Leveraging the Laboratories of Democracy to Empower Workers
Caption: No Kings Day Protest on the U.S. Capitol grounds on February 17, 2025, organized by the 50501 Movement.
Credit: Geoff Livingston, Washington, DC, Creative Commons
Our nation’s labor laws are broken. A record number of Americans approve of unions, but there’s a tremendous gap1 between workers who are interested in joining unions and workers who are members of unions (only 5.9 percent in the private sector).2 Clearly, the law is failing in its ability to transform desire to be in a union into the reality of union representation. There are many reasons why our Great Depression-era labor law fails workers. Employers are allowed to fight dirty during organizing campaigns, putting out threats and firing pro-union workers, with at most just a slap on the wrist at the end of a years-long adjudication of their misdeeds.3 Workers are also forced to organize individual workplace by workplace, precluded from strategically targeting a whole sector at once. The labor movement’s current labor law reform bill, the Protecting the Right to Organize (PRO) Act, could make a significant difference in terms of closing that gap. But this proposal was first introduced in 2019, and despite passing the House in 2021,4 it has been stuck in the Senate alongside other transformational reforms.
Clearly, the law is failing in its ability to transform desire to be in a union into the reality of union representation.
Worse, the existing National Labor Relations Act (NLRA) is under attack, facing existential threats from several legal challenges percolating through the courts.5 It is conceivable that the Supreme Court will undermine some or all the nation’s bedrock labor law in coming years. That’s already the case in the Fifth Circuit Court, which has blocked the National Labor Relations Board (NLRB) from bringing some cases because of the way that the agency is structured.
That’s why labor unions and advocates are increasingly turning to the states to empower workers. Three states, California, New York, and Washington, passed trigger laws that create comprehensive, state-level labor law regimes to replace the federal labor law when it’s not working.6 And all of those laws incorporate important improvements to the NLRA, including drawing from the PRO Act.
But something is happening quietly in states around the country. Legislators and worker advocates are exploring other ways that states can empower workers using new and creative alternatives, whether the NLRA is overturned or not. They recognized the same opportunity as former Supreme Court Justice Louis Brandeis, who called the states “laboratories of democracy,” which can “try novel social and economic experiments without risk to the rest of the country.”7 After all, traditional collective bargaining under the NLRA has not unlocked massive union density or closed the union-demand gap. States have the chance to go further and test more strategies to empower workers.
There are strategies that worker advocates and lawmakers in pro-worker and even anti-worker states can employ to step into gaps left by federal labor law. In pro-worker states, lawmakers can make significant progress on sectoral bargaining efforts, procurement reforms, union partnerships for benefits programs, pathways for funding labor organizations, and democracy reforms that support worker organizing. To be clear, pro-worker states could pursue some of these reforms today. Others would be preempted under current law but could be paired with future trigger laws to take effect only if the NLRA is overturned. And to prepare for the latter scenario, worker advocates in anti-worker states could use creative strategies like ballot measures and even pro-worker state policy to shield workers from some of the nearly century-long protections that they would lose. All these reforms are worthy of consideration given the moment that we are in, with workers demanding more say in their workplaces and policymakers searching for ways to make a material difference in people’s lives.
Trigger Laws and Preemption
Since its passage in 1935, the NLRA has been the main federal labor law governing private-sector labor relations across the nation. The law gives most private-sector workers the right to form, join, or assist labor organizations; the right to bargain collectively through representatives of their choosing; and, even without a union, the right to engage in concerted action, that is, to act together or for each other to improve wages and working conditions. Some workers are left out of the NLRA’s protections, including public employees, supervisors, agricultural workers, domestic workers, independent contractors, and a few others.8
It’s conceivable that the Supreme Court will undermine some or all the nation’s bedrock labor law in coming years.
