Building Worker Power in Cities & States:
Workers Excluded from the NLRA

Background

The NLRA has been criticized for excluding large categories of workers, some of whom are those most in need of labor law protections. The statute explicitly excludes public employees,¹ supervisors, agricultural workers, domestic workers, independent contractors, employees covered by the Railway Labor Act, and “any individual employed by his parent or spouse.”² Numerous other workers are partially or completely excluded from the Act’s coverage, including undocumented workers, rehabilitation workers, incarcerated workers, and certain student workers.

State and local legislation can serve as an important vehicle to partially remedy these deficits. In fact, several state and local governments have already attempted to provide collective rights to workers excluded from the NLRA. However, much more can still be done. And while federal labor law preemption and antitrust law present some challenges for greater coverage, many of those challenges can be overcome.

Objective of State Intervention

States can enact legislation to provide collective bargaining rights for workers excluded from the NLRA. When covering excluded workers, state and local governments can experiment with labor laws that differ from the NLRA model, such as adopting sectoral bargaining systems, providing for majority sign-up, or requiring first contract arbitration.

Preemption Risk

Whether state and local governments can provide collective bargaining rights for a group of workers depends on three questions. The first two concern labor law preemption; the third concerns other forms of federal preemption. First, are the workers actually excluded from coverage of the NLRA? Second, did Congress intend to allow for state or local regulation of the workers’ collective bargaining rights, or did Congress intend to deny the workers’ right to collective bargaining entirely? Third, is state and local provision of collective rights for these workers foreclosed by any other federal law regime, such as immigration or antitrust law?

Workers outside the NLRA can be sorted into four categories, each with its own preemption risk:

Clearly Not Preempted: Public Sector, Domestic, and Agricultural Workers

These workers are clearly excluded from the NLRA’s definition of “employee.” Courts have thus uniformly held that states and localities are free to implement their own laws providing collective rights to these workers.⁴

“We want to do a good job and make sure the house is clean, but we also need to learn what products can be harmful for us. We are cleaning multiple homes and can be exposed to chemicals that hurt our bodies… As domestic workers we need to know our value and prevent our health from deteriorating. Sometimes they want to step on us, treat us badly, but we can educate ourselves and recognize, whether we’re documented or not, our worth and value and amplify our voices.”

Maria Maldonado, Fe Y Justicia (From the National Domestic Workers Alliance’s 2021 survey of domestic workers)

Clearly Preempted: Supervisors and Undocumented Workers

State and local labor laws purporting to provide collective bargaining rights to supervisory workers are completely preempted. Courts have inferred a congressional judgment to preclude any labor rights for supervisors in order to avoid putting them “in the position of serving two masters with opposed interests.”⁵

Meanwhile, workers lacking work authorization are not entitled to the full protections of the NLRA given that two of the Act’s most crucial remedies, the backpay and reinstatement awards, do not apply to them. States cannot fill in this gap by providing for backpay or reinstatement awards because such provisions would be preempted by the Immigration Reform and Control Act of 1986 (IRCA).⁶ 

Preemption Unclear: Student, Rehabilitation, Incarcerated, and Workfare Workers

For these workers, the possibility of state and local labor law coverage is largely unsettled. Most are likely outside the NLRA’s coverage under National Labor Relations Board precedents. But unlike groups of workers expressly excluded from the Act’s coverage, neither the Board nor the courts have clarified whether Congress intended to preclude state and local labor law for these workers. 

States and cities can resolve some of this uncertainty by petitioning the Board for an advisory opinion (under § 102.98 of the Board’s Rules and Regulations) as to whether a given class of workers is covered by the NLRA. However, even when the Board has opined — as it has in the case of medical interns⁷ — courts may not necessarily defer to the Board’s judgment about the scope of the NLRA’s preemptive effect.

States Not Preempted, Cities Sometimes Preempted: Independent Contractors

State or local labor laws covering independent contractors must be analyzed separately due to antitrust law. Such laws are not preempted by the NLRA.

Federal antitrust law has often been applied to prevent independent contractors from acting collectively, considering this to be illegal collusion.⁸ Since the emergence of the gig economy, however, some have argued that gig workers fall within antitrust law’s “labor” exemption.⁹ Furthermore, states are completely immune from antitrust liability and can provide collective rights to independent contractors if they actively supervise the contractors’ bargaining process and can disapprove of bargaining that results in anticompetitive practices.¹⁰ Municipal governments can avoid antitrust scrutiny by either receiving state authorization to regulate independent contractors’ collective bargaining (low preemption risk) or restricting collective bargaining rights to preclude bargaining over wages to avoid allegations of price-fixing (medium preemption risk).

