Ask Amy Coney Barrett If Bosses Should Be Free to Fire Workers at Will
JOHN BUELL
10/12/2020
Southwest Harbor, Maine (Special to Informed Comment) - What is at stake in
the battle over the confirmation of Amy Coney Barrett? For most commentators
the immediate answer is women's control over their reproductive health and
maintenance of the affordable care act. That is surely true, but excessive
focus on those issues can obscure consideration of the ways in which many
conservative jurists now seek to undermine the legal foundation of our
already tattered social safety net. I have not read enough of Barrett to
judge her fundamental economic views, but it is important for the Judiciary
Committee and the Senate to determine if Barrett wishes to change settled
law in the domain of economic regulation
Such cardinal pieces of welfare state legislation as the National Labor
Relations Act, granting workers the right to organize and the Fair Labor
Standards Act, setting minimum wage and maximum hours standards, emerged
from political struggle. But in addition these and other similar laws had to
overcome fierce legal obstacles. The central legal barrier was the infamous
Lochner vs. New York, (1905) in which the Supreme Court of the United States
ruled that a New York law establishing a 60 hour per week maximum hour
standard for bakers was unconstitutional.
As University of Michigan law professor Samuel Bagenstos put it in an
excellent monograph for the Economic Policy Institute, the justices operated
from a narrow, legalistic concept of freedom and equality: "The idea, which
judges often made explicit, was that absent labor legislation employers and
workers were each equally free to enter into, or refuse to enter into,
contracts with each other. That is, the courts presumed that employers and
employees had equal power in the labor market. "
The economic crisis of the Thirties made these pristine notions of freedom
of contract politically untenable, but nonetheless corporate employers
fought a determined battle through the courts in an attempt to overturn such
laws. Despite having reversed a whole series of early New Deal era laws the
Court in landmark rulings in effect overturned Lochner. Bagenstos quotes key
passages from Senator Wagner's defense of the legislation of which he was
primary sponsor and from Chief Justice Charles Evans Hughes's majority
opinion sustaining the law.
These defenses raise moral and legal issues that are insufficiently advanced
in current debates on the minimum wage, which often hinge only on the
microeconomics of job creation/destruction
Bagenstos quotes Wagner as saying,
"The law has long refused to recognize contracts secured through physical
compulsion or duress. The actualities of present-day life impel us to
recognize economic duress as well. We are forced to recognize the futility
of pretending that there is equality of freedom when a single workman, with
only his job between his family and ruin, sits down to draw a contract of
employment with a representative of a tremendous organization having
thousands of workers at its call. [Nat'l Labor Relations Bd., Legislative
History of the National Labor Relations Act of 1935 at 20 (1949).]
Bagenstos then cites Chief Justice Hughes, writing in West Coast Hotel
Company v. Parrish. He explains,
"Hughes also highlighted the way the seemingly private conduct of employers
in paying starvation wages imposed a burden on the public purse: '[w]hat
these workers lose in wages the taxpayers are called upon to pay. The bare
cost of living must be met.' Allowing employers to pay their workers low
wages, he said, would thus be "a subsidy for unconscionable employers."
Bagenstos argues persuasively that though Lochner as constitutional law may
have been overturned, echoes of the law still enter into common law
precedents lawyers employ in rule making for regulatory statutes. As one
example he cites the principle of at- will job tenure in most states'
employment law. This principle gives employers the right to fire for a good
reason, a bad reason, or no reason at all. Defenders of the principle point
out that it awards the same freedom to workers. But once again, as with
Lochner, advocates of the principle neglect the differences in power and
life circumstances between most workers and their employers. " To treat the
employer's ability to terminate an employee as equivalent to the worker's
ability to walk away is to disregard that reality. Workers typically cannot
simply leave their jobs."
More broadly, Bagenstos points out that legislation has nipped away at the
at- will doctrine by designating certain concerns for which an employer may
not fire an employee. Nonetheless, the courts, both liberal and conservative
justices, have sought to narrow these exceptions and make appeal to them
difficult. At- will remains the default choice.
Bagenstos argues that at- will is both bad in itself and has other
deleterious consequences. It reinforces extreme hierarchies within the
workplace. It undermines protection of workers speech and privacy rights
both of which are forfeited in the workplace.
Amy Coney Barrett comes up for confirmation at a time when trust in our
highly inegalitarian capitalism is low, especially among the young. Her
interpretation and perspective on Lochner and its descendants may play a key
role in our political evolution. I hope she will be interrogated as
thoroughly on these issues as Roe v Wade and the Affordable Care Act.