The NLRA has been the main law governing private-sector relations in large part because decades of court decisions have created multiple doctrines of federal preemption that block states from passing laws in this space.9 Under the case San Diego Building Trades Council v. Garmon, states may not regulate activity that the NLRA protects or prohibits—or activity that the law even arguably protects or prohibits.10 In Machinists v. Wisconsin Employment Relations Commission, the Supreme Court broadened preemption even further holding that the NLRA also preempts areas intended to be left to the “free play of economic forces” and thereby not to be regulated by any laws.11 As law professor Benjamin Sachs described, “it would be difficult to find a regime of federal preemption broader than the one grounded in the NLRA.”12
Legislators and worker advocates are exploring other ways that states can empower workers using new and creative alternatives, whether the NLRA is overturned or not.
Nonetheless, states and cities have been pushing the boundaries of what is possible under current preemption standards.13 For instance, there are several strategies for improving the environment for building worker power without directly impacting labor relations and thereby triggering preemption.
But there is another challenge—and opportunity—on the horizon. In a series of cases that may have once seemed frivolous, the NLRA is under attack, for, among other things, theories that build on recent Supreme Court decisions that have narrowed the authority of federal agencies.14 These cases could truly reshape the landscape of labor law protecting workers and communities around the country.
While the downfall of the NLRA would be a blow to workers nationwide, it would also create an opportunity to give states significantly more authority to pass laws that empower workers. Indeed, as described above, California and New York have already enacted laws that could replace the comprehensive labor law protections of the NLRA. Both the California and New York laws are not traditional “trigger laws” in that they both take effect under some circumstances even if the NLRA is not overturned, but if it is simply inoperative for a time, for example, when the NLRB lacks a quorum. That structure contributed to New York’s law having already been enjoined.15 The California law has likewise been challenged and recently enjoined in large part.16
While the downfall of the NLRA would be a blow to workers nationwide, it would also create an opportunity to give states significantly more authority to pass laws that empower workers.
But if the NLRA is overturned, pro-worker states can go so much farther to empower workers as they seek to join unions and exercise their rights. States enacting trigger laws should consider adding the following protections, alongside more comprehensive reforms:
Sectoral Bargaining
The single most important step that states can take would be to create more sectoral labor-standard-setting systems to reach and potentially empower more workers. Sectoral strategies—systems in which wages and working conditions are set across an entire industry rather than at the individual business level—have long been recognized as a powerful tool for raising labor standards.17 Sectoral collective bargaining is the norm for labor relations in much of the world.18 In countries where sectoral bargaining is prevalent, income inequality is lower.19
While these models have typically focused on improving pay and baseline employment conditions, they also hold significant potential to empower workers, promote democratic participation, and strengthen organizing. Although sectoral bargaining cannot currently be implemented at the state level because of NLRA preemption, states and localities can adopt sectoral standard setting through worker standards boards—tripartite administrative structures whose recommendations are subject to governmental approval.
Sectoral systems are in place today. For example, in California, workers and their representatives participate alongside representatives of companies in the Fast Food Council to set the minimum wage and other working conditions in the fast-food industry.20 In Minnesota, unions and companies work together as part of the Nursing Home Workforce Standards Board to set the conditions in the nursing home sector.21 Terms of employment in the home care sector in Nevada are now set via a similar kind of board.22 Unions and other kinds of worker organizations are important contributors to these models because they provide a conduit for workers’ voices in the standards-setting process, validating these sectoral mechanisms and producing standards that are more likely to reflect what workers really want.
Other industries are ripe for sectoral bargaining if preemption falls. For example, the auto industry would be a sector where the benefits of this kind of bargaining would be profound. Since foreign car companies moved in the U.S. South in the 1980s, the unionized Big Three American car companies have had to compete against these non-union manufacturers who pay a lot less to their non-union workers. The result has been the degradation of wages and standards across the whole sector. In a sectoral bargaining system, all the auto companies, both United States and foreign, would bargain together with the United Auto Workers (or any other union that workers designate). As a result, the companies would have to compete based on the quality of their cars, not their ability to reduce wages.
Procurement
States and local governments are major purchasers of goods and services that collectively spend many trillions of dollars annually for everything from roads and housing to healthcare and education.23 Many worker advocates believe that these funds—whether coming from the federal government or the state, should go toward good union jobs. And when possible, at a minimum, taxpayer dollars should not be used to subsidize employers that are not playing by the rules.
