Building Worker Power in Cities & States:
Workers’ Boards

Background

Workers’ boards — also known as workforce standards boards, industry standards boards, wage boards, or sectoral co-regulation — are government entities that generally consist of workers, employers, and representatives of the public.¹ Since the early 20th century, tripartite boards (focused primarily on setting wages) have existed in a handful of states, including California, Colorado, Massachusetts, and New York. Over the last decade, however, an increasing number of states and cities have established workers’ boards across a range of industries, covering domestic work, agriculture, and nursing homes, among others.² While details vary from model to model, these standard-setting bodies all give workers a formalized role in setting and enforcing labor standards, wage rates, and benefits across sectors, occupations, and regions. 

Simulation of the effects of wage boards on wage distributions suggest that boards more effectively address wage stagnation and inequality than raising minimum pay because boards allow for “raising wages not just for those at the very bottom, but also for those at the middle.”³ By setting standards for pay and benefits across sectors and regions, boards can disincentivize firms from competing with one another by lowering labor standards at the expense of workers. 

Objective of State Intervention

Our existing system of labor law falls critically short of protecting the right to organize and bargain collectively for better wages and working conditions. Workers’ boards can fill in some of the gaps for workers for whom winning union representation under the NLRA is particularly challenging or essentially impossible.⁴

Within sectors with low or no union density, boards can give workers without union representation a voice in determining their workplace standards and conditions.⁵ Workers’ boards can help close racial and gender pay gaps by implementing sector-wide, measurable standards and thus “reducing opportunities for discrimination both directly and indirectly by addressing other causes of pay gaps, such as inconsistent scheduling or a lack of medical or family leave.”⁶

Workers’ boards can also help strengthen the capacity of worker organizations to build membership and power in their communities. For example, boards that include a role for worker representatives, mandate hearings at which workers provide testimony, or allow worker organizations to submit positions or data can catalyze organizing campaigns. 

In addition, such boards offer a promising path to achieving some of the goals of a broad-based system of sectoral bargaining. Given the shortcomings of decentralized, worksite-level bargaining and the challenges to building union density, bargaining at the sectoral level represents a key way for workers to countervail corporate power.⁷ Though not a direct substitute for traditional collective bargaining, boards can enable workers to have a voice in setting standards that apply across sectors and regions, covering categories of workers who might otherwise face challenges to collective bargaining.

Preemption Risk

Since the relatively recent inception of current models of worker boards in the United States, few boards have faced preemption challenges,⁸ and none of those challenges have succeeded. However, many cases remain ongoing. Some local laws have been invalidated outside the courts, whether by referendum or superseding state laws. In addition, state preemption of wage- or standard-setting at the municipal level may impact the viability of city-level boards.⁹

Developments surrounding the hotly contested fast-food workers’ board in California offer clues about future preemption challenges. California AB 257, known as the FAST Recovery Act, aimed to establish a sector-wide labor council composed of workers, advocates, government officials, and fast-food company representatives within the fast-food industry in the state of California. It was signed into law in September 2022 but suspended in January 2023 after fast-food companies garnered enough signatures to put it to a ballot referendum. 

Angelica Hernandez, California Fast Food Council

“In 2018, I went on my first strike while working at McDonald’s for over a decade after learning my rights as a worker. Now, it’s 2024. My coworkers and I have done the impossible to force wealthy corporations and their franchise owners to sit at the table with their workers. I am honored to have been chosen to be at the table.”

REad Angelica’s story

Opponents claimed that the FAST Act would displace the NLRA’s collective bargaining process and interfere with the “free play of economic forces,” setting grounds for preemption. But such challenges would likely have failed because the council would not have impeded private collective bargaining and minimum labor standards are not preempted by the NLRA.¹⁰ It was ultimately repealed in favor of a new bill, AB 1228, which eliminates some provisions of the former bill but keeps intact the structure of a workers’ council that gives workers a seat at the table in determining their wages and working conditions.¹¹

The preemption risk also can be lowered by charging the workers’ board with making recommendations to a government agency instead of setting standards directly. The more that the workers’ board resembles participatory rulemaking, as opposed to direct authority, the more likely it is to survive a preemption challenge.

