Which Side Are ‘Liberal’ Lawyers On?
In April, excerpts of a leaked Amazon memo showed company executives planned to publicly attack one of their workers. The company had terminated Christian Smalls for leading a protest that demanded a temporary closure of its Staten Island warehouse. The notes revealed that General Counsel David Zapolsky wanted to portray Smalls as “not smart or articulate” and as “the face of the entire union/organizing movement.”
That anti-union giant Amazon would smear a worker is not surprising. What’s startling is that just over one month earlier, Zapolsky, a 20-year Amazon employee who has served on the boards of several nonprofits, had been honored for supporting pro bono work by the well-regarded legal group New York Lawyers for the Public Interest.
The disconnect isn’t hard to understand. As corporations have gained power, big business dominates the legal profession more than ever, including through its charitable giving. Anything that threatens the status quo in corporate power over their workers has, as a result, been pushed out of the legal community’s notion of the “public interest.” One can represent poor people pro bono in areas like housing, immigration, education, family, and criminal justice one day and suppress their rights as workers the next without much dissonance.
Though lawyers identify more often as liberal, they are less likely to speak up against attacks on workers’ rights, even if they defend immigrant or reproductive rights. One 2015 study found that elite law students at Yale, though 10 to 1 Democrats, were overwhelmingly against economic redistribution. Blame a decades-long coordinated effort to undermine unions by normalizing anti-worker attitudes among lawyers across the political spectrum.
It was not always like this. Supporting workers and unions was once part and parcel of being a public-interest lawyer. Clarence Darrow defended Western Federation of Miners and Wobbly leader Bill Haywood in the 1907 trial for the murder of a former Idaho governor who sought to crush the miners’ union. During World War II, the Brotherhood of Sleeping Car Porters, a Black-led union, helped set up the first equal-employment commission to fight race-based employment discrimination, which was staffed with union lawyers. By the early 1960s, labor lawyers shaped policy at the highest levels. President Kennedy appointed Arthur Goldberg, former general counsel for the United Steelworkers, to the Supreme Court in 1962, where he supported the right to contraception and opposed the death penalty. In short, labor unions and their lawyers had power and used it to create greater equality far beyond union shops.
But the right wing’s long game paid off. Today, a mercenary attitude towards workers’ rights exists among many of the nation’s top lawyers, including anti-Trump, #Resistance types and high-ranking Democrats. Politico chose Supreme Court litigator Neal Katyal as one of its 50 people with “ideas blowing up American politics” for his role arguing against Trump’s Muslim ban. Weeks later, though, Katyal argued for employers in Murphy Oil, a Supreme Court case that locked millions of workers into private arbitration agreements that prevented them from suing their employers for sexual harassment and other civil rights violations. Uber’s former head of litigation and employment offered up her expertise to the resistance in the days after the 2016 election in a thousands-strong Facebook group titled “Lawyers of the Left.” At the same time, Uber was, and is, known for ruthless worker exploitation and defiance of the law.
When Trump nominated an anti-union state judge to a federal district court in Virginia, both Democratic Sens. Tim Kaine and Mark Warner supported him. In early 2019, an Obama-appointed Equal Employment Opportunity Commission commissioner with an impressive record championing LGBTQ rights at work became a partner at Morgan Lewis, a law firm storied for its ruthless union busting. For that matter, President Obama, a Harvard-trained lawyer and onetime community organizer, declined to campaign against Wisconsin Gov. Scott Walker’s gutting of bargaining rights for 175,000 public employees, or when four states, including Michigan, became right-to-work. Today, top partners at several major firms known for “union avoidance” are maxing out donations to the Biden campaign, even though studies show that weakening unions suppresses Democratic turnout in elections.
Even as the legal profession has largely been missing in action, however, worker-led opposition has racked up some of the biggest progressive victories in the Trump era. The Fight for $15 doubled the number of states adopting a higher minimum wage, putting a third of workers nationwide on the path to $15 an hour. At Google, a global walkout bolstered the #MeToo movement by shining a bright light at the company’s inaction in the face of sexual harassment. The striking teachers in West Virginia, Colorado, Arizona, and Oklahoma helped propel Democrats to big midterm victories. And now, Black and brown workers like Christian Smalls are exposing the hypocrisy of companies like Amazon and Instacart that claim to support Black Lives Matter but retaliate viciously against workers organizing for safety.
Worker power is clearly indispensable in the fight for democracy and equality. And yet, liberal institutions, especially legal ones, have not treated workers’ rights as fundamental to a democratic society, failing to match the conservative assault on them. Unlike the right-wing Federalist Society, the liberal legal community does not seek to train judicial clerks or influence judicial nominations. Though the Kochs have dumped mountains of cash in “shrinking” unions, liberal-leaning foundations have mostly supported the causes of poor workers only when they don’t get too close to unions. Even the largest liberal lawyers’ group, the American Constitution Society, counts among its board members a high-ranking Amazon attorney, Andrew DeVore, whose docket includes—you guessed it—labor and employment issues. (Full disclosure: I am an ACS member and helped organize a letter protesting Mr. DeVore’s presence on the board.)
Stopping the spread of COVID-19 in hospitals, warehouses, transportation, schools, and every public place depends on lawyers standing up to the corporations writing “the rules of the pandemic response.” Since Zapolsky’s memo became public, at least eight Amazon workers have died from coronavirus. Indeed, as COVID spread, the company doubled down. Lawyers from Trump Secretary of Labor Eugene Scalia’s old firm Gibson Dunn told a federal judge in Brooklyn that by arguing for basic workplace protections against the virus, Amazon’s workers are trying “to exploit the pandemic.” However sincere in his commitment to public service and accomplished as a lawyer Amazon’s general counsel may be, his defense of anti-worker conduct reveals that public-interest law’s dependence on corporate largesse masks the systemic causes of inequality.
So what can lawyers do to support a pro-worker legal culture?
First, lawyers, with proper training and supervision, should take on workers as clients in cases against powerful employers. It’s more important than ever that workers get quality representation as they return to jobs under dangerous conditions, and that such representation also extend to remote workers facing discrimination for family responsibilities and other challenges. The odds are stacked so high against workers in the courts that finding lawyers to take employee cases is frequently harder than in other areas of the law.
Second, lawyers should advise clients who are employers to obey the law and treat workers fairly as sound business and legal practice, to voluntarily recognize unions when employees organize them (as is their right under federal law), and to bargain with them in good faith. This is particularly important for public-interest legal organizations, which can lead by example.
Third, lawyers can advocate for labor law reform and basic labor rights like just-cause termination, paid sick leave, and freedom from mandatory arbitration. We must roll back current restrictions on labor boycotts and recognize them as First Amendment speech. Lawyers can also use their powerful networks to support more pro-worker political candidates from working-class backgrounds.
And fourth, law schools and groups like ACS should invest in labor and employment education. Many schools no longer have full-time labor and employment faculty. We need to foster a generation of worker advocates to counteract the effect of union-busting groups like Teach for America that funnel graduates into law school.
Journalists, teachers, nonprofit workers, and other white-collar professionals are already waking up to the need for solidarity to rein in corporate power, with many of them unionizing in recent years. Public-minded lawyers’ relative lack of concern for workers is thus both anomalous and alarming, given the profession’s unique role in shaping our institutions. With record levels of unemployment and worker deaths mounting, we cannot claim to practice public-interest law and be oblivious to what happens to people on the job. To change that, lawyers must decide which side we are on.
Leo Gertner is a labor and employment lawyer.
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