Even today, states can enact procurement reforms that promote their own interests while indirectly creating a pro-worker climate as well. The Supreme Court has recognized that states have the authority to act in their proprietary capacity, as market participants, to enact laws to ensure that they have high-quality, cost-efficient goods and services.24 More than two dozen states have enacted prevailing wage laws that establish wages and benefits for similarly employed workers on government contracts, ensuring that government procurement doesn’t undermine local wages and benefits or launch a race to the bottom among bidders.25 More recently, states are conditioning awards for construction projects on establishing Project Labor Agreements or even Community Benefits Agreements, both of which involve negotiations before work begins on a new project to ensure that construction is completed in a timely and cost-effective manner.26 Under either of these tools, unions or community groups can enter into pre-hire agreements that address wages, benefits, and other aspects, such as local hiring commitments. All of these are valuable wins in promoting good jobs.
The single most important step that states can take would be to create more sectoral labor-standard-setting systems to reach and potentially empower more workers.
But without preemption, pro-labor states would be able to supercharge their procurement dollars to directly support union organizing. For example, pro-labor states and cities could enact procurement laws giving bidders with collective bargaining agreements a priority on public projects. Beyond that, states or cities could require all bidders on public contracts (over a de minimis threshold) to agree to a position of union neutrality and refrain from undertaking anti-union “captive audience” meetings.27 In this way, pro-labor states could use their significant market power to shape worker power around the nation.
Union Benefits Administration
State and local governments administer important benefits programs for workers, including unemployment insurance and job training. But too often, not all workers understand and benefit from these programs, with workers from underserved communities most likely to fall through the cracks. Administrators of the programs may lack the resources or deep connections within communities to ensure widespread education and access for all workers.
To address these concerns, state and local governments can partner with unions to help administer programs. As worker-led organizations, unions are more likely to have the trust and relationships with workers that would enable them to engage in more effective outreach. Today, government agencies can enter into contracts with labor unions and other worker groups to serve as “navigators” to help drive workers to the program, as was piloted in the Biden administration.28 In European countries, labor unions often have a more formalized role in delivering government-subsidized benefits.29 These relationships can have positive impacts on workers and unions alike, ensuring the former can receive benefits and also providing incentives to affiliate with unions and keeping workers connected to unions during spells of unemployment.30 Unions can already retain a portion of the contracts for benefits administration that is generally separate from union organizing. With the absence of preemption, these contracts could be structured to support union organizing as well.
Funding Labor Organizations
State governments take several actions to facilitate the connection between workers and charitable or political organizations in order to make donations easier. Some states have passed laws that allow workers to set up automatic payroll deductions for political action committee spending.31 Other states have tax check-off programs that allow taxpayers to elect to divert a portion of their tax refunds (or payments) to specific, enumerated causes. For example, Maryland allows voluntary contributions to several state-run funds to support the Chesapeake Bay and endangered species, developmental disabilities services and support, cancer research, or campaign financing for gubernatorial campaigns.32 New York law provides 34 such options, reportedly the most in the nation, including for campaign finance, breast cancer research and education, and food banks.33
Worker advocates should act now to find ways to prevent the worst abuses.
Pro-worker states could take steps to include unions and worker advocates in this sort of program.34 For example, they could authorize and require private-sector and public-sector employers alike to process voluntary deductions of union dues or other contributions from workers’ paychecks on a regular basis. These contributions could go to pooled benefit funds (administered by unions) or could go directly to unions to support organizing efforts. States could further encourage these contributions to unions by exempting them from state income taxes as well (i.e., using “pre-tax” dollars for state law purposes), as Maryland did for union dues in 2023.35 States could likewise facilitate tax return donations to unions or union-allied organizations and make those contributions deductible from state taxes as well. This strategy can be an important vehicle to undo or head off efforts to prohibit union dues deductions for certain public-sector employees, as in states like Wisconsin and West Virginia.36
Democracy Reforms
The right to collectively bargain is closely linked to a strong democracy.37 In the same way, a strong democracy is important for empowering workers. Research shows, for example, that high union density areas tend to have fewer voting restrictions.38
So, a key tool for improving workers’ rights is to take action to improve democracy itself. For example, states can take action to make it easier for working people to vote. Twenty-one states and Washington, D.C. require employers to provide paid time off for voting.39 States can also make allowances for early voting, voting by mail, and even automatic voter registration to maximize the opportunity to vote.