Options for State or Local Action

I. Broaden the Issues Addressed by Workers’ Boards

In its narrowest incarnation, a workers’ board may engage only in setting wages for a particular sector or category of workers. For example, both New York City and New York State first enacted a $15/hour minimum wage based on the recommendation of a wage board composed of worker representatives, employers, and the public. More ambitious versions of workers’ boards, like the original version of the California fast-food workers’ council, influence other labor standards, such as scheduling, paid leave, training and education, and safety and health guidelines. Other industry-specific wage orders passed in New York State include overtime rates, spread-of-hours protections, and allowances for meals and lodging.¹² Some boards address even broader issues; in New York City, proposed legislation for a nail salon workers’ board includes a provision empowering the board to make pricing recommendations across the industry.¹³

II. Ensure Democratic Selection and Worker Voice

In most cases, a workers’ board consists of representatives from the government, employers, and workers themselves. The selection process for these representatives can vary. From a preemption perspective, the safest approach to selecting worker representatives is to allow workers and unions to nominate candidates to the governmental agency convening the board. Another option is to let workers vote for their representatives. This option carries a higher risk of being preempted, however, as it may be construed as functionally akin to voting for union representation in the collective bargaining process.

Workers and their unions can also be empowered through a public hearing process. The statute creating the workers’ board can require the board to take testimony from the public — both individuals and organizations — in writing and in person. The statute could even designate organizations with sizable memberships as having special status at hearings. To better facilitate unions’ and worker organizations’ ability to provide worker witnesses, the statute could require the government agency to cover the costs of workers’ appearance before the board, including wage replacement for any missed work and reimbursement for travel expenses.

III. Protect Excluded Workers

As entities outside of the purview of the NLRA, workers’ boards could extend a mechanism for worker voice to workers excluded from collective bargaining rights. For instance, Philadelphia and Seattle have created standards boards for domestic workers, who are explicitly excluded from NLRA protections. In 2022, Seattle passed an ordinance granting ride-hail drivers the right to challenge unwarranted deactivations from transportation network company (TNC) platforms before a panel consisting of representatives of both TNCs and worker-drivers, who are otherwise categorized as independent contractors. In New York and Colorado, agricultural workers — similarly excluded from the NLRA — have secured representation on standards boards as well.

IV. Mandate Workers’ Rights Trainings

Training and know-your-rights education can be regulated by workers’ boards. For example, California, New York, and Minnesota all have local legislation requiring training workers on their rights in the workplace.

Worker organizations are well-equipped to deliver training and education to workers, making them key partners in enforcing standards set by boards. In Minnesota, worker organizations certified by the nursing home standards board provide regular workers’ rights training in multiple languages to nursing home workers. The training curriculum must include, at a minimum, information on the standards set by the board, as well as those in federal, state, and local jurisdictions applicable to nursing home workers; how to report violations of these standards; and protections against employer retaliation. Government agencies should consider creating or leveraging existing procurement or grant vehicles to compensate worker organizations for this training, which will make it sustainable for them to provide an important service.

