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HomePanel 2C: Critical Perspectives on Labor and Work

Panel 2C: Critical Perspectives on Labor and Work


 

Will Automation Liberate the Working Class. . . or Further its Immiseration?

 

Thomas Kleven

 

This paper explores the implications of the fact that automation is likely to eliminate or greatly reduce the need for wage labor in the coming years.  This eventuality raises the question of whether automation will inure to the benefit of workers by freeing them from the need to sell their labor power in order to support themselves and their families, or whether it will operate to the detriment of workers by making their labor power superfluous and subjecting them to heightened domination.  The answer depends on who controls automation, a ruling elite that manages the process for its own advantage or the people themselves through some form of egalitarian democracy.    

 

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Work, Re-Imagined

 

Saru Matambanadzo

 

Left legal thought, drawing on its historical genealogy as descendants of critical theorists schooled in Marxism, has long lauded paid work for all as one of its primary objectives. Like many Marxists, left legal thinkers (often themselves workaholics and individuals who derive identity, subsistence, and even joy from paid work) treat work as a central part of what makes us who we are.  Work, on some level, makes us be.  We are unintelligible without the work we do. And we construct our law reform projects to address that.  From efforts to open private employment to women and people of color, to efforts to regulate hours and wages, to the commitment to and education system that serves all students, work, in particular meaningful paid work, has been a cornerstone of our collective aspirations and political objectives. However, paid work has also been the cornerstone of our social welfare system. Paid work – with its attendant benefits and the salary it provides – has not always been useful. Mad men pitch advertisements to companies that cannot afford to diversify into products that the public neither wants nor needs. And make work jobs programs – whether in the form of military service and industry or in the form of an expanding carceral police state – have become crucial in ensuring that certain segments of the population – particularly those segments designated as white and male – receive minimum access to “good jobs” and have something to aspire to. Furthermore, many of us are actually in an abusive relationship with work.  And as more and more individuals are increasingly shunted into WalmartMcJobs which rely on government assistance to supplement low wages or are forced into the tumultuousness of the sharing economy, the benefits of work become more elusive and uncertain. Even education, with the union busting privatization of public schools by the charter movement and the mass adjunctification of the university professoriate, is not exempt.  During this moment, in neoliberal late capitalism, it is time to upend and denaturalize our valuation of work as a suitable goal for left legal movements. As part of the ClassCrits project, I urge us to turn a critical eye to work.  This essay will argue that our valorization of paid work in left law reform projects is not only unimaginative and may even, but also misguided.  Centering paid work as a right has actually led to the dehumanization of persons and their commodification into “workers.” Paid market work, far from making us free, should be regarded as a coercive institution that needs to be reformed, revamped, and re-imagined. 

 

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Ruben J. Garcia

Professor of Law, Associate Dean for Faculty Development and Research

University of Nevada, Las Vegas

William S. Boyd School of Law

4505 South Maryland Parkway

Box 451003

Las Vegas NV 89154—1003

ruben.garcia@unlv.edu

 

The Labor-Community Coalition in the 21st Century:  The Las Vegas Culinary Union

 

The 2016 elections exposed class and racial fissures that have lingered for some time, resulting in some major defeats for progressive candidates.  There were some victories, however, such as in Nevada where Catherine Cortez Masto was elected as the first Latina U.S. Senator and Democrats regained control of the Nevada Legislature. This paper will examine the political coalitions between union members and community members in the 2016 elections in the Las Vegas area as a template for labor-community coalitions.

 

The electoral success of the Culinary Union suggests that their focus is on being a political union which obtains results in the state legislature. Instead, their experience shows gains at the bargaining table in addition to legislative successes.   In this paper, I will argue that the Culinary defies previous distinctions between economic and political unions, with lessons for the future of the rest of the labor movement.

 

The success of the Culinary Union and its allies suggests an approach that does not privilege either class or race over each other but instead sees the two as uniquely intertwined in the immigrant experience.   The Citizenship Project of the Union bore fruit both in terms of larger numbers of citizens voting in the elections but also a greater sense of civic participation.

 

This paper uses the experience of the movements in Nevada to look at ways low-wage union workers and noncitizens can participate in movements that are organized by labor unions.  The Las Vegas Culinary Union experiences raises important lessons about organizing through both class and race in the coming years.

 

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A. Nicole Hallett

Assistant Clinical Professor

University at Buffalo School of Law

 

The Problem of Wage Theft

Millions of workers in the United States are paid less than the minimum wage, notwithstanding minimum wage laws. Even more low-wage workers – workers making at or below the minimum wage – are not paid overtime. A 2009 study by the National Employment Law Project found that 76% of low-wage workers in Chicago, Los Angeles, and New York experienced at least one pay-related violation in the previous week. Although estimates are hard to come by, it is almost certain that low-wage workers lose tens of billions of dollars per year to wage theft. Wage theft leads to severe consequences for low-wage workers. A Department of Labor study found that wage theft lowers a minimum wage worker’s income by an average of 37-49% when a violation occurs. When a full-time minimum wage worker only makes $15,000 a year, a third to a half reduction in income can mean the difference between barely making ends meet and falling into extreme poverty. 