But states can go farther than just voting. Some states protect workers from being fired for their off-duty political activity, and others protect workers from being fired or disciplined for refusing to attend “captive audience” meetings where employer representatives require workers to attend meetings where the employers present their views on politics, religion, or even the right to unionize.40 These and more “democracy” reforms can also have the effect of empowering workers.
Playing Defense
Unfortunately, if preemption falls, some states will undoubtedly take steps to limit even the basic standards that the NLRA provides today.41 While the NLRA is an imperfect law, it nonetheless prevents anti-worker states from taking extreme actions to prohibit or even criminalize worker activism.42
Worker advocates should act now to find ways to prevent the worst abuses. For example, 23 states provide citizen-initiated ballot measures to amend the state constitution and/or state statutes, including a number of states like Arkansas and Oklahoma where the legislatures tend to disfavor worker protections.43 Some states limit lawmakers from repealing and sometimes even from amending citizen-initiated ballot initiatives without additional hurdles like a supermajority legislative vote or even a multi-year waiting period.44 At minimum, a successful citizen-initiated ballot initiative may give lawmakers some pause before pursuing competing legislation, especially if it gets significant support.45In these states, advocates can act now to pass laws or, in some cases, constitutional amendments that enshrine workers’ rights to collectively bargain. For instance, after a successful ballot measure, the Illinois Constitution now prohibits “right-to-work” laws at the state or local levels. It also proactively enshrines several rights that neither the legislature nor local ordinances could overturn, including the right to organize, collectively bargain, choose representatives, negotiate working conditions, and more.46But pro-worker states have a role as well. They have significant buying power and control access to their lucrative consumer markets that can be leveraged to impact policy around the country.47 For example, Washington State could give companies with pro-worker policies a break on the business and occupation tax, which applies to businesses inside Washington and to any business that has a physical presence nexus to the state, for example, by soliciting sales to the state.48 That would mean that a company from Alabama that currently pays its workers only $7.25 per hour would get a break on its Washington state business and occupation tax if it paid all of its workers a higher wage. Pro-worker states can take advantage of these opportunities to protect workers in anti-worker states from some of the worst abuses.49
Preparing for the Scenarios Ahead
States and cities have tremendous potential to pass laws that protect workers, and that potential is, counterintuitively, magnified if the NLRA is struck down. One question would be whether states would step in where Congress has failed to act—to create a labor law that would empower twenty-first century workers. Another serious question is whether some states, if unleashed from preemption, would use that freedom to even further degrade workers’ collective rights. Advocates, unions, and, most importantly, workers themselves, would have to be ready to take action to ensure that the balance tips in favor of more worker power, not less. Whether the United States has a chance at building an economy that supports the middle class may depend on the answers to these questions.
1. Thomas A. Kochan, William T. Kimball, Duanyi Yang, and Erin L. Kelly, “Worker Voice in America: Is There a Gap between What Workers Expect and What They Experience?” Industrial and Labor Relations Review 72, no. 1 (January 2019): 3-38, doi:10.1177/0019793918806250; Eric Rosenbaum, “The Amazon, Starbucks, Apple Union Push Is Capturing What a Majority of All American Workers Now Say They Want.” CNBC, June 2, 2022, available at https://www.cnbc.com/2022/06/02/majority-of-american-workers-want-more-unionization-at-their-own-jobs.html.
2. U.S. Bureau of Labor Statistics, “Union Members Summary,” News Release, January 2023, available at https://www.bls.gov/news.release/union2.nr0.htm.
3. Celine McNicholas, Margaret Poydock, Julia Wolfe, Ben Zipperer, Gordon Lafer, and Lola Loustaunau, “Unlawful: U.S. Employers Are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns,” Economic Policy Institute, December 11, 2019, available at https://www.epi.org/publication/unlawful-employer-opposition-to-union-election-campaigns/.
