Abstract
Labor law has long been the exclusive province of the federal government with state and local policies choked off by the operation of preemption doctrine. But the longstanding rules of labor preemption have been destabilized by recent attacks emanating from both the executive and judicial branches. This Article addresses the question of whether labor preemption is good or bad for union organizing. It aims thereby to enable a wide range of actors·including executive branch officials, congressional representatives, labor movement organizations, and employers·to decide whether federal labor preemption is worth preserving. To this end, the Article illustrates what states and cities have done, despite current preemption restrictions, as a means of helping to predict what states and cities might do in the absence of those restrictions. And it describes the range of policies that would be possible if National Labor Relations Act (NLRA) preemption were eliminated.
The Article shows that the potential impact of the pro-union reforms that would be possible in the absence of preemption dwarfs the potential impact of anti-union reforms: There are 46 million union members to be gained and 2.25 million to be lost. The Article also raises some concerns about preemption reform by demonstrating that the costs of such reform would, at least initially, be borne by workers in red states, which means that those costs would be borne by southern workers, many of whom are workers of color. But the Article also argues that preemption reform could fuel a dynamic, wherein policy innovation in Democratic states leads to union growth in those states that, in turn, provides the political power needed to shift partisan control in Republican states. The ultimate result of such a dynamic being labor policy reforms favoring union growth in states previously controlled by the Republican Party, including states across the South. The Article’s aim is thus to establish the reasons for both supporting and opposing preemption and thereby to inform decision-making on a question of the utmost importance not only to labor policymakers, but also to workers, employers, and unions.
ABOUT THE AUTHORS
Ben Sachs is Faculty Co-Director at Center for Labor and a Just Economy and Kestnbaum Professor of Labor and Industry, Harvard Law School.
John Fry (HLS J.D. ’25) is a Staff Attorney at UNITE HERE Local 25 in Washington, D.C.
