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Labor Law and Employer Domination: From Steel to Care


Brishen Rogers (@BrishenRogers) is Professor of Law at Georgetown University Law Center.

This post, part of a symposium on Gabriel Winant’s The Next Shift, draws from the author’s forthcoming review in the Yale Law Journal.


In one of the more well-known and arresting vignettes in Capital Volume 1, Marx invites his reader to “take leave for a time of this noisy sphere” of the market he has been describing—where commodities are exchanged and labor contracts entered—and to follow employer and employee “into the hidden abode of production, on whose threshold there stares us in the face ‘No admittance except on business.’” Gabriel Winant’s magnificent book suggests that two cohorts of workers—postwar steelworkers and contemporary healthcare workers—experienced that “hidden abode” in quite similar ways, despite inhabiting different worlds. Steelworkers were an industrial proletariat during the so-called “trente glorieuses” of the more postwar order; they were relatively privileged due to their strategic position in the economy, their races and genders, and their unionization status. Health care workers are in services rather than manufacturing, live under neoliberalism, are disproportionately female, non-white, and non-native born, and are almost never unionized. But in both periods, companies put relentless downward pressure on staffing levels, eroding workers’ safety and material security.

In a longer review of Winant’s book, I draw out some of the book’s implications for scholars of law and political economy, especially labor law scholars. In this post, I want to focus on one thread of that discussion: how in both eras, our labor and employment laws presumed that workers had contracted into employer domination. That presumption facilitated the degradation of work—first in steel, and then in care.

Our postwar labor law was deeply inflected by the ideology of “industrial pluralism,” which sought to resolve the tension between workers’ democratic aspirations, as protected by the National Labor Relations Act, and companies’ perpetual efforts to establish unilateral control over production. The canonical cases were the Steelworkers Trilogy of 1960, where the Supreme Court described the collective bargaining process as “an effort to erect a system of industrial self-government” and elevated grievance arbitration as the preferred means of resolving production disputes. Under Steelworkers and other cases, workers had no rights to strike during the course of collective bargaining agreements—the withdrawal of the strike weapon being understood as the quid-pro-quo for employer’s agreement to arbitrate. On the ground, this labor law regime mitigated but by no means eliminated class antagonisms. Unions then built private islands of economic security via collective bargaining agreements with steadily increasing wages and generous health-care and retirement funds.

But as Winant shows, in the steel industry those agreements were borderline unstable. Because steel mills were already nearing technological obsolescence by the end of the war, and companies were reluctant to embrace new technologies, collective bargaining drove up labor costs faster than productivity. Steel companies responded by cutting staff and pressing workers to produce faster, claiming they enjoyed rights to do so under the collective-bargaining agreement. This made steelwork almost unfathomably dangerous, with workers confronting what Winant termed a “constant, inescapable risk of injury and death.” Workers in Dusquesne at one point vomited blood from inhaling dust near a blast furnace. Another worker, Winant writes, “watched an explosion split three workmates lengthwise; the image in his memory is of a cross-sectioned human body, burnt on the outside and red on the inside.” Those Black workers lucky enough to be employed in steel were shunted into the hottest and most dangerous jobs, paid the least, and laid off first. Workers often responded to staffing cuts with unauthorized or “wildcat” strikes, but since arbitration was the only legitimate response to disputes during the course of a contract, employers could lawfully discipline or even terminate workers for doing so.

Steelworkers therefore confronted a paradox created (but often denied) by postwar labor law: once workers agreed to a collectively-bargained “constitution,” they entered the hidden abode of production—the threshold of which, under Steelworkers, the courts would usually not cross—and encountered immense danger as an “elemental force” prior to reason. Yet workers had to advance their own interests through the reason-giving of grievance arbitration, rather than by withholding their labor. Postwar labor law therefore did not reflect reason opposed to violence, or reason disciplining violence. The law and the violence of production were inseparable.

Today, similar staffing conflicts play out in hospitals, nursing homes, and other health care facilities, despite secular economic shifts and a different governing legal regime. Where in the postwar period employment was understood as a social relationship jointly constituted by workers and companies, today it is understood much like other individual contracts. This is apparent in several doctrinal shifts. The decline of unions has meant that few line-level workers have contractual protections against termination without cause. They are instead at-will employees, subject to termination without notice and for any reason, and therefore with limited ability to protest unfair conditions or mistreatment. Meanwhile, arbitration has migrated from the collective bargaining context, where unions were repeat players with real resources and legal expertise, to the individual employment context. Courts often enforce mandatory arbitration agreements on the theory that workers freely signed them, disregarding the fact that they could be terminated for refusing. And skillfully drafted independent contractor agreements can all-but-eliminate companies’ legal responsibilities to line-level workers.

This legal reshaping of employment facilitated the growth of the modern service economy, and responded to some of its structural dynamics. Like many other services, care work is difficult to keep profitable, since the good being provided isinseparable from a person’s manual or affective labor—feeding, bathing, changing bedsheets, asking what hurts—which is hard to render more productive through technological innovation. As a result, service sector companies often face acute profitability pressures. As health care grew as a share of employment and the economy—seeded, as Winant shows, by steelworkers’ health and welfare funds—companies responded in a few ways. They “fissured” away many line-level workers, ensuring that low-productivity functions like nursing home care or home care occurred in firms legally separate from highly profitable functions like imaging, cancer treatment, and transplants. To staff the latter set of jobs, businesses recruited workers who were susceptible to hyper-exploitation due to their race and/or gender. When those workers sought to organize, hospitals responded by pointing to their charitable or community-focused mission, casting themselves as an extension of the family and implying that such workers had duties to render loyal service for meager wages. Companies even fought to deny some workers the most basic protections, as evidenced by home-care workers’ long struggles to establish rights to overtime pay.

Through such exploitative strategies, care industries remained at least marginally profitable. But workers paid the price. As Winant shows, wages have barely risen for non-professionals in health care since the 1980s, and many such workers report very high levels of job-related stress. As one health care worker in the mid-2010s told a local commission, “there are days when I have to choose between buying food and paying for my medications” for diabetes, high blood pressure, and a thyroid disorder. Other workers Winant interviewed suffered injuries from short-staffing, including one who experienced bladder damage in her twenties from not being able to use the restroom for hours at a time. Beyond such detrimental effects on employees, short staffing has also helped generate horrific patient abuses.

In both eras, then, courts held that nominally consensual processes of workplace governance—first collective bargaining, and then individual contracting—allocated to companies various powers they could use to impose market discipline on workers. Critical legal scholars of various stripes have long studied such processes, and have argued that the law’s treatment of contracting parties as equals helps to generate and legitimate all manner of economic, racial, and gender inequalities. The law therefore treats private forms of domination as immune from state regulation or oversight, as a fact of life rather than a policy choice.

Can today’s crises of care be resolved? As Winant’s book suggests, today’s neoliberal political-economy contains new conditions of possibility. Among other things, the care and social reproduction sectors that have grown so dramatically in recent decades are essential for social flourishing, which gives care workers and educators some latent power. They have begun to exert it, striking and protesting in larger numbers. In such efforts, workers may find the public to be far more supportive than in the recent past, since consumers have suffered from the declining quality of care in recent decades. But private collective bargaining is not enough as long as productivity growth remains slow. In the long term, we may need to mitigate or eliminate the profit motive in care sectors by making them into a public resource. In fact, today’s resurgent social movements are envisioning quite different political economies of production, care, and ecology, including by fundamentally altering practices of investment, industrial policy, and job creation, as well as broader reforms to voting rights and democratic processes. The work of care and social reproduction could then be central to a more democratic political economy, rather than a source of shame, humiliation, or danger.