlarging the scope of the conflict” (Schattschneider 1960, 39).

In sum, alt-labor has intentionally moved the conflict out of the workplace and into the public, political arena, where strategic power-building now takes center stage. This shift was not borne of elegant theory or master strategy—it has been far more improvisational and reactive—and in many ways it represents but a fallback plan amid the demise of the collective bargaining regime. Nevertheless, the changing politics of workers’ rights represents a development of profound significance. This study tracks and unpacks this development while drawing out its implications.

A wave of labor policy change has swept over states and cities across the U.S. over the past several years. Several cities have established new labor standards agencies to attempt robust implementation and enforcement of the new laws. While in the past federalism has been understood as being good for the structural power of business (e.g., Hacker and Pierson 2002), in the past few decades, it has actually provided some labor and community organizations with the opportunity to improve employment standards.

Employers and employer organizations in cities have played a role in these new local labor standards and their enforcement by exerting instrumental power throughout the process. Employers have also benefited from their structural power since local politicians are keenly attuned to the value of widespread perceptions of their city as having a “good business climate” with the assumption that those perceptions will encourage businesses to stay in the city and expand and will attract new businesses. In this paper, we investigate the role of these different forms of employer power during different phases in the trajectory of local labor standards from their inception to their enforcement. We use multimethod case studies of four major U.S. cities (San Francisco, Seattle, Los Angeles, and New York) that not only expanded their labor protections, but also established a local agency and directed substantial resources toward the enforcement of local laws. We document the extent and nature of business power during the passage of labor standards legislation, the passage of legislation establishing the enforcement offices, funding of and rulemaking by the offices, and ongoing enforcement of the laws. By comparing business interests during these phases across the four cities, we can theorize about the role of forms of employer power in shaping the realized outcomes of local labor protections.