Even before the recent assault on the collective bargaining rights of public sector workers in Wisconsin and across the Midwest, millions of workers in the United States were excluded from the basic human right to organize. Whether it’s due to policy or practice, they cannot organize without facing retaliation, bargain collectively to transform their workplace conditions, or access basic labor protections. In short, millions of workers have been robbed of their dignity.
These “excluded workers” include: more than a million and a half farm workers; nearly two million domestic workers; millions of public and private sector workers in the twenty-two states that have right-to-work laws; nearly three million tipped workers in the food service industries; hundreds of thousands of guest workers and day laborers; hundreds of thousands of taxi drivers; hundreds of thousands of formerly incarcerated people; and hundreds of thousands of workfare workers.
The majority of excluded workers are workers of color, including African-Americans and immigrants from Latin America, Asia, Africa, and the Caribbean. These workers are concentrated in three areas: the low-wage service industries of the “global cities” across the United States (i.e., taxi drivers, restaurant workers, and domestic workers in New York, Los Angeles, and Chicago); urban communities with high rates of unemployment; and in regions and industries with historically weak labor protections (i.e., public sector workers in the Southern right-to-work states and farm workers in rural areas across the country). While the underground nature of their work makes it difficult to determine the proportion of excluded workers in the broader working class, we do know that low-wage service industries are growing at a faster rate than other sectors of the labor market,1 and the labor rights of workers in many other sectors are coming under attack.
Some of these workers are excluded through explicit policies—farm workers and domestic workers are cited as exceptions to the right to organize, while restaurant workers are defined as “tipped workers” who are excluded from minimum wage laws. Taxi drivers are classified as independent contractors. Since they’re explicitly excluded from the legal definition of “employee,” they’re also excluded from labor protections (an exclusion that also impacts workfare workers who are defined by law as “welfare recipients” and not as workers with the right to organize). The laws in the twenty-two right-to-work states (concentrated in the South and the Midwest) explicitly limit the ability of workers—particularly in the public sector—to organize and collectively bargain.
Many other workers are excluded from labor rights and protections by practice— either because existing laws are not enforced or because these workers’ precarious economic and legal status makes it dangerous for them to claim even their guaranteed rights. Workers in other sectors—i.e., those who were once incarcerated—are often excluded from access to work because of discriminatory policies. Whether these exclusions are explicit or implicit, they undercut workers’ ability to organize. This leads to exploitative and degrading working conditions, including poverty-level wages, frequent wage theft, long hours without the benefit of overtime pay, racial discrimination and sexual harassment on the job, and unsafe workplaces, in turn, lowering the floor for all workers.
Contemporary exclusions developed as a result of two converged social dynamics: the legacy of racial exclusions in U.S. labor law (i.e., the exclusion of farm workers and domestic workers from the National Labor Relations Act as a concession to 1930s segregationist Southern senators); and the impact of globalization, which has rendered much of current labor law structurally ineffectual in addressing the changed dynamics of workplaces worldwide. Fundamental political and economic power shifts have transformed working conditions in the United States and around the world. These shifts—the decline of the U.S. manufacturing economy, the development of a U.S. service economy, and the rise of international migration—have created new and challenging conditions for workers.
While the traditional labor movement has long reflected on the severe limitations of collective bargaining rights—as expressed in the National Labor Relations Act—the recent assaults on collective bargaining rights for public sector workers demonstrate that the broader trajectory of labor law is toward the exclusion of workers from even these inadequate protections. Workers need a new framework for the right to organize.
The Rise of a New Workers’ Movement
Over the past two decades, nearly two hundred independent worker centers have emerged in these historically excluded sectors. At first, these organizations were primarily seen as hopeful upstarts, but many have now grown and matured into well-respected organizations with sizable membership bases and significant victories under their belts. Some of these worker centers have affiliated into national sector-based networks (i.e., the National Domestic Workers Alliance and the National Day Laborer Organizing Network). Others have expanded into national membership organizations (i.e., Restaurant Opportunities Centers United).
Independent worker organizations have waged a number of inspiring campaigns over the past twenty years, and each provides an inspiring story of triumph against all odds. These hard-won victories suggest that we’re inching closer to the emergence of a new, twenty-first-century framework for labor rights and worker power. For example:
• The successful passage of New York State’s Domestic Workers Bill of Rights has inspired the introduction of similar legislation in California and the beginnings of similar campaigns in other states. This Bill of Rights not only challenges the decades-long exclusion of domestic workers from basic labor protections—through its provision of paid sick days, the Bill of Rights goes beyond governmental mediation of “collective bargaining” between workers and employers to suggest a model of state-mandated “collective standards” for all workers.
• The New Orleans Workers’ Center for Racial Justice and the National Guestworkers’ Alliance waged a dramatic confrontation with immigration authorities, and they were able to win full legalization for guest workers who had been trafficked from India by the Signal corporation. This victory demonstrates that contemporary worker struggles should move beyond narrow workplace battles and civil rights frameworks to incorporate a broader human rights framework that can address the full range of international dynamics impacting workers’ lives.
• The HOPE Coalition tenaciously confronted a North Carolina law that bars public employees from collective bargaining. Although it has not been able to defeat these policies yet, this fight demonstrates that the labor movement’s long-term battle to end right-to-work policies in the South is far from over. The multiracial composition of this latest struggle also confirms that the vibrancy that’s now mostly attributed to immigrant worker struggles is alive and well among African-American and white workers.
These positive developments demonstrate excluded workers’ potential to help rejuvenate and transform the broader labor movement. But they also suggest that a new, transformative labor rights framework must not only bring an end to explicit exclusions that intentionally restrict worker rights—labor laws must be reshaped to reflect twenty-first-century workplace structures and workforce composition.
