Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR HIBA HAFIZ
Hafiz joined BC Law as an Assistant Professor in 2018. She teaches and writes in the areas of labor and employment law, antitrust law, and administrative law and focuses on legal solutions to labor market concentration and inequality. She holds a BA from Wellesley College, a PhD in Comparative Literature from Yale University, and a JD from Columbia Law School. During her doctoral program, Hafiz served as a union organizer for graduate students and then enrolled in Columbia Law to further study workers’ rights. After graduating in 2010, she represented farmworker victims of trafficking as a David W. Leebron Human Rights Fellow at the International Rights Advocates.
What have these twin viral and racial crises revealed about the strengths and weaknesses of our regulation regimes and employment laws? I like to think of the network of laws, regulations, and discretionary enforcement actions in the labor market as a “system” that can create or frustrate access to economic opportunity through work. So while it is crucial to think separately about the particular weaknesses in our labor law regime that inhibit workers’ collective rights, or the specific failures of our anti-discrimination laws to protect people of color, or the decline in labor’s share of national income due in part to rampant wage theft and increases in employers’ bargaining power over workers, it is more important than ever to understand how the disparate statutory and regulatory regimes have worked together to more systemically limit economic mobility. And this requires an understanding of not only where the law has gone wrong as a substantive matter, but also how administrative agencies tasked with regulating the labor market have failed to coordinate information, policymaking, and enforcement actions.
My research has in part focused on documenting and analyzing how and why this “system” is broken, how it has failed so many Americans for whom work is the sole means of economic self-determination. While the New Deal has been heralded as marshaling in a broad social safety net to place a floor on how dire circumstances can get for most Americans through economic crises, that foundational structure of protections—labor protections, minimum wage and maximum hour laws, social security, unemployment, and other protections—were deeply discriminatory. That critical infrastructure of social insurance and workplace protections was riddled with exceptions—political compromises with Southern Democrats—that excluded occupations in which African Americans were predominantly employed from minimum wage, Social Security, labor law, unemployment insurance, and workers’ compensation. This placed a legal restraint on those workers’ economic mobility while white Americans were able to use social insurance and the broadened social safety net to ward off poverty and secure their status in the emerging middle class.
That legacy is still with us, both in how it widened the privilege and economic security white Americans experienced relative to black and brown Americans, and in the persistent realities of workplace- and occupation-based discrimination. Labor and employment law as well as workplace discrimination laws are highly underenforced: Black workers’ wages range between 22 percent and 34.2 percent less than white men with the same education, experience, metro status, and region of residence; black and brown workers are more likely to be victims of wage theft than white workers; and studies indicate that only 30 percent of filed workplace discrimination cases succeed past a summary judgment grant to employers. Agency enforcement is hamstrung by limited resources, placing the Department of Labor, Equal Employment Opportunity Commission, and the National Labor Relations Board in a position of permanent triage, and their resources are abundant compared to most state-level enforcement agencies. As for occupation-based discrimination, black and brown workers are more likely than others to be our front-line “essential” workers—state and local employees, grocery store workers, public transit workers, farmworkers—and are more likely to be exposed to Covid-19 with limited, if any, workplace protections or hazard pay, and have disproportionately higher death rates.
When Congress passed the CARES Act to alleviate the drastic economic consequences of the coronavirus pandemic, it relied on this pre-existing network of delivery systems to buttress American workers and American businesses from collapse. Building on the fruitful collaborations that have emerged from BC Law School’s Regulatory and Business Workshop, my colleagues Diane Ring, Shuyi Oei, Natalya Shnitser, and I developed a Working Paper—Regulating in Pandemic—detailing and analyzing the challenges Congress faced and was in part able to overcome in the short term to balance the need for broad social safety net and social insurance protections, manage systemic economic and financial risk, and encourage critical spatial behaviors to contain Covid-19 transmission. And what we argue there is that, while the CARES Act revealed the dormant potential of our existing institutions to deliver wide-scale relief to individual Americans in an unprecedented way, even that significant effort was not comprehensive, and its success turned on deeper existing fissures and gaps that allow all too many Americans to fall through the cracks. I think it is no accident that Covid-19’s dramatic halt on our economy’s functioning not only bared the limitations of our system in exclusively channeling access to economic mobility through thinly regulated employment opportunities, but that baring those limitations contributed to forcing our collective reexamination of systemic racism.
What short- and long-term opportunities do you see arising from the pandemics for improving how we define and deliver economic justice? We are in a moment of real transition and possibility, and if there is any silver lining from the crises our communities are facing, it is in the generation of tremendous, innovative ideas for restructuring fundamental aspects of our social order to ensure economic justice.
