Terri Gerstein and Ben Sachs Propose Reforms as SCOTUS Weighs Preemption Challenge in Glacier

Terri Gerstein (’95), Director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program, contributed an article to Slate, and Ben Sachs (’99), Professor of Labor and Industry at Harvard Law School, coauthored a post for OnLabor proposing Congressional action anticipating a potential SCOTUS ruling favoring employers in relaxing preemption and impacting the right to strike. Calling out how current law creates obstacles to organizing amidst an historic wave of unionizing, Terri warned, “Everyone who cares about workers’ rights should be paying close attention. . . . A Supreme Court decision in Glacier’s favor would be a terrible blow for unions and for workers expressing their collective power. . . . Congress could fix the problem by amending the National Labor Relations Act—but only if Congress is populated by people who care about protecting workers’ rights rather than rejoicing in their demise.” (“The Supreme Court Could Not Have Timed Its Latest Attack on Unions Any Worse,” Oct. 14). Examining a potential outcome that would subject certain economic costs of a strike to state tort actions, Ben argued, “The asymmetric preemption regime likely to emerge from Glacier — one in which states can intervene on behalf of employers but not unions — should matter both to the labor movement and to Congress. In brief, against a Court-imposed baseline of an asymmetric preemption regime that favors employers, unions and their allies should fight for a broader — and hence more symmetric — relaxation of preemption rules. . . . Congress should ensure that pro-union states have an equal amount of discretion to support union organizing, collective bargaining, and collective worker activism. . . . Whatever shape such Congressional action takes, however, we should be united in demanding that Glacier not be the last word on federal preemption reform.” (“Glacier’s Employer-Only Preemption Reform,” Oct. 24).