The Formation of the Excluded Workers Congress
During the June 2010 U.S. Social Forum in Detroit, the National Domestic Workers Alliance, Jobs with Justice, and the National Day Laborer Organizing Network brought together nine sectors of excluded workers—domestic workers, farm workers, taxi drivers, restaurant workers, day laborers, guest workers, workers from Southern right-to-work states, workfare workers, and formerly incarcerated workers—to found the Excluded Workers Congress. It was formed to bring “the human right to organize” to life, to win a new era of rights and policies for workers, and to transform the U.S. labor movement.
The current frameworks for labor law— collective bargaining and worker organizing—were developed in the 1920s and 1930s. In response to a changing economy and changing working conditions, excluded workers are now leading transformative campaigns and building the foundation for a new workers’ movement. By coming together to build the Excluded Workers Congress, these organizations hope to form a shared basis of power that will allow them to work with established unions to strengthen the labor movement, reform federal labor law, and enable all workers to exercise their human right to organize.
During the first gathering of the Excluded Workers Congress, more than four hundred workers engaged in hours of storytelling to educate each other about conditions within their respective sectors and their innovative campaigns to expand labor protections and build worker power. Building on the foundation of unity established in Detroit, representatives from each of the nine sectors came together in Washington, D.C. in October 2010 to develop a shared analysis, a vision, and some collective strategies. During this meeting, the members of the Excluded Workers Congress formalized their federation, made a commitment to engage in shared campaign work, and defined the group’s mission—to bring about a modern-day expansion of all workers’ right to organize (with a recognition that contemporary worker struggles must be international in character).
In addition to developing an interim structure and planning for collaborative campaign work, the Excluded Workers Congress took advantage of its time in the capital to network with the Department of Labor (DOL), members of Congress, and national labor leaders. Member organizations convened congressional hearings and held an extended meeting with the DOL to alert officials about working conditions in their industries, share strategies for improving those conditions, and discuss the possibility of establishing an Excluded Workers Task Force within the DOL.
The Excluded Workers Congress also engaged in strategic dialogue with high-ranking representatives from the SEIU and the AFL-CIO, as it began to establish itself as a meaningful force in national labor politics. The Excluded Workers Congress met again in May 2011 in New York City, this time bringing excluded workers together with U.S. labor leaders and worker organizers from Asia, Europe, Africa, and Latin America. The 2011 conference opened with the AFL-CIO signing two historic partnership agreements—one with the National Domestic Workers Alliance and the other with the National Guestworkers’ Alliance. AFL-CIO President Richard Trumka heralded the agreements.
At the D.C. gathering, the Excluded Workers Congress identified several broad areas for shared work.
Collaborative Campaign Work
Spearheaded by Restaurant Opportunities Centers United, state and federal campaigns will seek to raise and index the minimum wage. These campaigns will include workers who are currently excluded from minimum wage protections, including tipped workers, home health care workers, and agricultural workers.
The POWER Act campaign—initiated by the National Guestworkers’ Alliance—will lobby for federal legislation that would grant legal status to victims of serious labor violations or those who pursue workplace-based claims. The POWER Act would shield undocumented workers from the threat of retaliation.
Strengthening and Expanding the Labor Movement
Several of the Excluded Workers Congress’s principal alliances—including the National Day Laborer Organizing Network, the National Guestworkers’ Alliance, and the National Domestic Workers Alliance—have now developed formal partnerships with the AFL-CIO, demonstrating a shared commitment to rebuilding the labor movement. While the specifics of these partnership agreements are still being worked out, the partnerships provide a foundation for the development of concrete solidarity work that will allow the labor movement and the independent workers’ movement to bring their different strengths to the table. The AFL-CIO has already successfully supported National Domestic Workers Alliance efforts to develop basic international labor standards for the domestic work industry in the ILO Convention.
Developing Twenty-First-Century Frameworks for the Right to Organize
In March 2011, the Excluded Workers Congress convened a series of scholar-organizer roundtables at an International Excluded Workers Congress to help flesh out what a twenty-first-century model of worker rights should look like. The roundtables underscored the insufficiency of developing a new “right to organize” framework—the Excluded Workers Congress must simultaneously reconceptualize a new approach to worker power that reflects current political-economic conditions.2 Relationships with labor movements from around the world—including organizers working to establish a floor wage for garment workers throughout Asia, activists from South Africa working to build an international network of informal workers, and labor leaders from Latin America working to form international connections between workers along the food chain—will enable the Excluded Workers Congress to learn about innovative organizing models and hone its vision. More importantly, these relationships help lay the groundwork for the long-term emergence of an international worker movement with the power to respond to the transnational dynamics of the global economy.
Turning Hope Into Reality
In an era where a worker’s right to collectively organize and exercise power in the workplace is increasingly coming under attack, the future of a workers’ movement rests on an alliance between the traditional labor movement and the organizations representing sectors that have historically been excluded from labor rights and protections. The Excluded Workers Congress is determined to turn that hope into a reality.
1. A Year of Unbalanced Growth: Industries, Wages, and the First 12 Months of Job Growth after the Great Recession (New York: National Employment Law Project, February 2011), available at www. nelp.org/page/-/Justice/2011/UnbalancedGrowthFeb2011.pdf?
2. “Excluded Workers: What is Victory?” Organizing Upgrade, May 2011, available at www.organizingupgrade.com/2011/05/ excluded-workers-what-is-victory.
*The authors would like to thank the Steering Committee of the Excluded Workers Congress (www.excludedworkers.org) for its contributions to this article.