Run Transformative Legal Campaigns

Organizing Sunday

We need an all of the above organizing strategy to transform industries and welcome tens of millions of workers into our movement. This is a resource challenge, a coordination challenge, and an intellectual challenge, to be sure.

But it’s first and foremost a political challenge, and the labor movement must confront the barriers in its way to build and grow. Here are a few ways to potentially inspire the level of organizing we need.

Idea #7: Run Transformative Legal Campaigns

A constitutional right to form a union without retaliation. The end to anti-strike laws in the public sector. A judgment that RICO does not apply to union organizing campaigns. The end of at-will employment. All of these things might be in reach of aggressive, long-term legal campaign.

The labor movement should learn from our sisters and brothers who are currently re-envisioning our relationships with nature and animals. They are running ambitious campaigns merging community organizing, legal organizing, and litigation—and while nothing is assured, it seems likely that these types of campaigns will win systemic changes to our legal system.  The labor movement should be similarly visionary.

There are two social movements going on in this country that many have not heard of, but they seem likely to transform America. The first is the Nonhuman Rights Project (NHRP) and the second is the Community Environmental Legal Defense Fund (CELDF).  NHRP is seeking legal rights for nonhuman animals, while CELDF is seeking legal rights for nature and constitutional commitments to social, environmental, and worker justice.

To frame their demands another way, NHRP is seeking to define and legalize elephant rights, while CELDF wants to define and legalize the rights of Lake Erie.  On first blush, it might seem wildly unrealistic, but both demands have won purchase in other countries, and both organizations have substantially advanced the conversation here in the United States.

Whatever you think about the rights of nature, animals, and communities, these organizations perhaps demonstrate the type of big-thinking campaigning labor should be adopting.

For example, imagine if labor united around ending at-will employment nationwide. We’ve already eliminated at-will employment for most union members, while many governments’ civil service rules do the same in the public sector.

The benefits of replacing at-will employment with a just cause standard for all workers would be incalculable.  First, it would align workers’ expectations of their own job protection with reality.  Second, it would free workers from the fear of hidden discrimination and retaliation, facilitating worker organizing.  And third, it would end a lot of the precarity in workers’ lives. Yet only Montana has ended at-will employment in most of the private sector.

Taking a leaf out of the books of CELDF and NHRP, here is a possible pathway to ending at-will employment.  First, academics in the legal, economic, and policy worlds would research and publish serious, scholarly analyses and critiques of it, while critiquing the common-law and statutory regimes.  At the same time, unions would organize community campaigns to push for ending at-will employment, perhaps by having cities adopt resolutions supporting universal just cause, mobilizing progressive allies in support, and doing what labor does best, organizing.

Then, unions would start filing legal challenges to terminations, arguing that there should exist a constitutional or common-law just cause standard.  Unions would also push friendly state leaders to introduce legislation challenging at-will employment.  And unions would sponsor ballot initiatives challenging them. Whichever strategy worked best for a given jurisdiction would be supported and pushed forward.

And, if unions were successful, in five or ten years, we might have four or five states with just cause employment standards, as well as sizable minority support in the federal government for the position. And in fifteen years, maybe we’ve ended at-will employment in America.

There are numerous other examples of legal campaigns like this one that unions could adopt. Unions should think critically about how to challenge overall employment relationships, in ways that meaningfully build worker power and security in the workplaces.

Of course, there are many shortfalls to litigation as a tool for social change. Mostly, gains in courtrooms reflect the power of our movements, so no court case will truly realign power structures this country. But, by using worker power, labor’s organizing prowess, and legal acumen, we might be able to realign economic relations.

The labor movement should look to other visionary campaigns trying to rewrite the rules of society for inspiration, so that we can do the same. 

If you have thoughts on this subject, I’d love to hear them.  Hit me up on Twitter or email.