BENJAMIN SACHS INTERVIEWED BY MARTHA MINOW

AMERICAN JOURNAL
of LAW and EQUALITY

To address the role of law in the ways that work and employment are sites of opportunity
but also inequality in the United States, the AJLE editors turned to Professor Benjamin
Sachs, Kestnbaum Professor of Labor and Industry at Harvard Law School and Faculty
Co-Director of the Labor and Worklife Program at Harvard Law School. With thanks for
the help from Madeleine Matsui’s research and the OnLabor blog, https://onlabor.org/,
founded by Professor Sachs, here is a lightly edited version of the interview conducted by
Martha Minow on February 3, 2022.

Martha Minow: The current rate of unionization among workers stands at an all-time
low of 10.3%. In your article Constructing Countervailing Power: Law and Organizing in
an Era of Political Inequality, you propose that social movements and labor law can be
used to counter the outsize political power wielded by the wealthy. How can and should
labor law proceed: should there be more focus on strengthening unions or on alternative
organizations and eﬀorts?

Benjamin Sachs: Let me start by saying that there’s an obvious chicken-and-egg prob-
lem here, which is true in so many contexts. In my view, we need labor law reform to
facilitate the growth of strong organizations of working people, but we need strong orga-
nizations of working people in order to lay the political groundwork necessary for labor
law reform.

And in a more nuts-and-bolts way, we have a ﬁlibuster problem. There was a labor law
reform eﬀort during the Obama administration that would have made a huge diﬀerence,
but it was blocked by ﬁlibuster. The Pro Act would make a huge diﬀerence; it’s being
blocked by ﬁlibuster.1 The political issue is profound.

The Protect the Right to Organize (PRO) Act would reform workplace organizing rules and provide workers with
additional protections in organizing and bargaining. The bill passed the House of Representatives in March 2021
but was stalled due to lack of Senate votes necessary to overcome the ﬁlibuster. See Akela Lacy & Ryan Grim,
Chuck Schumer Tells Labor Leaders PRO Act Gets a Floor Vote with 50 Co-Sponsors, THE INTERCEPT (Mar. 24,
2021), https://theintercept.com/2021/03/24/pro-act-labor-senate-vote-ﬁlibuster/.

© 2022 Benjamin Sachs and Martha Minow. Published under a Creative Commons Attribution-NonCommercial-
NoDerivatives 4.0 International license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00032

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Pero, setting aside the political challenges, our Clean Slate Report lays out in 127 paginas

our answer to your question.2

I’d sum it up by saying we need a complete rewriting of the rules that govern the col-

lective organization of workers.

The law aspires to enable working people to build countervailing power, but it fails.
And yet that’s exactly what we need labor law to do today. We need a law that enables
workers to build countervailing power everywhere corporate power aﬀects their lives. Eso
means a law that allows workers to build power at the level of the workplace, it means at
the level of the industry and in the corporate boardroom, and it means in American
politics also.

Such a law would strengthen existing forms of worker organization, and it would give
birth, hopefully, to new forms, from Works Councils at the level of individual ﬁrms to
more encompassing sectoral unions that would represent all the workers in a sector or
an industry. A law that did these things could help us build a more equitable politics
and a more equitable economy.

That’s no small task, but it’s what’s needed.
Minow: What opportunities does federalism open for experimentation at the state and

local levels to strengthen the labor movement nationally going forward?

Sachs: We might make some progress in some states and cities if we could loosen up
the rules of preemption. I’ve actually done some recent writing on this topic,3 pointing out
a statutory mechanism that the federal agency, the National Labor Relations Board, might
use to free states to experiment. I have some optimism about that!

Minow: What about preemption and other elements of current law?
Sachs: Well, as you know, the Supreme Court has constructed a stiﬂing preemption

regime.

That regime, at ﬁrst look, chokes oﬀ all avenues for meaningful experimentation by
states and cities. But there are some exceptions to the preemption rules that leave states
and cities some room, interstitial though it may be, to innovate.