Workers’ Board Policy Tracker

1. See Kate Andrias, David Madland, and Malkie Wall, “Workers’ Boards: A Brief Overview,” Center for American Progress (Dec. 11, 2019), https://www.americanprogress.org/article/workers-boards-brief-overview/; Cynthia Estlund, Part I: The Case for Sectoral Co-Regulation, OnLabor Blog (May 21, 2024), https://onlabor.org/the-case-for-sectoral-co-regulation/. ↩︎
2. Terri Gerstein and LiJia Gong, How Local Government Can Protect Workers’ Rights Even When States Do Not Want Them To: Opportunities for Local Creativity and Persistence Despite Double Preemption, 51 Fordham Urb. L.J. 977 (2024). ↩︎
3. Arindrajit Dube, “Using Wage Boards to Raise Pay,” Economics for Inclusive Prosperity (Dec., 2018), https://econfip.org/wp-content/uploads/2019/02/4.Using-Wage-Boards-to-Raise-Pay.pdf. ↩︎
4. Andrias, Madland & Wall, supra note 67. ↩︎
5. David Madland, Re-Union: How Bold Labor Reforms Can Repair, Revitalize, and Reunite the United States, 16 (Cornell University Press, 2021). ↩︎
6. Aurelia Glass and David Madland, “Worker Boards Across the Country Are Empowering Workers and Implementing Workforce Standards Across Industries,” Center for American Progress (Feb. 18, 2022), https://www.americanprogress.org/article/worker-boards-across-the-country-are-empowering-workers-and-implementing-workforce-standards-across-industries/. ↩︎
7. Sharon Block and Ben Sachs, Clean Slate for Worker Power: Building a Just Economy and Democracy, Harvard Law School Labor and Worklife Program (2020). ↩︎
8. Where minimum labor standards laws have been challenged, plaintiffs have alleged a host of claims other than preemption, including Dormant Commerce Clause, Equal Protection Clause, and state constitutional arguments. ↩︎
9.  Terri Gerstein and LiJia Gong, The Role of Local Government in Protecting Workers’ Rights: A Comprehensive Overview of the Ways that Cities, Counties, and Other Localities are Taking Action on Behalf of Working People, Econ. Pol’y Inst. (June 13, 2022), https://www.epi.org/publication/the-role-of-local-government-in-protecting-workers-rights-a-comprehensive-overview-of-the-ways-that-cities-counties-and-other-localities-are-taking-action-on-behalf-of-working-people/. ↩︎
10. Recent Thing – California Law Creates Council to Set Minimum Work Standards for Fast-Food Industry, 136 Harv. L. Rev. 1748 (2023). ↩︎
11. Julio Colby, California Fast-Food Workers Secure Big Win in Compromise Deal, OnLabor Blog (Sept. 18, 2023), https://onlabor.org/california-fast-food-workers-secure-big-win-in-compromise-deal/. ↩︎
12. New York Department of Labor, Wage Orders, https://dol.ny.gov/wage-orders. ↩︎
13. New York Assembly Bill A9398 (2021), https://www.nysenate.gov/legislation/bills/2021/A9398. ↩︎
14. Terri Gerstein and LiJia Gong, supra note 75. ↩︎
15. Harris County Essential Workers Board, Harris County Essential Workers Board Bylaws (Nov. 2021), https://ewb.harriscountytx.gov/Portals/ewb/LiveForms/2021.11.30_HCEWB_Bylaws.pdf?ver=HfkgfJYkWgQAIZG7nL3GxQ%3d%3d 2-3. ↩︎
16. Saint Paul Mayor’s Office, Labor Standards Advisory Committee, https://www.stpaul.gov/departments/mayors-office/labor-standards-advisory-committee. ↩︎
17. Seattle Government, Responsibilities, Policies and Procedures, Seattle Domestic Workers Standards Board, https://www.seattle.gov/documents/Departments/LaborStandards/DWSB_Bylaws_FINAL.pdf. ↩︎
18. Ken Jacobs & Tia Koonse, Workers as Health Monitors, UC Berkeley Labor Center (July 21, 2020), https://laborcenter.berkeley.edu/workers-as-health-monitors-an-assessment-of-la-countys-workplace-public-health-council-proposal/. ↩︎
19. Jeremy Olsen, Minimum Wage Proposed for Minnesota’s Nursing Home Workers (April 29, 2024), https://www.startribune.com/minimum-wage-of-22-proposed-for-minnesotas-nursing-home-workers/600362495/?refresh=true. ↩︎