JANUARY 5, 2016
After a banner year of labor victories, 2016 may have an even bigger impact on workers.
The year 2015 was widely regarded as a reinvigorating one for the labor movement, with federal administrative rulings and local minimum wage ordinances breaking workers’ way. Last year, however, merely set the stage for a much more consequential 2016. This year could either go very badly or very well, depending on a whole host of labor prospects.
The year 2016 could be the one that a majority of the United States becomes right-to-work. It will be the year that the Supreme Court decides one of the most consequential union cases in decades. While the Obama administration’s labor legacy was polished in 2015 with new Department of Labor rules and a blockbuster NLRB decision, 2016 could see even more such rulings. The elephant in the room—the Trans-Pacific Partnership—could tarnish Obama’s labor record, though the trade deal’s passage is more uncertain than ever. And finally, what will happen with the Fight for 15 this year? Will it maintain its surging momentum, or will it wither?
A Right-to-Work Nation?
Last year, Wisconsin Governor Scott Walker raised the number of right-to-work states to 25 when he pushed through that legislation in his state. In 2016, high-stakes political developments will determine the fate of such laws in at least three states: West Virginia, Kentucky, and Missouri.
The West Virginia Senate President Bill Cole has said that he wants to “beat Kentucky to the punch” by making his state the 26th to go right-to-work. Cole, who is trying to unseat Democratic Governor Earl Ray Tomblin in 2016, says he expects right-to-work legislation to be introduced very early in the new legislative session. If the bill passes in the two chambers—an outcome of which Republicans are confident—Tomblin would almost certainly veto it. However, in West Virginia (once the home of what was in the early 20th century the nation’s most powerful union, the United Mine Workers), the legislature needs only a simple majority to override a gubernatorial veto.
In Kentucky, conservatives have overcome the political roadblock to passing statewide right-to-work by passing such laws on a county-by-county basis. Unions challenged the constitutionality of those laws in the courts, but a federal judge has yet to issue a ruling. However, that strategy may not be necessary much longer thanks to conservative Republican Matt Bevin’s upset victory in the race for the Kentucky governor’s seat. Bevin is making right-to-work—in addition to rolling back voting rights and Medicaid—a top priority. The only thing in his way is the Democrats’ control of the Kentucky House of Representatives. But their majority is fragile and Republicans are gunning to win control of the state’s lower house in the 2016 state elections. If Democrats lose the House, right-to-work is as good as guaranteed.
Missouri saw its share of right-to-work political drama last year when the Republican-controlled House and Senate passed such legislation, only to see it vetoed by Democratic Governor Jay Nixon. They then failed to muster a supermajority to override. The state GOP seems to have accepted defeat for the meantime—the Missouri speaker recently voiced skepticism that Republicans would try to pass right-to-work again in the next session.
But Nixon’s term is up in 2016 and as Paul Blumenthal reported for The Huffington Post, conservative mega-donors are jostling to shape the Republican gubernatorial primary, in which all candidates have pledged to sign a right-to-work bill. Expect a windfall of political money from corporate Republicans, and to a lesser extent, the state’s labor unions.
The Future of Public-Sector Unions
This year, the Supreme Court—prodded by Justice Samuel Alito—could open the door for right-to-work in the public sector as well. At stake in Friedrichs v. California Teachers Association, a right-wing-funded case that the court will hear next week, is the right of public-sector unions to require fair-share fees from non-members. Such a requirement, advocates argue, is essential to address the free-rider problem and, more fundamentally, to keep public unions afloat.
The labor movement is broadly uniting around the case, simultaneously preparing for the worst by shoring up local union member rolls and launching public education campaigns about the importance of preserving public-sector unions. While the rate of unionization in the private sector is down to near trace elements (6.6 percent), in the public sector, where employer opposition to unionization is nowhere near as uniform as it is in the private sector, the rate is a more robust 35.7 percent. If the Court comes down with a worst-case decision, public sector unions could begin shrinking like their private sector counterparts.
