Expanding Our Vision — and the Law’s Coverage — to Include “Marginal Workers”

A strange tension exists in U.S. labor and employment law.  On one hand, the number of laws granting rights to employees has increased considerably in recent decades.  On the other hand, many have argued that these laws have fallen far short of their expected goals and have failed to adequately protect a significant number of workers.  In Marginal Workers, Ruben Garcia goes further than any previous work in describing the various ways in which these laws fail to protect some of the most vulnerable workers in the country.

Marginal workers are those who “fall through the margins of different laws that are supposed to protect them, but lack the political power to fix the holes in the legislation.”  (p. 4).  This includes, among others, immigrant workers in post-Hoffman Plastics limbo, temporary workers, noncitizens, and a variety of low-wage workers who are covered by statutes (including the FLSA, Title VII, and the NLRA) but often get inadequate protection from them.  This includes, but is not limited to, those who should be covered by the statute, but who have been improperly classified as independent contractors or as exempt from the FLSA or NLRA.  The default “employment at-will” rule means that even at best, employment laws are a “patchwork quilt with some rather large holes.” (p. 6).

The book is informed by both practical experience and theoretical knowledge.  Garcia effectively weaves the stories of real workers in real cases (some from his own practice experience) in with  discussions of “rights talk,” “intersectionality,” and the “mutually constitutive nature of law and society.”  In so doing, he addresses a wide range of scholarship from the left, right, and center.

The book is not, however, simply a list of complaints about the practical and theoretical limits of employment laws.  Garcia provides ideas that lead to practical suggestions.  He articulates a “civil rights” approach to union rights that (among other things) could have yielded an intriguingly different result in Emporium Capwell that, in turn, might have further facilitated the participation of women and minorities in unions.  He calls for an expanded vision of anti-discrimination laws — which may result, as he notes, in something like an end to employment at-will, but which would be rooted in political movements.  He links abuse of guest workers to the “democracy deficit”:  their lack of representation in the country where the abuse takes place.  Here, he proposes an international labor rights approach with actual enforcement mechanisms.  He properly rejects a dichotomy of strategies focusing only on statutory rights or only on political movements.  Fundamentally, Garcia does much to show how the ideal, “labor rights are human rights,” should and could be made more real for more marginal workers.   In so doing, he provides an impressive and provocative view of employment law as a whole.