The Vanishing Employee: Putting the Autonomous Dignified Union Worker Back to Work

Abstract

This paper was presented at a symposium, hosted by the Florida International University Law Review during March 2011 to celebrate the 75th anniversary of the enactment of the National Labor Relations Act. Dean R. Alexander Acosta, himself a former Board member, tasked the panelists not only with predicting the Board’s future but also with commenting on the extent to which the Board’s fate is simply to wither away. I chose to demonstrate that the Board and the NLRA are not simply withering away but have been repressed by all three branches of government. I chose to demonstrate that proposition through an historical account of the changing definition of the statutory term, “employee.” That account reveals what I call, the vanishing employee.The NLRA’s definition of employee is significant because it is the gateway to all worker protection under Section 7, which includes the fundamental rights to self-organize, bargain collectively, and band together for mutual aid or protection. Although the Supreme Court has characterized that statutory definition as “striking[ly]” broad, all three branches of government have worked together to narrow that definition and, in doing so, narrow the gate through which meaningful opportunity for free association resides.This paper examines that statutory definition with reference to (1) the plain language, (2) the legislative history, (3) congressional amendment, (4) Supreme Court interpretation, and (5) administrative interpretation. I begin with a deconstruction of the statutory term employee and show that there is an affirmative definition and a negative definition. Building on the work of labor law theorists such as Marion Crain, Ellen Dannin, Matthew Finkin, Harry Hutchinson, Risa Lieberwitz, Ken Matheny, Marley Weiss, among others, I show that, although the plain language of the affirmative part of the definition does in fact broadly include “any employee” and expressly “shall not be limited to the employees of a particular employer,” that definition has been narrowed by all three branches of government. First, Congress added two important exemptions to the definition – independent contractors and supervisors. Second, the Bush II Board, based in part on recent Supreme Court precedent, has interpreted those exemptions, especially the supervisory exemption, in a way that punches a gaping hole in an otherwise broad definition. Third, notwithstanding court precedent, the Bush II Board more recently attacked the affirmative definition of employee by removing wholesale classes of employees from the statutory definition, merely because, in its view, those workers did not have “the economic relationship contemplated and protected by the Act.”I end by arguing in favor of congressional amendment, in particular, by eliminating the supervisory and independent contractor exemptions. In my view, eliminating these exemptions is the best way to maximize worker autonomy and dignity. Recognizing that congressional amendment is unlikely, I describe several other more modest changes that could protect more workers. For example, administrative and court interpretation of the NLRA in light of its purpose – to promote “the practice and procedure of collective bargaining” – would go a long way toward eradicating some of these problems. I also touch upon the experience of Canada to briefly consider whether distinguishing between independent and dependent contractors might broaden the definition of employee by narrowing those who are currently exempted as independent contractors. I conclude by arguing that the best chance for revitalizing workplace participation will be to ensure organization rights to those who meet the statutory definition through the internet and other social networking activities.