Picketing in the New Economy

The rise of the contingent and gig economies and of outsourced and subcontracted work has left many workers with insufficient bargaining power to successfully negotiate collective bargaining agreements with their direct employers. This problem is exacerbated by a statutory ban on worker picketing and boycotts of non-employers, or "secondaries," even where those employers collude with direct employers on wage-fixing or the suppression of union activity; have monopsony power over direct employers; or have substantial indirect control over worker wages through contractual arrangements. This Article is a crucial intervention in modernizing the labor law on worker picketing in the New Economy. It first outlines the current distinction between direct and "secondary" employers under the National Labor Relation Act's secondary picketing ban.

It then provides an overview of New Economy work arrangements and developments in economic theory necessary for updating the law on this distinction and for developing the economic expertise of judicial and administrative labor regulation. The Article then proposes unified principles for measuring labor law's success under New Economy work structures. These principles align expressive and associational values with achieving economically efficient and distributional outcomes for labor and capital. On this foundation, the Article assesses current law on the primary-secondary distinction and finds it deficient under these principles.

It puts forward instead, an economic effects-based standard that would make a defense to secondary picketing available where employees can demonstrate, through economic evidence, that a secondary target-whether through contractual agreements with a direct employer, monopsony power, or oligopolistic collusion-has sufficient market power to determine the wages or working conditions of picketing workers. The rule would dramatically benefit employees in the 'fissured" workplace by providing a tool to correct for unequal bargaining power between workers and their employers. Remedying this imbalance can enhance protections for the expressive activity and self-determination critical for democratic and civil society values, and reverse the adverse microeconomic wage effects and distributive consequences of the current law.