A major exception, which probably deserves not to be called interstitial, is that any
workers who are excluded from the federal law are not oﬀ-limits to the states. So if you’re

OVERCOMING FEDERAL PREEMPTION: HOW TO SPUR INNOVATION AT THE STATE AND LOCAL LEVEL, CLEAN SLATE FOR
WORKER POWER, HARVARD LAW SCHOOL LABOR AND WORKLIFE PROGRAM (Puede 2021), https://uploads-ssl.webﬂow
.com/5fa42ded15984eaa002a7ef2/608c62c737ad3c6552162141_Clean%20Slate_Overcoming%20Federal
%20Preemption_May%202021.pdf.
Benjamin Sachs, Unpreemption: The NLRB’s Untapped Power to Authorize State Experimentation, ONLABOR ( Ene.
11, 2022), https://onlabor.org/unpreemption-the-nlrbs-untapped-power-to-authorize-state-experimentation/;
Benjamin I. Sachs, Despite Preemption: Making Labor Law in Cities and States, 124 HARV. l. REV 1153 (2011);
Sharon Block & Benjamin Sachs, Is It Time to End Labor Preemption?, ONLABOR (Sept. 11, 2017), https://onlabor
.org/is-it-time-to-end-labor-preemption/.

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BENJAMIN SACHS INTERVIEWED BY MARTHA MINOW

excluded from the National Labor Relations Act coverage, states have the authority to act
on your behalf.

This includes agricultural workers, domestic workers, undocumented immigrant
workers, and under current law probably gig workers. So there’s room there, but—and
this is my as-yet untested theory—there’s this little-known provision of the federal statute,
sección 14(C), which says that if the Board decides that labor disputes in a particular
industry are unlikely to aﬀect interstate commerce then the Board has authority to cede
jurisdiction to the states over that industry in that state.4 The section has been inter-
preted to mean essentially that there’s a small-business exception to the National Labor
Relations Act. But it can be read diﬀerently, and it can be read in a way that if a state
oﬀers to, or does in fact, regulate the industry in a way that minimizes the chance that
labor disputes in the industry will aﬀect interstate commerce, the Board could cede juris-
diction to a state.

On this view, the statute thus contemplates a federal-state partnership between the
Board and a state that’s willing to protect organizing and bargaining rights. Por ejemplo,
if the state of California says, we’re willing to take on regulating the labor relations in, decir,
the fast-food industry, we’re going to give workers these following rights, we’re going to
implement the following rules, and we think that that will eliminate or limit the prospect
for labor disputes. If the Board agrees, the statute gives the Board the discretion to autho-
rize California to go and do it.

Minow: In the meantime, the COVID-19 pandemic has both exposed and exacerbated
the gaps in privileges and protections between vulnerable essential and service-sector
workers and better-oﬀ workers who were able to work from home and adapt to dangerous
condiciones. A survey of essential workers during the pandemic showed that union mem-
bers had safer workplace practices and conditions than nonunion members. Is there an
opportunity now for the labor movement and union organizing to draw attention to
the beneﬁts of union organizing and membership, as well as the tendency of strong unions
to reduce inequality?

Sachs: I love that question. There’s a lot about the pandemic that ought to spur, and in

fact has spurred, worker organizing.

On the downside, it shows just how bad things have gotten for so many workers and
cómo, Por un lado, they’re being rightly told that they’re essential and that they’re
heroes, and on the other hand, they’re showing up and being required to work in deadly
work environments. The upside is that the tightening labor market and conditions have
increased worker activism and worker militancy in many sectors across the country, dirigir-
ing to the upsurge in organizing, at Starbucks and at Amazon, Por ejemplo, including the

Sección 14(C), 29 USC. § 164(C), was enacted as part of the 1959 amendments to the National Labor Relations
Acto. See Sachs, Unpreemption, supra note 3.

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recent historic union victory at the Amazon warehouse on Staten Island. But it shouldn’t
be so hard to organize a union. And that’s labor law’s fault.

Minow: So what can we learn from the recent union victories at Amazon and

Starbucks?

Sachs: I think what the campaigns have in common is incredible bravery of a group of
workers who have put up with too much for too long. And the other thing that they have
in common is massive corporations’ willingness to deploy every resource, legal and illegal,
at their disposal to stop workers from forming a union.

