“Freedom versus Fairness: The Tension Between Free Market and Populist Ideals in Labor,” a symposium sponsored by NYU Law’s Classical Liberal Institute (CLI) and the New York University Journal of Law & Liberty, convened leaders in law and economics on February 27 to discuss legal frameworks for creating and enforcing fair labor standards. The keynote address by John M. True III, a former judge of the Superior Court of Alameda County, California, argued that several trends have combined to give American workers decreased leverage in negotiations and disputes with employers.

John M. True IIITrue’s keynote was bookended by two panels whose participants included Laurence A. Tisch Professor of Law Richard Epstein and NYU Associate Professor of Economics Mario Rizzo, who co-direct CLI, as well as Dwight D. Opperman Professor of Law Samuel Estreicher, director of the Law School’s Center for Labor and Employment Law. The first panel was focused on Janus v. American Federation of State, County, and Municipal Employees, Council 31, a case currently before the US Supreme Court in which the petitioner has asked the justices to rescind the right of public unions to collect fair share fees in lieu of union dues from workers who opt out of union membership. In the second panel, the discussants considered the free movement of labor.

True  launched his legal career as a field attorney for the National Labor Relations Board, subsequently became an advocate for workers in labor and employment cases, then served as a trial judge before working as a mediator and arbitrator. At the beginning of his remarks, he invoked the US Supreme Court’s landmark labor law case Lochner v. New York (1905), in which the justices ruled that a law limiting bakers’ working hours violated the Fourteenth Amendment’s due process clause.

“I am here to share the voices of working people I have represented and those whose cases I have heard in various capacities,” said True. “In doing this, I hope to describe what some of the enormous changes that have taken place in the American workplace actually mean to those going through them…. For some time, it has seemed to me that the non-union private sector work in this country is well on its way back to the Lochner era, the supposed good old days in which the immutable principles of liberty of contract were sufficient to block government regulation and employee rights at the factory door.”

He pointed to two related developments. The first, greater global competition, has compelled US businesses to trim their full-time workforce and resort to contractors and staffing agencies, yielding workers with less clear-cut employment statuses and an impeded ability to make mistreatment claims or to form unions. The second shift is the increasingly frequent phenomenon of compelled arbitration of disputes as a condition of employment, preventing aggrieved employees from pursuing traditional litigation.

“Arbitration clauses in contracts of adhesion push work disputes out of the courtrooms and into the conference rooms of private arbitrators accountable to no one but the parties to the dispute, and to them only loosely,” True said. “These related developments, I argue, make today’s Uber driver the descendant of last century’s baker at Joseph Lochner’s store. In each case, the only way in which the worker wields any power is at the outset of the relationship, deciding to take the job on the terms offered or to look elsewhere, and at its conclusion deciding to quit or to continue working on the employer’s terms.”

These legal issues, True suggested, are as relevant today as they were in the early 20th century. The Supreme Court is even now considering whether an employee has the right to pursue claims in a collective or class action rather than being limited to individual arbitration, and the “gig economy” embodied by companies such as Uber has further muddied the waters.

“The notion of a contractual relationship between an employer and an employee in which the court currently indulges itself is an unhelpful fiction—indeed, a distortion,” True asserted. “At the very least, it does not describe the workplace realities faced by those of whom I speak. Workers sign an agreement or click on a button or open an app because they think they are getting a job, not because they have the idea that they are negotiating the details of dispute resolution terms. Even if they do pause for a moment about what is on offer before they click the button, they know they have no power to do anything but to accept or turn away.”

Watch the video of the keynote adress (36 min):

Posted March 23, 2018