Structural Labor Rights

American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since Great Depression— vast majority of depend only on individual negotiations with lift stagnant wages upward economic mobility. decentralized, is not enough. Economists legal scholars agree that, absent regulation protect rights, markets naturally strengthen employers’ over workers. Existing antitrust have failed step in, leaving free coordinate consolidate labor-market while constraining ability do same. The dissolution rights resulted spiking income inequality: suffered economy-wide wage stagnation a declining share national for decades. To resolve this crisis, some advocated ambitious reforms, like sector-wide bargaining, others turned tackle employer power. While these proposals are vital, they overlook existing opportunity already contained that would avoid political doctrinal obstacles such large-scale reforms. This Article argues “structural” approach revives modernizes its purpose through deploying innovative social scientific analysis. A one takes into account relative determining scope substantive resolving disputes. Because current buyer strengthens their indefinitely hold out worker demands employment bargain, seeks deploy tools tailor law’s provisions so resituate position from which could equally out. makes three key contributions. First, it documents dispersion misalignment under law, detailing historical narrowing limited tactics by small set highly protected enterprises concomitant rise (Part I). Second, introduces schematizes wealth literature relevant evaluating employees II). And finally, offers concrete how apply insights areas National Labor Relation Board’s adjudication regulatory authority: determination “employer”/”employee” status, employees’ section 7 Relations Act (NLRA), what counts as sanctionable unfair practices 8 NLRA III).