The victories are of historic signiﬁcance because these are, in the contemporary econ-
omy, bellwether industries much as auto companies were bellwether industries in the
1930s when union victories ushered in a new era in United States political economy.
Pero de nuevo, it shouldn’t be so hard to win a union-organizing campaign. Workers shouldn’t
have to put everything on the line to get a union. And the fact that it is so hard is a failure
of labor law.

Minow: How important is the strike tool for those who are allowed to use it?
Sachs: Gosh, it is labor’s most important tool. It is often, and in many instances

desirable that it is, held in reserve.

But it is labor’s most important tool. Without access to this tool, the labor movement is
going to be weakened. And again, we have a story about law. Workers do enjoy a statutory
right to strike, but thanks to a Supreme Court doctrine that’s now decades old, employers have
a right to “permanently replace” striking workers. This is kind of a sad joke among labor law
practitioners and scholars: the law says you cannot be ﬁred for striking; you can just be per-
manently replaced. En otras palabras, the right to strike has been eviscerated in profound ways.
In many contexts now we are seeing an upsurge in strike activity, and you know, allá

were massive strike waves before there was the Wagner Act.

Minow: That tight market in some labor markets may be helpful. It’s risky, obviamente.
The teachers in Chicago were eﬀective in threatening around COVID-related practices.
What do you view as the most urgent reforms that are needed to adequately support
and protect growing numbers of gig workers? Is the California reform helpful, and if so,
cómo? What’s promising for gig workers?

Sachs: It is a complicated question. My view is that gig workers—like Uber drivers, como
DoorDash delivery drivers—are appropriately classiﬁed as employees under existing law.
Workers and industries ought to be able to have ﬂexible employment relationships, pero
the deﬁnition of “employee” is capacious enough that you could have an Uber-like work
system with workers treated as employees. Uber drivers, like everybody else, ought to have
the right to form a union.

Pero, as my other comments will indicate, I’m not a huge fan of the existing labor law.
Even if we succeeded in classifying gig workers as employees, that wouldn’t be enough to
solve the problems that you’re alluding to. The gig sector is one where I think [el] segundo-
toral bargaining approach [might be successful]. Maybe even a tripartite sectoral

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BENJAMIN SACHS INTERVIEWED BY MARTHA MINOW

organizing approach is worth trying. The idea would be instead of organizing ﬁrm by ﬁrm
or bargaining unit by bargaining unit, you would have a union or a group of unions that
represent all workers in the gig space. The union or unions would then sit down with the
employers in the gig space and maybe also with a state government, and bargain standards
and rules for the sector.

One of the great virtues of collective bargaining, including sectoral collective bargain-
En g, is that it is ﬂexible, and it is responsive to the needs of a given industry. I’d be opti-
mistic that if you had that kind of structure in a state like California, you could come up
with rules that worked for the industry but also protected the workers.

Minow: Really interesting. In the meantime, the deﬁnitions of “employee” may have
become somewhat outdated with work-from-home since the pandemic. And more and
more people have digital-related jobs.

Sachs: So, you know, work always changes. Work is always changing and evolving, y
the law needs to respect that and respond to that. But the fact that someone is working
from home should not determine their employment rights; if their terms and conditions of
work are set by a ﬁrm, then we want to count them as an employee of that ﬁrm.

I am very worried that the remote work will be our new subcontracting, franchising,
and independent contracting. It’s what David Weil describes as the “ﬁssured workplace,"
subdividing work and undermining the protections of labor law.5 We have to be on guard
about that possibility.

Minow: Also the digital revolution: what do you think about the role of AI in the
workplace? It’s been much criticized for amplifying bias in hiring and employment,
though the Wall Street Journal has a story today about how it can reduce bias.6 In the
meantime, digital platforms like LinkedIn and other devices bypass employment laws such
as those against racial bias—employers can see a photo before they even decide to inter-
view a candidate. What is promising and what’s worrying about these new technologies
when we think about inequality?