The Fate of $15 in ‘16
Perhaps the biggest surprise of 2015 was the success of the Fight for 15—how many of the country’s largest cities passed $15 minimum wage ordinances, and how effectively it became embedded in the nation’s political discourse. Now that $15 has become a reality in some liberal coastal metropolises, the question is whether it can be enacted in the mid-size cities spattered across the heartland. Republican-controlled states are racing to pass laws that preempt its liberal cities from hiking minimum wages.
In the meantime, the fair-wage left is taking wins anywhere it can get them. The University of California system became the first higher education institution to raise its minimum wage to $15, and New York Governor Andrew Cuomo has indicated interest in doing the same for his state’s higher education system. A number of states’ ballots in 2016 will include initiatives for significant minimum wage hikes, building on the surprising success such measures had in red states in 2014. (In California, two rival SEIU bodies have each floated their own statewide initiative for a $15 minimum—a conundrum crying out for a traffic cop.) The ultimate challenge for the Fight for 15 remains whether the workers who began it can pressure McDonald’s and kindred fast-food behemoths to raise their wages to that level and to accede to the workers’ demand for a union.
That pathway could be made easier if the NLRB holds McDonald’s accountable as a joint employer with franchisees—another question to which we’ll likely see an answer in 2016.
More from the DOL?
As Politico’s Morning Shift reports, Obama’s Department of Labor had a productive 2015. The year 2016 may be busier yet, with the anticipated release of three rulemakings: the fiduciary rule (which would curb investor abuses of workers’ retirement funds), the silica rule (which would more strictly regulate worker exposure to the harmful dust), and the much-anticipated new overtime rule (which would double the salary threshold that qualifies for overtime). A recalcitrant Congress could potentially bat down the overtime rule.
These labor rulings are part of a fourth-quarter drive from Obama’s White House to shore up his record on workers’ rights. However, such progress, labor advocates argue, is blighted by the administration’s crafting of, and lobbying for, the TPP trade deal. Last year, the labor movement tried and failed to stop Congress from passing a fast-track procedure to ease TPP’s ratification. However, with Bernie Sanders, Hillary Clinton, and Donald Trump all opposing the deal as they campaign for the presidency, the TPP itself won’t even be brought before Congress until after the 2016 election. Count on labor unions to launch a full-scale lobbying effort to kill the deal when it is brought up, and big business to throw untold millions into its lobbying campaign to have it passed.
On-Demand Laws In Demand
Seemingly everyone has an opinion on the rise of the on-demand economy—from economists to unions to presidential candidates. There’s endless disagreement over how big it actually is, how good it is for the economy, and how bad it is for workers. Among liberals, though, there’s a growing consensus that there needs to be some sort of regulatory solution that gives on-demand workers a safety net.
At the center of that debate is ride-hailing app Uber, which is adamant that its drivers are not employees and thus offers them none of the protections that employees would enjoy. Increasingly, Uber drivers are filing class-action lawsuits arguing that the company misclassifies them as independent contractors and is bilking them of pay and benefits. And though a judge recently dealt a minor blow to the biggest suit in California (agreeing to defer his ruling until an appellate court rules on his decision to make all Uber drivers in the state eligible to receive payouts should he so decide), these actions are indicative of a growing desire among workers in the on-demand economy to reclaim what should rightfully be theirs.
Most notably, on-demand drivers in Seattle recently convinced the city council to pass a law allowing such independent contractors to be allowed to unionize. The law will almost certainly be challenged, and how it plays out in the courts could set the labor law precedent for workers’ rights in the on-demand economy.
A Loss (or Migration) for Labor’s Voice
Finally, some news that hits a little closer to home here at the Labor Prospect. For more than a decade, the Prospect’s own Harold Meyerson has been the leading voice on worker-related issues on The Washington Post’s opinion pages. Unfortunately, the newspaper recently decided to let him go, a casualty, the paper said, of the dearth of social media clicks his columns generated, and because he chose to focus many of his columns on “unions and Germany”—or, as Meyerson translated that, on worker power and alternative corporate structures.
As presidential candidate—and Washington’s only other publicly avowed democratic socialist—Bernie Sanders tweeted: "There are few progressive voices in corporate media. Harold Meyerson is one of the best. His insights will be sorely missed by Post readers."
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