“Pro-Worker” but Anti-Constitution: A New Labor Framework Raises Serious Legal Doubts

Last month, Sen. Josh Hawley released an ambitious proposal to reimagine federal labor law. Billed as a “pro-worker framework,” the proposal quickly drew plaudits from labor advocates and Democratic senators. And since Senator Hawley is himself a Republican, the framework can now fairly be described as bipartisan.

But is it constitutional? While no text has been released, the framework does sketch out potentially sweeping changes. Among other things, it would ban “captive audience” meetings, create new labor-law penalties, impose contracts on private parties, and target workplace practices at specific employers. Each of those changes would raise serious constitutional questions. So while the final proposal might navigate its way through the constitutional clouds, its outlook for now is, legally speaking, stormy. 

A Framework for Change

Since coming to the Senate, Sen. Hawley has developed a reputation of going against the grain. Among other things, he has been more willing than his fellow Republicans to support labor unions. He voted against a resolution to veto a controversial joint-employment regulation supported by labor unions. He also once walked a Teamsters picket line. And now, he has proposed one of the most wide-ranging reforms to U.S. labor law in a generation—one that reads in part like a union wish list.

The proposal is organized around five main elements setting out broad policy goals. But those main elements are less important than the substantive changes embedded within. Among the changes, four have drawn the most attention. First, the proposal would ban “captive audience” meetings during union organizing campaigns. Second, it would create new remedies for violating labor law, including “civil penalties.” Third, it would require “interest arbitration” for first-time union contracts. And fourth, it would ban certain production quotas in warehouses.

These proposals have unsurprisingly proven popular with organized labor. If enacted, they would mark the biggest pro-labor shift in federal law for more than a generation. Unions have long pushed for quota limitations, stiffer penalties, and interest arbitration. And they have lobbied for a ban on captive-audience meetings. Those efforts have largely run up against a divided Congress, which has been unwilling to pass major labor reform since the 1950s. So unions have reacted to the proposal with guarded optimism, barely able to believe they could receive such a gift from a Republican senator.

A Constitutional Cloud

But regardless of the proposal’s partisan valence, it raises serious constitutional questions. In fact, each of its most important elements seems to clash with well-established constitutional law.

Start with the ban on “captive audience” meetings. Scary label aside, a captive-audience meeting is just a meeting at work to talk about labor issues. The meetings occur during work time, and employees are paid to attend. Yes, the meetings are often mandatory. But so are most work meetings. Employees are required to attend captive-audience meetings in the same way they’re required to attend safety standups. The only difference between a safety standup and a captive-audience meeting is the meeting’s topic—instead of talking about hard hats and chemical exposure, the attendees talk about unions. So it’s unclear how a law could differentiate between captive-audience meetings and other meetings without targeting the meeting’s content. And under the First Amendment, content-based regulations are generally invalid. So any effort to ban captive-audience meetings, but not other mandatory work meetings, would likely be dead on arrival.

The proposal to expand labor-law remedies suggests that employers who violate labor law would be subject to new “civil penalties.” There may be constitutional issues here too. Civil penalties are considered a classic “legal” remedy—i.e., a remedy that typically triggers the right to a jury trial under the Seventh Amendment. That right would fit awkwardly with the way we currently handle labor-law issues. Today, most violations are processed by the National Labor Relations Board, which gets the first crack at handing down remedies. True, the Board’s decisions can eventually be appealed to a circuit court. But circuit courts are appellate tribunals; they do not take evidence or empanel juries. So unless the proposal intends to overhaul the existing enforcement process, it would be hard to square with jury-trial rights.

Equally fraught is the proposal to impose interest arbitration for first contracts. Interest arbitration is basically a forced agreement: if the parties can’t agree to a contract, an arbitrator writes one for them, and it is binding whether the parties like it or not. This practice is common in the public sector, where employees often have no right to enforce their bargaining demands by going on strike. But in the private sector, it’s almost unheard of. The proposal would change that: any time a union and employer were bargaining for the first time, an arbitrator would have the power to impose a contract on them over their objections.

That power would inject new constitutional complexities into private sector bargaining. Traditionally, courts have rejected constitutional challenges to private-sector agreements by reasoning that the Constitution applies only to “state action.” And there is no state action when a private union and an employer make a deal on their own. But if the deal is imposed, the state-action hurdle to constitutional challenges goes away. Every provision of the contract becomes a provision imposed by law. The contract is itself state action and subject to constitutional constraints. And that could open the door to all kinds of constitutional challenges—including challenges to union-security provisions and “fair share” fees.

Constitutional doubts even hang over the proposal to regulate warehouse quotas. One might think that a proposal to regulate safe working conditions would be constitutionally sound. But even otherwise sound regulations can be constitutionally suspect when they’re enacted to hurt a single person. The Due Process and Equal Protection Clauses have long required legislators to pass laws for public-oriented reasons. That is, they have to at least try to act for the common good. That means they can’t pass laws just to hurt specific people or companies. And there’s reason to suspect the warehouse proposal is designed to hurt one specific tech company: Amazon. In 2022, California passed a similar bill “targeting” that same company. The framework calls that company out by name. And the Teamsters, who have publicly supported Senator Hawley and even donated to his campaigns, are actively trying to organize that company. So whatever the merits of promoting warehouse safety, this particular proposal seems aimed at regulating a single, disfavored constituent. That kind of targeted regulation raises serious Due Process and Equal Protection concerns.

No one could accuse Hawley’s proposal of lacking ambition. If passed, it would be perhaps the biggest reform of American labor law since the original Wagner Act. But the proposal raises serious constitutional questions. On its face, it seems to contradict well-established constitutional rules. Perhaps those problems can be worked out in the drafting; the legal wrinkles might be smoothed out in the legislative wringer. But until that happens, its central components are hard to square with constitutional law.