Sachs: I don’t consider myself an expert on AI, though increasingly I think I need
to become one. We have had a marvelous series on the blog written by a Harvard Law
alumno, Hannah Hilligoss.7 What she taught me and convinced me and what seems right
to me is that algorithmic hiring methods do not eliminate bias and can inject new forms of

DAVID WEIL, THE FISSURED WORKPLACE: WHY WORK BECAME SO BAD FOR SO MANY AND WHAT CAN BE DONE TO
IMPROVE IT (2017).
Nish Parikh, Understanding Bias in AI-Enabled Hiring, FORBES (Oct. 14, 2021), https://www.forbes.com/sites
/forbeshumanresourcescouncil/2021/10/14/understanding-bias-in-ai-enabled-hiring/?sh=2520f6927b96; Ricardo
Vanderford, AI Could Cut Hiring Biases as Companies Make Push to Find Workers, Proponents Say, WALL ST.
j. (Feb. 2, 2022), https://www.wsj.com/articles/ai-could-cut-hiring-biases-as-companies-make-push-to-ﬁnd
-workers-proponents-say-11643797804.
Hannah Hilligoss, What’s the Deal with Algorithmic Discrimination?, ONLABOR (Mar. 10, 2021), https://onlabor
.org/whats-the-deal-with-algorithmic-discrimination/.

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bias and compound existing forms of bias. Just like we need better mechanisms for rooting
out bias in human hiring, we need to do that for the algorithmic processes too.

Minow: Here’s a question I have after watching, actually, a relatively successful eﬀort by
a union. Something good recently—the diversity within the relevant group included sharp
conﬂicts over what to bargain for, and it is really hard to navigate, so when some people are
working twelve-hour shifts and other people don’t have that situation but instead have
worries about objecting to an employment practice without facing retaliation. What are
the lessons that can be learned from all these years of union work? We know histories of
racism and sexism, and other diﬀerences within the employee groups. People allegedly in
the same industry really had very diﬀerent interests, and who speaks for whom?

Sachs: That’s a very thorny and important question. One way it’s dealt with, or how
unions attempt to deal with it, is by forming smaller bargaining units that have diﬀerent
contracts for diﬀerent kinds of workers. The upside of separating bargaining like that is
that you can be more responsive to the needs and interests of a smaller group of people.
The downside is, as you disaggregate bargaining units, you disaggregate power. And so
you can be more focused but less eﬀective.

Another approach is to have one bargaining unit, one union, por así decirlo, and negotiate
for diﬀerent job categories. Inevitably, if there’s one table and one contract, the temptation
or the risk is that the interests of one group are traded oﬀ against the interests of the other.
There’s a certain inevitability to that, but it needs to be addressed and mitigated.

Some trade-oﬀs we can’t allow. And what segments of the union movement did allow
for too long was prioritizing the interests of white workers over the interests of workers of
color and prioritizing the interests of male workers over the interests of women workers.
The union movement has better addressed these issues in recent years but still has work to
do in order to resolve them more fully.

When the question is, how do we deal with the somewhat conﬂicting interests of new
hires versus folks who have been around for a much longer period of time, the principles
of solidarity are critical.

Minow: What about people who are under pressure from their supervisors to lie in

order to make it seem like the contract and the law is complied with, when it is not?

Sachs: This is one powerful example, of many such examples, of what happens as a

result of the power diﬀerentials in the workplace, which are far too vast.

At the end of the day, you address that by addressing the power diﬀerential. De nuevo,

that’s what labor law is supposed to be about.

Minow: One of the tools to help is transparency—making workplace interactions more
visible—but this also could lead to more constraints on workers as they are monitored or
otherwise face surveillance. What do you think about that?

Sachs: Transparency is important, but even transparency fails if there’s not a relatively
equal distribution of power. So I would return to the question of how you empower
workers to demand their own rights in the workplace.

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BENJAMIN SACHS INTERVIEWED BY MARTHA MINOW

Minow: Given features of our current situation, what are your predictions or your as-
sessments: opinion-poll support for the workers suggest support for labor,8 and President
Biden is perhaps the most pro-labor president in a long time. And the tight job market
should help increase leverage for workers. What policy options are possible now? Qué
would you most like to see progress on?

Sachs: This in some sense the million-dollar question today. The tight job market will
help workers, but workers need a way to institutionalize their power to institutionalize
their voice.

