Brishen Rogers

Toward Third-Party Liability for Wage Theft

This Article examines how best to enforce wage and hour laws in an economy no longer characterized by vertically integrated production. In recent decades, responding to the globalization of product and labor markets, major firms have extended their supply chains and subcontracted many tasks that do not require skilled labor. As a result, much production now takes place through chains or networks of independent firms, with multiple contractual intermediaries between unskilled workers and the companies who benefit from their labor. Such workers frequently experience wage-and-hour violations, or what the U.S. Government Accountability Office recently called “wage theft.” The federal Fair Labor Standards Act responded to such challenges by defining many firms as “joint employers” of their contractors’ workers, and holding them liable for their contractors’ violations. Scholars have generally endorsed that approach, even as they’ve criticized courts’ implementation efforts.In contrast, this Article argues that simply liberalizing tests for joint employer liability is unlikely to significantly enhance wage and hour compliance. Such a strategy creates few incentives for firms to exercise their power over far-flung suppliers, and is inconsistent with common social and economic conceptions of employment. The Article therefore proposes a new regime, one holding firms to a duty of reasonable care to prevent wage and hour violations within their domestic supply chains, regardless of whether they enjoy a contractual relationship with the primary wrongdoer. Drawing from recent scholarship on third-party liability, as well as related tort doctrine, the Article argues that holding firms to such a duty is justified on both instrumentalist and non-instrumentalist grounds.

Three Concepts of Workplace Freedom of Association

This Article identifies three distinct concepts of workplace freedom of association (“FOA”) and traces their influence on labor law doctrine, focusing on the law of union security devices — contractual clauses that require workers, on pain of termination, to remit fees to unions. The “social democratic” concept informed the passage of the National Labor Relations Act (“NLRA” or “the Act”) and continues to inform social movement practice and some other countries’ jurisprudence. It views workplace freedom of association as a means to the end of ensuring economic equality and economic democracy, and generally endorses the so-called “union shop,” under which workers must contribute both to unions’ representational activities and to their legislative and organizing efforts. The “civil libertarian” concept was predominant in Supreme Court doctrine from the Warren Court era until recently. It emphasized individual rights of expression and political participation, and backstopped the line of cases declaring the union shop unlawful but requiring workers to help defray representational expenses. The “neoliberal” concept now appears ascendant. It views market behavior as a form of expressive behavior, and views compulsory payment of any union fees as unconstitutional. Disaggregating these concepts can enrich debates around workplace freedom of association in three ways. First, doing so illustrates that determining the scope of workplace freedom of association involves contestable value judgments about the goods and ends of unionization and association. Second, doing so illustrates that the Supreme Court’s recent union security cases reflect broader trends in the Court’s recent case law that constitutionalize a neoliberal political economy. Third, doing so suggests that the social democratic concept is both more coherent and more morally compelling than the civil libertarian concept, and may help it regain a foothold in debates around workplace freedom of association.