4. Laura Grisales, “House Democrats Pass Bill that Would Protect Worker Organizing Efforts,” NPR, March 9, 2021, available at https://www.npr.org/2021/03/09/975259434/house-democrats-pass-bill-that-would-protect-worker-organizing-effort.
5. Sharon Block, Seema Nanda, and Rajesh Nayak, “The NLRA Under Attack.” Democracy: A Journal of Ideas, no. 77 (Summer 2025), available at https://democracyjournal.org/magazine/77/the-nlra-under-attack/.
6. Gavin Newsom, “As the Federal Government Turns Its Back on Workers, Governor Newsom Signs Landmark Bill Expanding Workers’ Rights,” Office of the Governor of California, September 30, 2025, available at https://www.gov.ca.gov/2025/09/30/as-the-federal-government-turns-its-back-on-workers-governor-newsom-signs-land mark-bill-expanding-workers-rights/; Kathy Hochul, “Governor Hochul Signs Legislation to Strengthen and Expand Worker and Labor Protections,” Office of the Governor of New York, September 6, 2025, available at https://www.governor.ny.gov/news/governor-hochul-signs-legislation-strengthen-and-expand-worker-and-labor-protections; Marina Multhaup, “Washington Extends Labor Law to Private Sector Workers (if NLRA Preemption Ends).” OnLabor (blog), March 30, 2026, available at https://onlabor.org/washington-extends-labor-law-to-private-sector-workers-if-nlra-preemption-ends/.
7. Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018), available at https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf.
8. For a discussion of these workers, see “Building Worker Power in Cities & States: Workers Excluded from the NLRA,” Harvard Law School Center for Labor and a Just Economy, available at https://clje.law.harvard.edu/publication/building-worker-power-in-cities-states/workers-excluded-from-the-nlra/.
9. See Benjamin Sachs, and John Fry. “Is Labor Preemption Good for Labor?” Minnesota Law Review 110 (2026): 1587-1646.
10. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, (1959).
11. Machinists v. Wisconsin Employment Relations Commission, 427 US 132 (1976).
12. Benjamin Sachs, “Despite Preemption: Making Labor Law in Cities and States,” Harvard Law Review 124, no. 5 (March 2011): 1153-226.
13. For a full assessment of how states and cities have been enacting new laws to expand worker power, see “Building Worker Power in Cities & States,” Harvard Law School Center for Labor and a Just Economy, available at https://clje.law.harvard.edu/publication/building-worker-power-in-cities-states/.
14. Block, Nanda, and Nayak, “The NLRA Under Attack.”
15. National Law Review, “Halted: Federal Judge Stops Enforcement of New York’s NLRB Trigger Bill,” available at https://natlawreview.com/article/halted-federal-judge-stops-enforcement-new-yorks-nlrb-trigger-bill.
16. Daniel Wiessner, “US Labor Board Sues California Over Law on Labor Disputes,” Reuters, October 16, 2025, available at https://www.reuters.com/legal/government/nlrb-challenges-california-law-shifting-labor-cases-state-agency-2025-10-16/; Joshua S. Fox, Daniel H. Dorson, and Taylor J. Arluck, “Halted: Federal Judge Stops Enforcement of California’s Recently Enacted Labor Law,” National Law Review, December 31, 2025, available at https://natlawreview.com/article/halted-federal-judge-stops-enforcement-californias-recently-enacted-labor-law.
17. Sharon Block and Benjamin Sachs, Clean Slate for Worker Power: Building a Just Economy and Democracy (Cambridge, MA: Harvard Law School Labor and Worklife Program, 2020), 3, available at https://clje.law.harvard.edu/app/uploads/2020/01/Clean-Slate-for-Worker-Power.pdf; David Madland and Sachin Shiva, “Industry Standards Boards Are Delivering Results for Workers, Employers, and Their Communities,” Center for American Progress, November 21, 2024, available at https://www.americanprogress.org/article/industry-standards-boards-are-delivering-results-for-workers-employers-and-their-communities/.
