During the Great Depression, the United States aimed to enhance workers' rights through New Deal legislation, exemplified by the Fair Labor Standards Act (FLSA). But by design it excluded Black workers. The bill set a minimum wage, maximum work hours, and overtime protections, but southern Senators demanded different wage rates for Black laborers and white laborers. They fought to exclude industries with predominantly Black workforces in the South from maximum work hours and overtime pay. During the Congressional hearing on the FLSA, Charles Houston, representing the National Association for the Advancement of Colored People, said the bill “looks like a sieve with holes just big enough for the majority of Negroes to fall through.” Houston was right. Because of that sieve, today’s gig workers, many of whom are Black, continue to be excluded from worker protections.
The FLSA is part of the American labor and employment law system that provides protections to workers. However, this system has always been tiered: it classifies some workers as eligible for protections and others as ineligible. This tiered system goes back to slavery. Millions of enslaved Africans powered the American economy with their labor but suffered dehumanization and violence. Even after the emancipation of enslaved Africans, the law continued to exclude Black workers from new worker protections. Today the exclusion of gig workers from current labor and employment law carries a similar pattern to the long history of the exclusion of Black workers from worker protections. To achieve worker and racial justice, we must undo this tiered system and ensure all workers receive the same basic protections.
These protections were won by workers who organized over decades. But certain workers do not benefit from these policies or had to organize longer to receive them. Foodservice and hospitality workers, who are excluded from minimum wage protections, are still fighting one standard wage. Agricultural and domestic workers are excluded from the right to form a union under the National Labor Relations Act. Some domestic workers and agricultural workers are eligible for overtime pay only through later amendments to the FLSA.
These industries –– food service, hospitality, agriculture, and domestic care –– have great overlap with the roles performed by enslaved Africans before emancipation. The New Deal worker laws, the FLSA, the Social Security Act, and the National Labor Relations Act, were weakened to appease policymakers who wanted to preserve a subservient labor force with the end of slavery. The failure to fight for racial equity created the system we are working to transform today. While the creation of precarious employment no longer happens along explicit race lines, it preserves the racist system established by American laws and policies. This two-tiered system subjects gig workers and workers earning tipped wages, who are disproportionately Black, to the heirlooms of the Antebellum.
Gig workers operate with fewer legal worker protections: no minimum wage, no statutory right to form recognized unions, and no overtime protection. This means gig workers must work longer hours to break even. They also experience more wage theft as a result of opaque payment systems and companies withholding customer tips. Gig workers must organize without access to the same legal tools as unions. Thankfully there are efforts, primarily from the executive branch, to include gig workers in labor reform. While agency action and presidential Executive Orders are crucial to provide immediate relief, workers should not have their rights yo-yo back and forth between presidential administrations. Though they do not exclude workers on the basis of race, gig companies take advantage of weak labor protections and hire workers as independent contractors.
Gig workers grapple with employers’ exploitation of the two-tiered system. Companies deliberately misclassify gig workers as independent contractors. While the law sets the minimum rights for a worker, the employer determines the categorization of their worker: either as employee or independent contractor. Employees have access to most or all historic labor protections, while independent contractors have access to fewer rights. Labor and employment law provides guidance to ensure workers are correctly categorized, but new forms of management have complicated the application of the law. Employers are exerting more micromanagement of workers while withholding robust pay and benefits. Independent contractors historically have exchanged more control over their work in exchange for health insurance and sick days. Less control and fewer benefits create an inequitable set-up for independent contractors.
If labor and employment law reform legitimizes arbitrary distinctions between workers, such as the racial makeup of an industry or an employer label, workers will continue to suffer from an inequitable system. They need legislative action that enshrines protections and improves quality of life. But Congress must do more than address misclassification. It must also expand the rights and protections of workers by eliminating the vestiges of slavery. Congress must take away the arbitrary distinction between industry and classification through reform like the PRO Act, which gives more workers the right to unionize, and codification of the ABC test, which prevents misclassification of employees as independent contractors. It must also establish a just cause system that makes it harder to fire workers without good reason, make it easier to get a union contract, provide strong incentives to create safe workplaces, and give convincing disincentives to committing wage theft. Anti-racist policies, such as the National Black Worker Center’s Black Worker Bill of Rights, will correct the vestiges of slavery in employment and labor practices.
If we don’t push for radical inclusion in labor law reform, the same arbitrary creation of a vulnerable class of workers will continue. The law’s tiered treatment of workers, creating unsustainable conditions through systematic exclusion, is similar to the notion of “organized abandonment” coined by Ruth Wilson Gilmore in her book Golden Gulag: in the same way certain people are deemed expendable because they are incarcerated or disabled by policies and practices, American labor and employment law deems certain workers as expendable by affording them fewer protections. We saw this after the emancipation when formerly enslaved Africans were paid with tips, and now, with gig workers making most of their income from customer tips. And the treatment of workers as expendable will not remain only in the domain of historically low-wage workers, this is already extending to “professional” careers, such as universities shifting more and more teaching from tenured professors to adjunct professors.
Any stratification of workers into deserving and undeserving of protections will create a vulnerable class that employers will exploit. Workers need comprehensive solutions that address the conditions plaguing them to usher us into a more equitable future.
These are exclusively the views of the author.
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