The Union As Broker of Employment Rights

Stewart Schwab, Cornell Law School


Note: This paper has been published as a chapter in: Cynthia L. Estlund & Michael L. Wachter, eds., Research Handbook on the Economics of Labor and Employment Law 248-72 (Northampton, MA: Edward Elgar, 2012). It may be read onlne at:

Most employment laws give inalienable rights to workers. An individual worker cannot trade the right to $7.25 per hour for a greater pension, for example, nor trade a longer-than-five-year pension-vesting schedule for greater pay. Employees can waive some employee rights, but policymakers are hesitant to allow this for fear the individual employee’s lack of bargaining power or inability to assess the value of rights will mean an alienable right is no right at all. This suggests a role for unions as a broker of rights. A union presumably has greater bargaining power, greater experience than individual employees, and greater ability to avoid cognitive biases, and thus can be expected to make bargains that more greatly benefit workers. This Article explores the role of union as broker of rights. It discusses current examples, including the Supreme Court’s recent 14 Penn Plaza decision that upholds union waiver of workers’ right to litigate discrimination claims, forcing the claims into arbitration. The Article argues that unions should not fear the brokering role while acknowledging the current hesitancy of unions to embrace it, and assesses when and when not policymakers should create employment rights that are inalienable to individual workers but can be brokered by a union representing workers.