18. Center for Labor and a Just Economy, Clean Slate Principles of Sectoral Bargaining (Cambridge, MA: Harvard Law School Center for Labor and a Just Economy, December 2022), available at https://clje.law.harvard.edu/app/uploads/2022/12/Clean-Slate-Principles-of-Sectoral-Bargaining.pdf.
19. Sandra Polaski, “Sectoral Bargaining in Comparative Perspective,” Presentation to Clean Slate Convening on Levels, Actors, and Scope of Bargaining, January 2019; Maarten Van Klaveren, and Denis Gregory, Restoring Multi-Employer Bargaining in Europe: Prospects and Challenges (Brussels: European Trade Union Institute, 2019).
20. Office of Governor Gavin Newsom, “California Increases Minimum Wage Protections for Fast Food Workers,” Press Release, September 28, 2023, available at https://www.gov.ca.gov/2023/09/28/california-increases-minimum-wage-protections-for-fast-food-workers/; “Angelica’s Story,” Harvard Law School Center for Labor and a Just Economy, available at https://clje.law.harvard.edu/angelicas-story/.
21. Minnesota Department of Labor and Industry, “Nursing Home Workforce Standards Board,” available at https://www.dli.mn.gov/about-department/boards-and-councils/nursing-home-workforce-standards-board; “Workers’ Boards,” In Building Worker Power in Cities & States, Harvard Law School Center for Labor and a Just Economy, available at https://clje.law.harvard.edu/publication/building-worker-power-in-cities-states/workers-boards/.
22. Nevada Department of Health and Human Services, “Healthcare Employment Standards Board,” available at https://www.dhs.nv.gov/xprograms/hcesb-home/.
23. Urban Institute, “State and Local Expenditures,” available at https://www.urban.org/policy-centers/cross-center-initiatives/state-and-local-finance-initiative/state-and-local-backgrounders/state-and-local-expenditures.
24. Building & Construction Trades Council of the Metropolitan District v. Associated Builders & Contractors of Massachusets./RhodeIsland (Boston Harbor), 507 U.S. 218 (1993).
25. “Government Procurement and Spending Authority,” In Building Worker Power in Cities & States, Harvard Law School Center for Labor and a Just Economy, available at https://clje.law.harvard.edu/publication/building-worker-power-in-cities-states/government-procurement-and-spending-authority/.
26. See Note 25.
27. Sachs and Fry, “Is Labor Preemption Good for Labor?”
28. U.S. Department of Labor, “UI Navigators External Report,” available at https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/UI-Navigators-External-Report.pdf.
29. David Madland, “The American Ghent,” Center for American Progress, August 12, 2021, available at https://www.americanprogress.org/article/american-ghent/.
30. Lyle Scruggs, “The Ghent System and Union Membership in Europe, 1970–1996,” Political Research Quarterly 55, no. 2 (June 2002): 275-97, available at https://journals.sagepub.com/doi/abs/10.1177/106591290205500201; Bo Rothstein, Between Class and Market: Postwar Unionization in the Capitalist Democracies (Princeton University Press, 1992), available at https://press.princeton.edu/books/paperback/9780691010335/between-class-and-market.
31. Missouri Revised Statutes § 130.028, available at https://revisor.mo.gov/main/OneSection.aspx?section=130.028; Pennsylvania Code § 9.1, available at https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/034/chapter9/s9.1.html&d=reduce.
32. Maryland Comptroller, “Tax Payment Methods,” available at https://services.marylandcomptroller.gov/taxes/en/payment-methods.
33. New York State Comptroller, “Tax Checkoffs 2024,” available at https://www.osc.ny.gov/files/reports/pdf/tax-checkoffs-2024.pdf.
34. See Hertel-Fernandez, Alexander, and Paul Sonn. “Building Worker Power in a Precarious Federal Landscape: Funding Labor Organizations to Build Power.” OnLabor (blog), March 18, 2026, available at https://onlabor.org/building-worker-power-in-a-precarious-federal-landscape-funding-labor-organizations-to-build-power/.
