The Center for Law and Work (CLAW) fosters cross-disciplinary scholarship, student engagement, and community involvement to address pressing and emerging labor and employment issues faced by our most vulnerable working populations. With an equity lens, we develop law and policy solutions to what is broken in our current structures of work, in order to chart a promising future of progressive labor policy that is inclusive of all workers and promotes a vibrant and just economy. More about CLAW’s mission.
Hot off the press! Democracy, Federal Worker Job Rights, and the Nonpartisan Civil Service (Working Paper)
By Catherine L. Fisk, Barbara Nachtrieb Armstrong Distinguished Professor of Law, University of California, Berkeley & CLAW Faculty Co-Director
CLAW's Latest Reports, Notes & Briefs
Formalism and Functionalism in California’s Unconscionability Doctrine: An Analysis of Fuentes v. Empire Nissan, Inc.
STUDENT SCHOLARSHIP SERIES (July 2024) | By David Beglin, J.D., Berkeley Law, Class of ‘24
In Fuentes v. Empire Nissan, Inc., a case currently pending in the California Supreme Court, the underlying appellate court decision ruled that an employment arbitration agreement was not unconscionable and was enforceable, despite significant abuses in how the contract was formed. Finding a contract unenforceable under the unconscionability doctrine requires a showing of both unconscionability in how a contract was formed (“procedural unconscionability”) and in the terms of the agreement itself (“substantive unconscionability”). Taking a formalistic approach, the Fuentes court views procedural and substantive unconscionability as conceptually distinct inquiries. But California courts must analyze unconscionability on a sliding scale, allowing significant procedural unfairness to compensate for less significant substantive unfairness, and vice versa. This sliding-scale aspect of California’s unconscionability jurisprudence is functional and recognizes that the unconscionability analysis must be holistic. This Note argues that the Court should reject the Fuentes court’s formalism and embrace the sliding-scale approach’s functionalism.Olson v. California: Let the Statute Speak for Itself
LAW & POLICY NOTE (March 2024)
Olson v. California—a case pending before the Ninth Circuit en banc in which plaintiffs Uber and Postmates have alleged that AB 5, California’s worker classification statute that codifies the ABC test, violates their equal protection rights—should be an easy case to resolve against plaintiffs under settled equal protection doctrine. But a panel of the Ninth Circuit found otherwise, in an astounding decision holding that the district court erred in dismissing plaintiffs' equal protection claim. Plaintiffs' claim essentially centers on one provision of the law, California Labor Code § 2777, known as the "referral agency exemption" from the ABC test. They object because they are carved out of this exemption and argue there is no rational basis for doing so. In this Note, we point out a key rationale for the distinctions drawn in the referral agency exemption that is clear on the face of the statute but has not received attention: the exemption’s carve-out, which excludes services provided in certain high hazard industries like the ones in which plaintiffs operate, is rationally related to one of AB 5’s stated purposes, namely, to protect workers when they are injured on the job from the harm of misclassification. This presents a straightforward path for the en banc Court to affirm dismissal of plaintiffs' equal protection claim.Seeding Equity: A New Community-Based Model of Public Investment in Worker Cooperatives for Excluded Workers
REPORT (December 2023)
In 2021, California launched Social Entrepreneurs for Economic Development (SEED), an innovative grant program that funded a demonstration project on worker cooperative development, spearheaded by community-based organizations (CBOs) that organize excluded workers (individuals who cannot access stable, gainful employment relationships and whose economic opportunities are severely constrained due to their immigration status or other significant barriers to employment). Through an impressive collaboration between these CBOs (CLEAN Carwash Worker Center, Cooperacion Santa Ana, Pilipino Workers Center of Southern California, and United Taxi Workers of San Diego), and experts in cooperative development (Democracy at Work Institute and L.A. Co-op Lab), SEED propelled the development of worker cooperatives in four low-wage industries: carwash, child care, homecare, and taxicab. The model built through SEED has already taken root as a compelling prototype of public investment in worker cooperatives. In this report, we identify and examine SEED’s key components and highlight some emerging indicators, both quantitative and qualitative, of the model’s considerable potential to raise wages, improve working conditions, and promote worker self-determination.The Importance of the Revival of California’s Industrial Welfare Commission: The Promise and Future of Tripartite Sectoral Negotiated Rulemaking in California and Beyond
LAW & POLICY NOTE (September 2023)
The old common-sense idea that representatives of business, labor, and the public should sit down together to negotiate over industry labor standards is new again. The California budget bill in July 2023 revived the Industrial Welfare Commission (IWC) from an almost 20-year quiescence due to funding cuts in the early 2000s. The IWC is a 110-year-old mechanism for setting standards for wages and working conditions through a collaborative process involving representatives of California workers, businesses, and the public. We explain how the IWC works, its importance as an exemplar of effective sectoral bargaining, the relationship between the IWC’s renewed mandate and ongoing disputes over last year’s Fast Food Accountability and Standards (“FAST”) Recovery Act, and what the IWC’s revival could mean for workers, business, and the public alike.State and Locally Funded Grant Programs for Undocumented Workers: What is 8 U.S.C. § 1621 and Why Does it Matter?
LAW & POLICY NOTE (August 2023)
In 2021, California created a groundbreaking grant program, Social Entrepreneurs for Economic Development (SEED), which awarded nonprofit community-based organizations almost $10 million in state funds to provide entrepreneurial training and microgrants to individuals facing substantial barriers to gainful employment due to their immigration status or limited English proficiency. SEED supported individuals in launching or maintaining a small business to address a social problem or meet a community need, as well as the development of worker-owned cooperatives in low-wage industries. The state codified SEED, in order to eliminate even the smallest risk that an anti-immigrant provision of federal welfare law, 8 U.S.C. § 1621, could be used in an attempt to invalidate the program. Section 1621 was passed by Congress in 1996 to restrict the eligibility of undocumented individuals for “state or local public benefits”—and has been the basis of lawsuits attacking state and locally funded initiatives for undocumented individuals. We discuss section 1621, with a focus on how state and local grant programs like SEED for undocumented workers can be shielded against a section 1621 challenge.
CLAW's Latest Events
Understanding the Law & Political Economy of Immigration and Guest Worker Visa Programs | Featuring Daniel Costa, Director of Immigration Law and Policy Research, Economic Policy Institute
October 3, 2024
BJELL Symposium: The Current State and Future of Forced Arbitration
March 21, 2024
Guest Speaker: Marc Pilotin, Region IX Solicitor of Labor, U.S. Department of Labor
February 8, 2024
Colloquium: Contract Theory and Marginalized Workers
October 20, 2023
Insights & Inspiration in the Fight for Worker Justice | Featuring Lorena Gonzalez Fletcher
September 21, 2023
Seeding Equity: A New Community-Based Model of Public Investment in Worker Co-ops for Excluded Workers
March 23, 2023