A tight job market empowers individual workers in certain ways that are real, and I’m
grateful for those. But in order to eﬀect systemic change, we need to equip workers with
some kind of institutional mechanism to channel that power. That’s what unions are.
Institutions now don’t have to be unions like those we’ve had for the last ﬁfty years,
but there must be some form of collective organization of workers. To get that you need
law; I mean, that’s what labor law is.

I was disappointed the PRO Act failed, and I don’t think there’s really much of a
chance of that passing given the ﬁlibuster. There’s some hope that some of the enhanced
penalties that were in the PRO Act will make it through the reconciliation process. Y,
de nuevo, in my view, what we really need is a fundamental reform along the lines we pro-
posed in Clean Slate.9

In the meantime, we do have the most progressive general counsel of the National
Labor Relations Board ever. Jennifer Abruzzo has been phenomenal. She is trying to re-
write the way that the prosecutorial arm of the agency operates; she is using every possible
mechanism she can within the constraints of this broken law to advance the interests of
working people. She deserves enormous credit. President Biden deserves credit for ap-
pointing her. If there’s one person in the federal government who is really the strongest
advocate for unions and working people in my political memory, it’s Jennifer Abruzzo.
She should get credit for what she’s doing.

Minow: I have so many more questions. I can’t resist one about globalization and the
downward pressure on all kinds of jobs—pay, conditions—because of globalization. Él
aﬀects white-collar jobs, all kinds of jobs.

Sachs: It feels like an age-old question at this point. I don’t have a pat answer to the
really important question. There are industries that are more or less insulated from global

Public opinion of unions has also reached a historic ﬁfty-year high. A recent Gallup poll showed that sixty-eight
percent of Americans approve of unions. See Megan Brenan, Approval of Labor Unions at Highest Point Since
1965, GALLUP (Sept. 2, 2021), https://news.gallup.com/poll/354455/approval-labor-unions-highest-point-1965
.aspx.
SHARON BLOCK & BEN SACHS, CLEAN SLATE FOR WORKER POWER: BUILDING A JUST ECONOMY AND DEMOCRACY, https://
www.cleanslateworkerpower.org/.

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economic pressure, aunque. If you want to hire an Uber driver in San Francisco, your Uber
driver has to be in San Francisco.

At the end of the day, if the labor market is bigger than a domestic jurisdiction, cual
it undoubtedly is, then unionization eﬀorts and labor legislation or employment standards
legislation need to be global also.

Minow: And I guess my last one concerns occupational health and safety. El
Supreme Court has told us that the transmission of COVID in the workplace is not
enough to justify workplace protections.

Sachs: I hope this doesn’t seem like a non sequitur, but your question reminds me of a
student’s reaction to Clean Slate’s proposal for sectoral bargaining. She said, “But won’t
the Supreme Court reject such an eﬀort as a non-delegation problem beyond the scope of
administrative authority because it is beyond what Congress has speciﬁed?” Of course it’s
important to think through those doctrinal questions very carefully. It’s true that if you’re
going to design progressive legislation, it ought to be designed in the manner that’s least
likely to be invalidated by the Supreme Court. Al mismo tiempo, the justices have so many
herramientas, now, that they’re willing to deploy: the First Amendment, the Takings Clause,
non-delegation, you name it—so any progressive legislation is just at risk.

We need a new kind of answer to your question. It may be what do we do about the
Supreme Court; it may be thinking more and more about popular mobilization. It’s a
long-winded way of saying it’s not just OSHA, it’s nearly every area of law. With powerful
tools in their hands—like the First Amendment, like the Takings Clause, como
non-delegation—the Supreme Court can strike down nearly all progressive legislation.
We need a response that’s as broad as the challenge.

Minow: Then there’s money in politics, and John Coates’s research says that half the

First Amendment cases beneﬁt corporations and trade groups.10

Is there anything else I should have asked you? Thanks for electrifying students and

pointing them to meaningful careers.

Sachs: Let’s talk another time about what the coming generation can do.

John C. Coates, Corporate Speech & the First Amendment: Historia, Datos, and Implications, 30 CONST. COMMENT.
223 (2015), https://scholarship.law.umn.edu/concomm/546/.

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