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Imagining a Real “Right to Work”

The decades-long movement to drain unions of their strength and resources has brought us to our present crisis. It’s time to redefine our terms.

Scott Olson/Getty Images)

The best way to fix an economy devastated by a pandemic, the president and other conservatives insisted from the start, was simply to send workers back into the fray. And now, a little more than a month after the first statewide stay-at-home order was issued in California—with more than one million reported coronavirus cases in the United States and a death toll of over 60,000—several governors have decided they’ve waited long enough. Last week, Governor Brian Kemp opened restaurants, gyms, and hair salons in Georgia; early this week, states including Tennessee, Texas, and South Carolina followed suit and loosened restrictions on businesses. Yet more states, whose stay-at-home orders expire at the end of April, could start opening by May 1.

The right, for its part, has shrouded this willful disregard for public health in the language of freedom. Earlier this month, seemingly in support of a handful of protests against statewide coronavirus lockdowns, Trump tweeted “LIBERATE MINNESOTA,” followed by “LIBERATE MICHIGAN” and “LIBERATE VIRGINIA.” Fox News’s Laura Ingraham, too, claimed that the shutdown orders constituted a violation of liberty. “Give me your best guidance on protocols, but we cannot deny our people their basic freedoms any longer,” she said last week. On his radio show, Sean Hannity marveled at the passion of the anti-lockdown demonstrators. “It’s amazing how much people want to get to work, they’re dying to get back to work,” he said, the bleak accuracy of his wording probably not intended.

It’s true enough that plenty of the more than 26 million currently unemployed workers may hope to return to their jobs, even if doing so comes at great personal risk. But that, of course, is mostly out of sheer necessity. “Capitalism begins not with the offer of work, but with the imperative to earn a living,” the historian Michael Denning once wrote. Since the vast majority of people have to work to survive—and because the country’s threadbare social safety net, including its onerous unemployment system, offers only the flimsiest cushion for anyone who loses their income—the choice of returning to work in a pandemic is less a triumph of freedom than it is a gamble on one of two bad options. In the states that have begun to scale back shutdown orders, consumers will be free to decide whether getting a haircut or dining out is worth the risk; the employees at those establishments, on the other hand, won’t have much say in the matter.

The grotesque distortion of the notion of freedom when it comes to employment is perhaps most famously captured by the long-standing right-wing concept of “right-to-work,” the neologism for a type of union-busting legislation that allow workers to opt out of union dues and subsequently undermines the strength and financial resources of organized labor. But in this moment of conservatives braying for freedom to return to the workplace, particularly with spiking unemployment and no clear end to the pandemic, there’s also a chance to envision a new kind of right to work that meaningfully expands the freedom of workers—bringing real autonomy, better conditions, and more ease to our working lives—in the economy to come.

Right-to-work laws germinated in the 1940s as the result of a business backlash to the National Labor Relations Act, signed by Franklin D. Roosevelt the decade prior, which enshrined the right of private sector employees to unionize and engage in collective bargaining. Over the next several decades, business groups and right-wing interests pushed right-to-work laws. Today, 27 states in the U.S. are right-to-work states, and the Supreme Court’s 2018 Janus decision further imposed right-to-work on the public sector.

There is no legal magic wand, as labor attorney Julian Gonzalez once put it, that will automatically rescue the labor movement from its current predicament, and workers have always organized and participated in pickets and strikes regardless of the legality of those actions. The period of mass strikes that preceded the passing of the NLRA, for instance, also coincided with some of the most restrictive labor laws in the country’s history. Yet, as workers in low-wage sectors now risk their health and their livelihoods to undertake wildcat actions across the country, we can also sketch a policy blueprint for strengthening worker power. Call it a real right to work.

That might start with the elimination of at-will employment, or the practice that grants employers the right to fire employees for any—or no—reason whenever they wish. As the political philosopher Elizabeth Anderson argued in her book Private Government, the at-will arrangement gives bosses immense power over workers that, in some cases, exceeds even the authority of the state. “Under the employment-at-will baseline,” Anderson wrote, “workers, in effect, cede all of their rights to their employers, except those specifically guaranteed to them by law, for the duration of the employment relationship.” A different kind of right to work, then, would protect workers from termination without just cause—which, incidentally, is already the standard in a number of European countries—and from the surveillance and abuse of employers.

As the pandemic subsides, a federal jobs guarantee could function as another component of a worker-first right to work, particularly with the country sinking further into a recession. The demand for full employment, a plank of left movements throughout parts of the twentieth century, was revived more recently by a handful of former presidential candidates, including Bernie Sanders. Proponents of a jobs guarantee have argued that such a program would shift power to workers by tightening the labor market and reducing the ability of employers to use the threat of firing to discipline employees. And as my colleague Kate Aronoff wrote in March, a green federal jobs program has the potential not only to build the kind of sustainable infrastructure the country needs in the face of accelerating climate change, but could also set new labor standards for private sector jobs through the creation of a wage floor or a shorter workweek.

Finally, a new, pro-labor conception of the right to work would expand and safeguard workers’ right to strike. If a strike is a withholding of work, it’s also ultimately what undergirds the demand for every other workplace right, including safer conditions, better pay, and more respect; the recent spate of strikes by essential workers forced to report to unsafe workplaces or denied protective equipment during the pandemic demonstrates that necessity. In the U.S., expanding the right to strike might include ending no-strike clauses in labor contracts, which bar workers from striking while a collective bargaining agreement is active; legalizing federal workers’ right to strike; and lifting restrictions on solidarity actions or “sympathy strikes,” which would allow unions to strike in support of other shops.

“In a sense, we are living in an indefinite lock-out, facing an administration that sets a higher priority on destroying the Postal Service than it does on organizing a crash program to produce the tests, safety equipment, and antivirals that will allow the U.S. to return to work,” author Mike Davis wrote recently. Particularly as conservatives clamor to reopen states against public health experts’ caution, the right to refuse to work remains critical. We can fight for that while also insisting that the failure of federal and state governments to ensure workplace safety is its own kind of hostility to employment. These are meaningful rights—the freedom that comes with working in safe conditions, for good wages, and with self-determination. If the right’s ghoulish machinations to kick-start the economy represent any kind of freedom at all, it’s the freedom to die or the freedom to starve.