The reasons that so much wage theft exists are not hard to understand. Despite the pervasive and widespread violation of the minimum wage and overtime laws, few employers are ever caught committing wage theft and fewer still ever pay back stolen wages. Enforcement of minimum wage and overtime laws occurs mostly through complaints filed by individual workers, but most workers never file a complaint when they are victims of wage theft. Many never know that they have been cheated or have been conditioned to accept it. A low-wage worker who does decide to come forward to try to recover lost wages faces severe obstacles. Workers can file a wage complaint with the U.S. Department of Labor or an equivalent state agency, but resource constraints mean that most of these complaints go uninvestigated. Filing a lawsuit in court requires finding a lawyer, which most low-wage workers cannot afford. The decision to complain about workplace violations requires workers to engage in a cost-benefit analysis with the potential costs in most cases being high. Workers who complain risk being fired or retaliated against in other ways, such as being reported to immigration authorities if they lack immigration status.

Even when a worker does file a complaint and a violation is found, there is a high likelihood that the worker will never see their stolen wages, particularly in low-wage industries where wage violations are the most common. Unable to win on the merits, many employers engage in a variety of tricks to avoid paying wage judgments, including filing a fraudulent bankruptcy petition, transferring assets to third parties, closing or selling the business for little or no remuneration, or in some cases disappearing altogether.  The fact that a judgment can be so easily avoided gives workers little incentive to file complaints and, consequently, it gives unscrupulous employers little incentive to comply with minimum wage and overtime laws in the first place.

States have begun to address the problem of wage violations by enacting legislation designed to further deter employers from violating the law, mostly through increased penalties, or that attempt to make collection of wage judgments easier. In some states, employers are now liable for treble damages if they fail to pay workers the minimum wage. In others, workers can seek a pre-judgment attachment order to prevent employers from hiding assets after a suit has been filed, or can put a lien on property owned by an employer. Some states and localities require employers in certain industries to post a bond in order to receive regulatory licenses. These solutions may increase compliance and decrease the number of workers unable to collect on wage judgments at the margins, but do nothing to solve the core structural issue behind the problem: employers in low-wage industries have built wage theft into their business plan. When caught, the money to compensate workers often doesn’t exist, and no amount of penalties, or the ability to obtain a lien or prejudgment attachment will cause it to materialize out of thin air.

This Article examines how existing solutions to the problem of wage theft have so far failed to substantially lower the rate of wage theft in the United States. It argues that the reason that these solutions have failed is that they misunderstand the incentives that employers have and how wage theft functions in low-wage industries. It then discusses several new, innovative policies that could actually work to lower rates of wage theft.

 

 

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The Legacy of Greenwashing

Stephen Lee

 

The term “greenwashing” refers to the strategic use of environmental concerns to justify, defend, or advance anti-immigrant policies.  The most notable example was the attempt by nativists in the 1990s to elect a slate of leaders in the Sierra Club who sympathized with “closed borders” and other anti-immigrant policies.  The Sierra Club’s membership ultimately rejected the nativist platform, but in doing so, it did not then commit itself to the immigrant rights movement.  Rather, Sierra Club leadership embraced a position of neutrality, vowing to stay out of immigration reform debates altogether.  Although the Sierra Club’s membership ultimately rejected a hard-turn towards nativism, the episode sheds light on the environmental movement’s uncomfortable relationship with the immigrant rights movement, both of which are fixtures of the modern manifestation of the political left. 

 

This paper hopes to do at least two things.  First, given the paucity of legal scholarship addressing the topic, this paper hopes to fill out the descriptive picture surrounding the greenwashing narrative.  Historians and scholars have noted that much of the intellectual foundation of the greenwashing movement begins with the publication of The Population Bomb in 1968 by Stanford conservation biologist, Paul Ehrlich and then culminates with the attempted hostile takeover of the Sierra Club in the 1990s.  Because this particular strand of environmental conservationist history cannot be divorced from modern immigration policy, I want to spend some time reorienting this narrative so that it accounts for major shifts in immigration policy.  For example, a number of environmentalists testified before Congress during the 1980s in favor of “zero population growth” policies in the years leading up to the passage of the Immigration Reform and Control Act of 1986, the Act that famously created a mass legalization program for unauthorized immigrants in the country.  At a key moment in our modern immigration history, nativists in the guise of environmentalism mounted an attack on the legislative expansion of immigrant rights.  This connection should not be forgotten.   

 

A second goal of the paper is to assess the Sierra Club’s position of neutrality in light of emerging political, economic, and legal realities.  While continuing to maintain a “no position” approach to immigration, the Sierra Club (along with other environmental organizations, advocates, and scholars) wholeheartedly pursues other environmentally-focused programs such as those that foster sustainable consumption practices—that is, modes of production, distribution, and consumption that attempt to conserve natural resources for future generations.  But a growing number of consumers, advocates, corporations, and law enforcement officials have begun to broaden the definition of sustainability to include working conditions and impact on those who work within a particular industry.  In other words, rather than focusing only on metrics such as energy efficiency or environmental impact, this new definition also accounts for working conditions such as whether a farm turns a blind eye to sexual and physical assault of immigrant women or a shrimp boat engages in economic exploitation like slavery.  Thus, as sustainability frameworks continue to account for the human costs of production, conventional notions of sustainability predicated on environmental harms only will begin to collapse.  No longer can environmental advocates defend the interests of future generations without also addressing the inequities that define the lives of the current generation.