Options for State or Local Action

I. Broad Collective Bargaining Rights Modeled on the NLRA

As noted earlier, state constitutions can be used to establish labor rights for excluded workers. Alternatively, collective bargaining rights can be provided by statute. In either case, state collective bargaining laws could automatically cover any workers excluded from federal labor law. For example, the New York State Employment Relations Act provides collective bargaining rights to all private-sector workers in the state unless the NLRB determines that they are covered by the NLRA. States can also extend collective bargaining rights modeled on the NLRA to particular categories of excluded workers, such as agricultural workers, domestic workers, or independent contractors (subject to the preemption questions above). 

II. Collective Rights Stronger Than the NLRA

States and local governments can turn a major downside of federal labor law — its exclusion of large groups of vulnerable workers — into an opportunity by providing collective rights that improve on the deficits of the NLRA. 

Public Sector Workers: Many of the innovative features adopted for public sector collective bargaining are addressed in Section I above. Another interesting provision in several public sector bargaining laws is interest-based bargaining and first contract arbitration. Often facilitated by mediators, interest-based bargaining provides an alternative to traditional, positional forms of bargaining by promoting a collaborative, trust-based approach to negotiating contracts. Under a system of interest arbitration applied to first contracts, employers are obligated to start the collective bargaining process within 10 days of receiving a written notice from the union and have 90 days to negotiate a contract before either side may request mediation and arbitration. These provisions are critical to ensuring that public sector workers covered by such laws reach effective collective bargaining agreements, addressing the challenge that many workers face under the NLRA in reaching first contracts. 

Agricultural Workers: Fourteen states extend collective bargaining rights to agricultural workers.¹¹ California’s statute departs from the NLRA model in significant ways that make organizing workers easier. California’s Agricultural Labor Relations Act (ALRA) explicitly allows workers to unionize through majority card check recognition, permits unions to engage in secondary consumer boycotts, and more generally gives its labor board the power to depart from NLRA precedent whenever necessary to further state labor policy.¹² 

Ride-Hail Drivers: In 2016, Seattle passed an ordinance providing ride-hail workers with collective bargaining rights.¹³ The ordinance was later amended to limit bargaining to working conditions, rather than wages, to avoid potential antitrust challenges. Notwithstanding this limitation, the ordinance requires ride-hailing, ride-sharing, or taxi companies to supply drivers’ names and contact information to unions wishing to contact them about organizing. The ordinance also provides for interest arbitration in the case of impasse, gives the city veto power over approval of collective bargaining agreements, and allows for public hearings on the substance of those agreements.

“In theory, labor law is designed to protect workers’ rights to organize unions and negotiate collective agreements. But our federal labor law does not fulfill this mission. And so, unless and until Congress fixes the National Labor Relations Act, something that is unlikely given the gridlock in Washington, it is up to the states to offer a better alternative to Uber and Lyft drivers.”

Kate Andrias, Sharon Block, and Ben Sachs in The Commonwealth Beacon

In the intervening years, a number of states have experimented with legislation to extend collective bargaining rights to ride-hail drivers. Most recently, Massachusetts legislators have taken up a bill to create a sectoral bargaining system for ride-hail drivers in the state.¹⁴ If enacted, the bill would require companies like Uber and Lyft to negotiate as a group with any union that represents at least 25% of drivers. Once an agreement is reached, all drivers with more than 100 trips completed in the previous quarter would be entitled to vote on whether to approve the agreement. If approved, the agreement would go to the Massachusetts Secretary of Labor for a fairness check. If the parties could not reach an agreement, an arbitrator would step in and devise fair terms to submit to drivers for a vote.

Legislating new forms of collective bargaining for ride-hail drivers raises concerns regarding the companies’ misclassification of these drivers as independent contractors. With careful drafting and coordination with unions, enforcement authorities, and other organizations advocating for drivers’ proper classification as employees, state policymakers can experiment with legislating new rights for drivers without precluding proper classification actions. 

Domestic Workers: Led by organizations representing low-wage and immigrant workers, such as the National Domestic Workers Alliance, a number of states have enacted Domestic Workers Bills of Rights in order to extend basic protections to workers excluded from the NLRA and many other labor standards provisions. Domestic Workers Bills of Rights have passed in 10 states, two major cities, and Washington, D.C. Protections included in these laws are the rights to:¹⁵

• Fair wage and overtime pay
• Rest breaks
• Written agreements
• Freedom from discrimination and harassment
• Safe work conditions
• Privacy for in-home workers
• Days of rest
• Paid leave

Spotlight: Seattle Domestic Workers Ordinance

Domestic workers are statutorily excluded from a number of federal labor and civil rights laws, including the National Labor Relations Act, the Fair Labor Standards Act, the Occupational Safety and Health Act. In addition, due to the small size of their employers, they also generally do not qualify for protections under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Family and Medical Leave Act. As such, domestic workers face acute vulnerabilities with few statutory protections in their workplaces, which have been characterized by low pay, long hours, and physical abuses.¹⁶ 

Since 2010 after the passage of the first domestic workers’ bill of rights in New York, domestic workers have mobilized to pass a number of policies granting them labor protections at the state and local levels. In 2018, Seattle experimented with a sectoral bargaining approach in its Domestic Workers Bill of Rights.¹⁷ Seattle’s Domestic Workers Ordinance created a Domestic Workers Standards Board with almost half of its members composed of domestic workers and domestic worker organization representatives. The Board can recommend changes to the city standards governing domestic workers. 

