Monday, September 6, 2021
It is hard to believe (at least for me), but the official calendar marker for the end of the summer now is upon us. It is a time for smoking pork, backyard barbecues, and enjoying the pool and the beach like a kid. It is time after which we are admonished to stop wearing white (until Memorial Day), according to conservative traditions ignored in the breach by me. It is Labor Day.
According to the U.S. Department of Labor website:
Observed the first Monday in September, Labor Day is an annual celebration of the social and economic achievements of American workers. The holiday is rooted in the late nineteenth century, when labor activists pushed for a federal holiday to recognize the many contributions workers have made to America’s strength, prosperity, and well-being.
That history seems so important to remember today, given significant labor dislocations in the United States since the beginning of 2020. The significant amount of illness and death attributable to COVID-19 is just the beginning of the story. Complex social, economic, and legal factors have combined to make for volatility and dissonance in U.S. labor markets. The U.S. Bureau of Labor Statistics recently released its August 2021 report on the national employment situation, describing trends and supplying relevant data.
The news media has offered ongoing commentary. I was especially drawn to an article published by The Washington Post on Saturday entitled "Why America has 8.4 million unemployed when there are 10 million job openings." Misalignments between the available jobs, on the one hand, and the obtainable, qualified labor, on the other hand, have become apparent. "There is a fundamental mismatch between what industries have the most job openings now and how many unemployed people used to work in that industry pre-pandemic," the article offers. The article also mentions that people are resigning and retiring in larger numbers and earlier than projected, at least in some sectors of the economy. Entrepreneurship also is on the rise.
There has been informal and formal debate about the effect that law has had and may continue to have on our labor markets. The mandatory shutdowns (through lockdown and stay-at-home orders) imposed by state governors in 2020, for example, certainly played a role in separating businesses from their workers. Congressionally approved federal unemployment benefits have been blamed for slower-than-expected returns to work, but as Saturday's Washington Post article notes, "in 22 states that already phased out those benefits, workers didn’t flood back to jobs." A September 1 article in The Wall Street Journal entitled "States That Cut Unemployment Benefits Saw Limited Impact on Job Growth" (behind a paywall) offers similar observations. "Economists who have conducted their own analyses of the government data say the rates of job growth in states that ended and states that maintained the benefits are, from a statistical perspective, about the same."
Both business and law (and the lawyers that serve them) may be part of the solution as much as they are part of the problem. Workplaces are changing and workers are changing. The changes in each may foster changes in the other. A June article in The New York Times notes the role of pay and benefits in the return-to-work equation, citing "the proliferation of low-paid jobs with few prospects for advancement and too little income to cover essential expenses like housing, food and health care." Others note that, to attract qualified, desirable candidates, businesses will have to focus core attention not only on worker pay and benefits, but also on other terms and conditions of employment, including the possibility of mandating, promoting, or permitting employees to engage in more remote work (whether for the benefit of the employer or the employee--or both). But government also can refocus its efforts to support sustainable business in this changed and changing socio-economic environment. An opinion piece from back in June in The Washington Post addressing impediments to full employment notes that: "[a]ccess to reliable child care remains a significant obstacle. So does the availability of public transit. Workers may continue to worry about risks to their own or their family’s health if they take public-facing jobs . . . ." A May article in The Washington Post also mentions childcare availability and health care risks as factors in the decision of unemployed people to return to work. If employers are not facilitating access to affordable and appropriate child care and transportation and are not voluntarily providing adequate protections from health care risks in the workplace, then legal or regulatory solutions may be useful if we want those businesses to survive. The coming months will be telling as we continue to address the ongoing pandemic and its direct and indirect effects on productivity.
I have always valued work. Years ago, I found a quote (apparently misattributed, with related quotes, to the Buddha) that resonated with me: "Your work is to discover your work and then with all your heart to give yourself to it." Yes. I certainly have done that to great satisfaction. I am fortunate to hold a position that has survived the effects of the pandemic to date. I feel needed and wanted in my workplace. I am lucky and privileged, indeed.
Congress instituted labor day as a national legal holiday on June 28, 1894, following on the adoption of similar municipal ordinances and state legislation. The Department of Labor's website notes this and concludes its history of the national holiday by highlighting the role that workers have played in the history of the United States.
American labor has raised the nation’s standard of living and contributed to the greatest production the world has ever known and the labor movement has brought us closer to the realization of our traditional ideals of economic and political democracy. It is appropriate, therefore, that the nation pays tribute on Labor Day to the creator of so much of the nation's strength, freedom, and leadership – the American worker.
Today, I hope that we can reflect on this rich history and celebrate both these aggregate contributions and our own individual work notwithstanding current uncertainties in our labor markets.