First, what our current crisis reveals are the substantial limitations of linking fundamental entitlement provision through work and our overreliance on the private sector to source those entitlements as a means of correcting for systemic inequality and ensuring economic mobility and opportunity. For example, the crises have made public debates about decoupling health care from work more urgent. And off-siting millions of workers to remote employment and the turn to contactless service may accelerate employers’ transition to and reliance on automation—a transition that will likely displace workers in almost every sector of the economy. In responding to the pandemic crisis, the CARES Act presented our first real opportunity of direct government delivery of social insurance and a social safety net in a world where employers were no longer able, and, depending on the future political climate, may herald a broader transition from employer-provided to more direct government provision of benefits and social insurance.
Second, despite unemployment rising to levels unprecedented since the Great Depression, the consequences of the pandemic on worker safety has led to a real revival in worker organizing and innovative thinking about how to organize with contactless, digital technologies to fight for workplace protections. Since the beginning of March, there have been over 400 “wildcat” strikes where workers have walked off the job over safety concerns, and worker unionizing has expanded in meatpacking plants, fast-food restaurants, Amazon warehouses, bus depots, and grocery stores. The role of “essential workers” in carrying our communities through the pandemic has become the topic of national discussion both in the media and in the halls of Congress with proposals to lift hazard pay. So there are real opportunities to strengthen workers’ power at a time when the United States is suffering Gilded Age-level inequality and declines in real wages and the labor share of national income.
Third, the movement against systemic racism has challenged the role of police unions and their collective bargaining agreements in insulating police officers from being held accountable for racist policing. Decades of reform efforts and research offer scholars, policymakers, and labor movement advocates multiple ways forward, from opening collective bargaining to incorporate community representatives to more aggressive public oversight, that will be critical for ensuring the central role of anti-discrimination in the labor movement going forward.
What is your vision for a post-pandemic world: What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society? Coming out of this challenging moment to build a more equitable society will require widespread restructuring of workplace rights and benefits to guarantee that employment functions as a source of economic mobility and security.
This will mean broadening the breadth and scope of workplace protections under labor, employment, and employment discrimination law. There are exciting opportunities for transformational change already in the works to do this. Last February, the House of Representatives passed the Protecting the Right to Organize (PRO) Act, which provides broader strike protections to workers, adds penalties for companies who retaliate against worker organizing, and extends labor law protections to independent contractors, among other reforms. If the PRO Act becomes law, this will be hugely consequential for expanding rights at work.
We are also in a moment of genuine innovation when it comes to public debates and scholarly interventions on policy reforms within and beyond labor and employment law that would democratize work and strengthen workers’ access to opportunity. For example, the Clean Slate Initiative at Harvard Law School has proposed a suite of reforms from expanding labor and employment protections to agricultural, domestic, undocumented, and other workers to requiring worker representation on corporate boards and bringing community groups to the collective bargaining table.
A post-pandemic recovery will also require refocusing agency attention on both ensuring workers’ bargaining leverage and aligning work law with broader macroeconomic policy goals of reducing inequality and economic growth. Economic growth is strengthened when workers’ wages are not artificially suppressed—whether through wage theft, employers’ anticompetitive conduct, discriminatory wage gaps, misclassification of “employees” as “independent contractors,” or other unlawful conduct by employers—because of the multiplier effect: higher worker pay leads to higher consumer spending in the economy that lifts everyone’s boats. So work law reforms will be a critical component of our economic recovery, but to do it right, we’ll need smart regulation. My prior work—Economic Analysis of Labor Regulation and Structural Labor Rights—has focused on how to integrate what we’ve learned from social science into labor agencies’ work to make sure their policies and enforcement priorities target not only the range of market failures that reduce workers’ bargaining leverage, but to integrate macroeconomic policymaking and analysis into that work.
Finally, a stronger and more just society must be one where losing your job does not mean you lose your health care or other employment-based benefits. Nor can it be one where businesses as well as state and local governments struggling to reopen after the pandemic lack the resources to rehire or hire workers, relegating those workers to increasingly anemic and temporary unemployment benefits, if they are eligible at all. With leaner, distanced workplaces, more contingent work, and increasing displacement of workers through automation, workers already pressed to the brink because of the pandemic and the discriminatory impacts of systemic racism could either fall out of the labor market entirely or be forced to work on contingent bases with very limited workplace rights, protections, or benefits. To avoid the consequences of even worse health outcomes, real unemployment, and declines in labor productivity, it will be critical to create and incentivize public and private employment through stimulus funding and reducing the costs of hiring by publicly providing health care and other benefits. The CARES Act’s direct cash payment to individuals was an effort unprecedented in our history that demonstrated our capacity to target recovery efforts through delivery systems of social insurance beyond employer-based systems, and it can serve as a touchstone for further efforts of ensuring that, where private-sector employment fails, there is a public option that ensures against the ravages of poverty.
As a scholar and teacher writing and teaching in this transitional moment, it is an honor to have a role in educating and encouraging the next generation of BC Law School graduates to shape these important fights and make decisions about how we all care for each other through our work together. This next generation of advocates will decide the outcomes of these complex and challenging issues on labor policy, and they are a hope and inspiration to us all as faculty at BC Law.
Read all faculty Vision Project interviews here.