1. 29 U.S.C. § 152(2). ↩︎
2. Id. at § 152(3). ↩︎
3. Public-Sector Union Policy in the United States, 2018-2023, Ballotpedia, https://ballotpedia.org/Public-sector_union_policy_in_the_United_States,_2018-present#Relevant_legislation_in_state_legislatures; Priya M. Brannick & Andrew Holman, Grading State Public Sector Labor Laws, Commonwealth Found’n (Sept. 2022). ↩︎
4. See, e.g., United Farm Workers of Am., AFL-CIO v. Ariz. Agr. Emp. Rels. Bd., 669 F.2d 1249, 1256–57 (9th Cir. 1982) (agricultural workers); Bud Antle, Inc. v. Barbosa, 45 F.3d 1261, 1274 (9th Cir. 1994) (same); Willmar Poultry Co. v. Jones, 430 F. Supp. 573, 578 (D. Minn. 1977) (same); Greene v. Dayton, 81 F. Supp. 3d 747, 751 (D. Minn.), aff’d, 806 F.3d 1146 (8th Cir. 2015) (domestic workers); Jackson Cnty. Pub. Hosp. v. Pub. Emp. Rels. Bd., 280 N.W.2d 426, 430 (Iowa 1979) (public employees). ↩︎
5. Beasley v. Food Fair of North Carolina, Inc, 416 U.S. 653, 661-62 (1974). ↩︎
6. See Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002). But note that this case does not preclude backpay for work actually performed, for example, under the Fair Labor Standards Act. See Wage and Hour Division, Fact Sheet #48: Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced by the Wage and Hour Division, https://www.dol.gov/agencies/whd/fact-sheets/48-hoffman-plastics. ↩︎
7. See Kansas City General Hospital & Medical Center, 225 NLRB 108, 109 (1976) (finding that the NLRA preempts state and local jurisdiction over medical interns, residents, and fellows at hospitals). ↩︎
8. See, e.g., Chamber of Com. of the United States of Am. v. City of Seattle, 890 F.3d 769 (9th Cir. 2018) (holding that law creating collective bargaining for gig drivers violated Sherman Act). ↩︎
9. See, e.g., Confederación Hípica de Puerto Rico, Inc. v. Confederación de Jinetes Puertorriqueños, Inc., 30 F.4th 306 (1st Cir. 2022) (holding that independent contractors are within the labor-dispute exemption). At least one Commissioner of the Federal Trade Commission has endorsed this view. https://www.ftc.gov/system/files/ftc_gov/pdf/bedoya-aiming-dollars-not-men.pdf. ↩︎
10. See N.C. State Bd. of Dental Examiners v. FTC, 574 U.S. 494, 507 (2015). ↩︎
11. Samantha Mikolajczyk, Collective Bargaining Rights for Farmworkers, National Agricultural Law Center, https://nationalaglawcenter.org/collective-bargaining-rights-for-farmworkers/. ↩︎
12. Agricultural Labor Relations Board, Fact Sheet, Office of Governor Gavin Newsom, https://www.alrb.ca.gov/forms-publications/faqs-and-guidance/fact-sheet-english/. ↩︎
13. Chamber of Com. of the United States of Am. v. City of Seattle, 890 F.3d 769 (9th Cir. 2018). ↩︎
14. Kate Andrias, Sharon Block & Benjamin Sachs, A New Path for Unionizing Uber and Lyft, CommonWealth Beacon (December 2023), https://commonwealthbeacon.org/opinion/a-new-path-for-unionizing-uber-and-lyft/. ↩︎
15. National Domestic Worker Alliance, Domestic Workers Bill of Rights, https://www.domesticworkers.org/programs-and-campaigns/developing-policy-solutions/domestic-workers-bill-of-rights/. ↩︎
16. Linda Burnham and Nik Theodore, Home Economics: The Invisible and Unregulated World of Domestic Work, National Domestic Workers Alliance (2012), https://www.domesticworkers.org/wp-content/uploads/2021/06/HomeEconomicsReport.pdf. ↩︎
17. Aurelia Glass and David Madland, Workers Boards Across the Country are Empowering Workers and Implementing Workforce Standards Across Industries, Center for American Progress (Feb. 2022), https://www.americanprogress.org/article/worker-boards-across-the-country-are-empowering-workers-and-implementing-workforce-standards-across-industries/. ↩︎