Why Congress should pass the Wage Act

Much has been said in recent years about the decline in unionization and the underlying reasons. True, there are many causes for this decline, but an obvious one is an antiquated, weak labor law.

Experts ranging from the International Monetary Fund to former Treasury Secretary Larry Summers have reported that the decline in unionization and collective bargaining has produced historic levels of income inequality and flat or falling wages for workers. And at the workplace level, most employees lack the opportunity to exercise a real voice at work – to negotiate with their employers over pay, scheduling, benefits, and other issues that matter most to them.

A Ford F-150 truck during assembly at the Ford Dearborn Plant in Dearborn, Michigan
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A Ford F-150 truck during assembly at the Ford Dearborn Plant in Dearborn, Michigan

The decline in union density has not, however, eliminated the desires, and needs, of working people for improved wages and working conditions. Over the past year, we've seen a resurgence of worker activism, from the energetic campaigns by Silicon Valley drivers who have joined the Teamsters to the "Fight for $15" minimum wage. These workers have managed to act collectively, despite a weak and outdated law that has failed to keep pace with a changing workplace in a global economy.

Our nation's labor law was enacted 80 years ago, in the midst of the Great Depression, to protect the right of workers to organize into unions and increase their purchasing power through collective bargaining with their employers. Efforts to meaningfully reform the law in the last four decades have all failed.

The basic ideals of our labor law remain vital to a democratic society, but we need to look broadly and creatively at how to revitalize and modernize that law to fit today's workers, workplaces, and economy. For example, various aspects of our existing law actually encourage, rather than discourage, adversarial relations between labor and management, especially the contentious process for securing union representation. And our existing bargaining unit model of union representation is both too restrictive of employee voices at work and out of sync with a hyper-competitive and churning economy.

While a comprehensive re-examination of labor law is not likely right now, workers depend on the current law to protect their rights, even though the remedies are too weak to deter violations or to compensate the victims of unfair labor practices. Unlike other laws, such as those governing workplace safety and child labor, there are no penalties in labor law for employers who illegally retaliate against workers who exercise their rights. And if workers are illegally fired, they receive no compensation for any consequential damages they may have suffered, such as loss of a home or medical expenses. The most they can recover is the wages they would have earned minus what they earned in the meantime – the employer pays no premium. Any back wages they do recover are generally received years after they are fired.

Recently, Sen. Patty Murray and Rep. Bobby Scott introduced the Wage Act – a modest but important piece of legislation to strengthen protections for workers seeking to exercise their collective voice at work. Their effort to start a much-needed conversation about our outdated labor laws is to be applauded.

The Wage Act will strengthen protections for workers by adding meaningful back pay remedies and penalties, requiring quick preliminary reinstatement of workers who face retaliation for exercising their rights, and other important reforms. It's not a panacea, and it's not the comprehensive reform that is needed to restore the promise of American labor law. But for countless workers who are joining with their co-workers to advocate for meaningful improvements on the job, it's an important start. As importantly, it allows us to start a conversation that is long overdue about how best to restore the promise of our labor laws and help rebuild the middle class.

Commentary by Wilma B. Liebman, a former chairman and member of the National Labor Relations Board (1997-2011) and a visiting distinguished scholar at Rutgers University's School of Management and Labor Relations.