Digital Labor

Heather Whitney


Heather Whitney is a Lecturer in Law and Bigelow Teaching Fellow at the University of Chicago Law School. She is also a faculty affiliate at Harvard’s Berkman Center for Internet & Society.

Heather works at the intersection of innovation with a variety of laws and policies concerning employment and labor, private associations, intellectual property, and corporate form and governance. Her current project looks at the relationship between company-supported affiliation groups and email lists, company unions, and traditional unionization.

Heather earned a JD from Harvard Law School, magna cum laude, and a BA in Philosophy, from UCLA, summa cum laude. Prior to attending Harvard, she worked on Google’s Global Ethics and Compliance team. She’s also spent time at the Federal Trade Commission, Facebook, Keker & Van Nest, and Jenner & Block’s Washington D.C. office. Immediately prior to becoming a Bigelow Fellow, she clerked for the Honorable Chief Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit. She was also a teaching fellow (twice) for CopyrightX, a free online copyright course offered by Harvard Law School on the edX platform.

Alternative Forms of Labor Organizations: Union Substitutes or Something Else?
Starting with the NLRA, labor law was thought to broadly control the employer-employee relationship. And, for quite some time now, labor scholars have argued it has failed to control that relationship well. Those on the right often find exclusive representation coercive and pre-bargaining agreements not only coercive but unlawful. Some on the left argue that labor law fails to sufficiently protect organizing and has generally “ossified,” leading to a precipice drop in union density. More recently, some have examined how, in the face of a failed NLRA regime, workers and unions have used alternative employment statutes, like the FLSA and Title VII, for protection.

However, scholars have generally failed to look at whether alternative forms of labor organizations are being developed. In other words, possible substitutes for traditional unions. It is these organizations I am interested in.

In particular, given the evolving nature of the relationship between companies and workers (e.g., the rise of complex supply chains, “fissured” workplaces, and an increasing number of freelancers and independent contractors, along with the simultaneous rise of “conscious capitalism” and corporations with constitutional rights) do we see an evolving nature of labor organizations as well? If so, do these new organizations function like traditional unions or do they provide different benefits, and come with different risks.

I put forward three examples of alternative organizations for discussion:

1. Company-specific affiliation groups. The Black Googler Network and Gayglers being two examples at Google.

2. Organizations like the Freelancer’s Union.

3. Co-working spaces like the Makeshift Society.

After sketching some of the roles these organizations may play for workers, I’ll touch on how our current labor laws do and do not regulate them. In particular, I’ll focus on the ban on company support of labor organizations and the separate issue of minority unionism.

In the end the question is what these different organizations are doing, whether they are filling roles traditional unions are not (or cannot) for some workers, and how the law should regulate them in the future. I look forward to talking about this with you and, I hope, hearing your thoughts.