What Does the ‘Janus’ Decision Mean for Working Women?
By stripping unions of the "fair share" fees that allow all workers to be covered by unions' powerful legal power, SCOTUS has once again left the most vulnerable workers out to dry.
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Angela Harris took the stage at the Labor Notes conference in Chicago this past April and told the crowd, “I’m coming for everything that Scott Walker took.” The first-year Milwaukee, Wisconsin, kindergarten teacher and activist in the Milwaukee Teachers Education Association (MTEA) has only ever known the classroom post–Act 10, the 2011 Wisconsin law that Governor Scott Walker and his allies passed over massive, sustained worker protests, stripping the teachers and other public employees of most of their union rights, including the ability to bargain over anything other than a cost-of-living increase, and requiring them to re-certify the union every single year.
Harris is just one of many public employees, many of them, like her, women of color, who have been living and working under conditions worse than those that the Supreme Court just imposed on the entire public sector. The “fair share” provision that Justice Alito, writing for the 5-4 majority, invalidated in Janus v. AFSCME is the requirement that workers pay something to the union as reimbursement for the cost of representing them. Such a provision had been previously upheld by the court as a way to maintain “labor peace” by ensuring that one union, once voted in by the workforce, would represent everyone in that workplace, even if some workers there decided not to become full-dues-paying union members. Getting rid of it allows workers to “free ride,” to get the benefits of a union contract and union representation without contributing anything to the union. Although technically brought by a worker, Janus was entirely funded by the National Right to Work Committee and was a thinly veiled effort by companies to weaken unions.
Twenty-two states had such provisions in place for public employees. In the remaining states, workers like Angela Harris have been figuring out how to organize collectively in hostile territory. And this winter and spring, massive strikes erupted in several of those states, beginning in West Virginia, where teachers consciously evoked the memory of the mine wars that rocked the state before modern-day labor laws institutionalized collective bargaining. The strikes spread to Oklahoma, Arizona, Colorado, North Carolina, and Kentucky, and inspired teachers in other states—teachers unions are reporting an increase in membership over the past year, especially in states where the strikes took place, but also in states like Florida where the Janus rule is already in place. Labor peace, it seemed, was over, even before Alito could shrug it off.
The #MeToo moment has already drawn the eyes of the nation to women’s working conditions, specifically around sexual harassment—the leadership of the Alianza Nacional de Campesinas, the farmworker women’s organization, particularly brought attention to the plight of working-class migrant women who have been shut out of the nation’s labor laws from the beginning. Sexual violence is just one part, though a big one, of farmworkers’ struggle on the job, but farmworker organizations from the Alianza to the Coalition of Immokalee Workers in Florida have come up with innovative organizing strategies to hold big-name brands accountable for the conditions of the people who put food on their shelves and our plates. As the Supreme Court and conservative electeds like Scott Walker unpick the fragile compromise that American labor law has always been, it is to the leadership of women like the farmworkers that we should be looking.
Domestic workers and home care aides, too, know the score—domestic and farm work were carved out of the protections of New Deal–era labor law at a time when they were the most common forms of labor for Black workers, as part of a compromise with Southern Democrats. In recent years home care workers, who had previously fallen into that carve-out, had made gains in unionizing with the help of state officials in several states where home care workers are paid through Medicaid. Those officials made the decision that in such situations home health workers were public employees with the right to organize. In Harris v. Quinn, the ruling that presaged Janus, Alito ruled that home care workers were in fact only “partial” public employees, stripping their unions of the “fair share” fees that he just overturned for the entire public sector in Janus. Harris laid the groundwork—Alito cited himself in his majority decision in Janus—but it also denigrated the work of these women, again, mostly women of color and immigrants, who take care of people with disabilities and the aging.