35. Maryland General Assembly, House Bill 2 (2023 Regular Session), available at https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/HB0002?ys=2023RS.
36. See, e.g., Wisconsin Legislative Council, “Court Decisions on 2011 Act 10,” Issue Brief, December 12, 2024, available at https://docs.legis.wisconsin.gov/misc/lc/issue_briefs/2024/employment_and_labor/ib_court_decisions_2011_act_10_msk_eh_2024_12_12; West Virginia Legislature, House Bill 2009 (2021 Regular Session, available at https://www.wvlegislature.gov/Bill_Status/Bills_history.cfm?input=2009&year=2021&sessiontype=RS&btype=bill.
37. Block, Nanda, and Nayak, “The NLRA Under Attack.”
38. Kate Bronfenbrenner, “No Holds Barred: The Intensification of Employer Opposition to Organizing,” Economic Policy Institute Briefing Paper No. 235, May 20, 2009, available at https://files.epi.org/uploads/236748.pdf.
39. Ballotpedia, “Time off Work for Voting,” available at https://ballotpedia.org/Time_off_work_for_voting.
40. “Regulation of the Employment Relationship and Miscellaneous Power-Building Policy,” In Building Worker Power in Cities & States, Harvard Law School Center for Labor and a Just Economy, available at https://clje.law.harvard.edu/publication/building-worker-power-in-cities-states/regulation-of-the-employment-relationship-and-miscellaneous-power-building-policy/.
41. Lynn Rhinehart, “Opening Door to More State Labor Policy,” available at https://poweratwork.us/opening-door-to-more-state-labor-policy.
42. There are strong arguments that the First Amendment protects collective bargaining rights, especially as the doctrine has evolved. James Gray Pope, “A Progressive Labor Vision of the First Amendment: Past as Prologue,” Columbia Law Review 118, no. 7 (November 2018): 2103-64, available at https://www.columbialawreview.org/content/a-progressive-labor-vision-of-the-first-amendment-past-as-prologue/; ACLU, “Collective Bargaining and Civil Liberties,” available at https://www.aclu.org/documents/collective-bargaining-and-civil-liberties.
43. Ballotpedia, “What Are Ballot Measures?” available at https://ballot.org/what-are-ballot-measures. Some of these states already protect workers’ rights to collectively bargain in their state constitutions. See Florida Constitution article I, § 6 (“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.”); Missouri Constitution article I, § 29 (“That employees shall have the right to organize and to bargain collectively through representatives of their own choosing.”). See also Sachs and Fry, “Is Labor Preemption Good for Labor?”
44. Ballotpedia, “Legislative Alteration,” available at https://ballotpedia.org/Legislative_alteration.
45. This is not always the case, of course. Just last year, Missouri lawmakers voted to repeal a successful ballot initiative to expand paid sick leave even though it passed with 58% support; Laura Hancock, “Missouri Voters Expanded Paid Sick Leave. The GOP Undid It, and the Repeal Just Took Effect,” Missouri Independent, August 29, 2025, available at https://missouriindependent.com/2025/08/29/missouri-voters-expanded-paid-sick-leave-the-gop-undid-it-and-the-repeal-just-took-effect/.
46. Illinois General Assembly, “Illinois Constitution,” available at https://www.ilga.gov/commission/lrb/con1.htm.
47. Arkadi Gerney and Sarah Knight, “Playing Hardball,” The American Prospect, October 18, 2024, available at https://prospect.org/2024/10/18/2024-10-18-playing-hardball/.
48. Washington Department of Revenue, “Physical Presence Nexus,” available at https://dor.wa.gov/education/industry-guides/physical-presence-nexus.
49. See Sachs and Fry, “Is Labor Preemption Good for Labor?”
Author Biographies
Sharon Block is a professor of practice at Harvard Law School, where she also serves as the Executive Director of the Center for Labor and a Just Economy. In 2012, President Obama appointed her to be a member of the National Labor Relations Board.
Rajesh Nayak is a fellow at the Center for Labor and a Just Economy at Harvard Law School and previously served as the Assistant Secretary for Policy at the United States Department of Labor in the Biden administration.