This Labor Day, Let’s Celebrate Individual Worker Rights

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Labor Day 2020 is definitely an ironic moment: The federal government is having a holiday to celebrate working Americans at a time when record numbers of people are prevented from going to their jobs by force of law. Be that as it may, those working Americans still deserve a day of praise now more than ever. They’re the ones whose contributions will put the economy back on the road to recovery, not Congress, the White House, or any governors. That is, the workers will once they’re actually given the chance to get back to work by Congress, the White House, and the governors.

It is something that conservatives and libertarians should bear in mind. Workers are integral to a free market and a functioning economy. Restricting the ability of those workers to participate can seriously damage the economy just as much as an onerous tax or a burdensome regulation. In short, workers’ rights aren’t an issue that free marketers should automatically cede to the left. They can and should champion workers’ rights too.

This does not mean accepting the way the left frames the issue: support for workers as a collective through knee-jerk support for unions, attacks on job creators, and a higher minimum wage. Rather, it should mean standing up for the rights of individual workers, letting them speak and act for themselves instead of forcing them into doing things for their own good. As for the minimum wage, the emphasis should be on helping workers get jobs that pay more than that.

Standing up for individual workers’ rights is not something existing law does well. The National Labor Relations Act generally treats the terms “worker” and “union” as synonymous. While this makes sense in theory—unions are supposed to be the workers’ collective voice—in reality, a union is a separate legal entity that doesn’t necessarily act in the best interests of everyone it represents. It is common for workers to be represented by a union they never had the opportunity to vote for in the first place—just ask a Detroit assembly line worker—and no practical means to hold it accountable.

“Right to work” laws give union members in 27 states that option by prohibiting union-management contracts that force workers to support unions. It’s a simple, powerful argument to make to any rank and file union member: You, not anyone else, decide whether you want to belong to the union. Force unions to be attentive to those members’ concerns. After a burst of activity a decade ago, the right to work movement has lost momentum more recently. It should be revived.

Individual workers’ rights don’t mean flatly opposing having unions. There’s nothing inherently wrong with workers acting collectively to improve their lot. The “right to assembly” is part of the First Amendment, after all. So, if that is what the workers genuinely want, they should get it. Moreover, unions have a fair point when they say that right to work laws create a free rider problem. That can be solved by ending the unions’ obligation to represent all workers. Make it a two-way street—if the worker doesn’t support the union, he or she doesn’t get the benefits of membership. This is the system that every other membership-based organization uses. Why shouldn’t unions?

Supporting individual workers’ rights goes beyond union issues. It means being vigilant against anything that limits how people can earn a living. California’s AB5 is a classic example of what’s wrong with the “It’s for their own protection” approach. The law was intended to bring rideshare companies Uber and Lyft to heel by forcing them to reclassify all workers as employees and therefore abide by the state and worker regulations for overtime, unemployment, and the rest. But there’s no evidence that this is what most of those drivers actually want. Meanwhile, in their attempt to prohibit the type of contract work that rideshare companies offer, the lawmakers strictly limited most types of contract work, severely impairing the ability of all manner of freelancers to make a living.

Occupational licensing reform is another area where free marketeers should involve themselves. State and local government commonly require licenses to work in in a particular field. While this makes sense when public safety is potentially involved—as in, say, an emergency medical technician—in other cases these barriers to entry are rarely necessary. Too often they serve as a means for entrenched groups to limit competition by creating a high bar for entry by new workers. There’s a growing bipartisan consensus on this issue too; the Obama administration supported reform. Most action will be at the state and local level where these regulations are found, but there are some good ideas at the federal level too, such as making licenses portable from one state to another.

Individual workers should not be limited in where they can sell their skills, so things like non-compete clauses in worker contracts should be opposed too. Employers often try to prevent competitors from stealing away workers by including provisions in employment contracts that temporarily prohibit what workers can do after they leave the company. If management can’t keep their workers happy that’s on them. What better way is there to empower workers than to let them be able to walk into their boss’ office and say, “Can you match what your competitor just offered me? If not, I’m leaving.”

The product workers have to sell is their time and their skills. In truly a free market they should have the maximum ability to sell those. Anything less is a limit on their rights.