These workers are doubly under attack now, as Jess Morales Rocketto of the National Domestic Workers Alliance recently told me, with Trump’s immigration crackdowns and institutionalized family separations. Migrant women have for decades come to the U.S., leaving their own families behind in order to care for the children of the U.S. middle class as those women, in turn, are working longer and longer hours just to keep up. But across the country migrant working women have been organizing—a domestic workers’ bill of rights was just introduced in Seattle, on the heels of similar bills in several other states, and domestic workers and farmworkers are at the center of the fight against Trump and Jeff Sessions’s “zero tolerance” policies at the border. They understand that their fight is not just in the workplace, but is against all the forms of injustice meted out by a regime concerned only with its own grift, expanding inequality by taking from the poor to give to the rich and using racist scapegoating to retain support from its base.
The Trumpist vision of the (white) working class is of a man who works in a factory or a coal mine, but the working-class rebels of the past years have been more likely to be immigrant workers in a hotel or a household—Marriott workers, many of them hotel housekeepers who once again are overwhelmingly women of color and many of them immigrants, marched and rallied in eight states this week for fair contracts that include protections against sexual harassment and assault, rampant in the hotel rooms where they labor mostly alone. They have been the women of the NDWA, marching for migrant rights; they have been home care workers who helped beat back the attempt to repeal the Affordable Care Act. They have been women like Angela Harris and Amy Mizialko, vice-president of the MTEA, coming bit by bit for what Scott Walker took as they strengthen their union, doing the painstaking work of re-certifying every year. Labor law wasn’t written for them in the first place; it intentionally left many of them out, but it also assumed generally that a woman’s place was in the home. Now, with the always-fragile compromise shattered and the corporate class moving in for the kill, those workers are thinking about what labor law for them would look like.
“I want collective bargaining back. But … I don’t want it back the way that it was,” Mizialko said. Before Act 10, she was only peripherally involved with her union. The union is smaller now, but tighter, and it is a fighting local pointed to by advocates from around the country as one that is making gains under harsh circumstances. Teachers unions, particularly in the wake of the 2012 Chicago Teachers Union strike, have in many places elected reformers, invested in organizing, and in the case of Chicago, turned laws designed to hinder them—like an ultra-high bar instituted for a strike vote—into assets that helped build power. They have remembered that the union is not just the institution that manages a contract every four years—it is the collective power of working people coming together, supporting one another, and challenging their bosses, politicians, and everyone in power to do better.
The return of the strike in the era of Trump should not surprise us, in this way—as I’ve written, Trump is nothing so much as a bad boss and the best way to disrupt the power of the boss has always been to refuse to work for him. Not individually, but collectively. The main thrust of the political project of the past 40 years—the one we call “neoliberalism”—has been to destroy social solidarity, to make us think once again that we are all out for ourselves. That is the project at the heart of the Janus decision, the idea that a single worker can do better for himself with the tiny raise that he could get by no longer paying fair share fees to the union than he could acting collectively with his colleagues. It will be at the heart of the campaign by the right to get workers to take advantage of the Janus ruling, too.
Women workers have long been plagued by the idea that they are more “naturally” caring than men, a stereotype that has pushed them into teaching, domestic work, service work, nursing, and the public sector broadly. Yet while that stereotype is false, it has produced a lot of workers with the kinds of “soft” skills too often forgotten by the labor regime of the last hundred years–the very skills that are good at building solidarity, the kind of solidarity that is needed to pull off a strike in rural West Virginia and to get the community to rally behind you, and the kind of solidarity that draws thousands to airports and ICE offices in protest.
As we begin to think beyond the Janus case and to think about the next few decades of work, we have plenty of examples of women workers leading the way in thinking beyond the existing labor laws and structures we’ve had—thinking about building protections against sexual violence like the Marriott workers or the Alianza Nacional de Campesinas; thinking about benefits that don’t come from the boss, like Seattle’s domestic workers or National Nurses United’s longtime campaign for universal healthcare; thinking about fair pay but also rebuilding crumbling schools like teachers from coast to coast. Most of all, like Angela Harris and Amy Mizialko, they are thinking about what collective action looks like whether or not the law is on their side.
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