We Need To Strengthen The Public In The US Public Sector

Many people have given up on the idea of government as an instrument of progressive social change, especially the federal government.  They think that the federal government is dominating and distorting economic activity and, more often than not, believe that the cause is a bloated, highly paid, and selfish federal workforce.

In fact, federal programs are increasingly being delivered by private contractors.  As a result, private employees doing work for the federal government now outnumber the federal workforce.  Moreover, in most cases, they are paid far more than the public employees they replace.  And, as more federal work is carried out under the direction of profit-seeking firms, there is good reason to believe that programs are reshaped to ensure that it is the private rather than public interest that is best served.

The declining share of federal workers

As a Public Goods Post explains:

the federal government workforce has not increased in absolute numbers in half a century. Not only is it the same size now as it was in the 1960s, since the 1980s it has shrunk. There are actually fewer government employees now than there were under Reagan even though the population has grown by over 30%.

As a consequence, as we see below, the size of the federal workforce as a share of the total civilian non-farm workforce has steadily fallen.  It is now less than 2 percent of the total.

The growth in private contractors

While the size of federal workforce has remained relatively unchanged for decades, the same is not true for real federal government spending on consumption and investment, as seen in the figure below.

So, how has the federal government been able to boost its activity with a relatively unchanged workforce?  The answer is an explosion in the use of private contractors.

According to the Public Goods Post,

the federal contractor workforce dwarfs the federal employee workforce nearly four-fold.

This massive third-party workforce has been mostly hidden from public view, kept intentionally out of sight by corporations and their lobbyists who have the most to gain, as well as by elected officials who want to claim that they are not growing government. Moreover, federal corporate contractors operate behind a shield of secrecy, enabled by their de facto exemption from the Freedom of Information Act (FOIA), and ensuring that they can operate without public scrutiny.

Fattening the corporate sector at public expense

This outsourcing of federal activities to private firms is likely an important reason for people’s dissatisfaction with government: they are far more expensive and their goal is profit not service.

A Project on Government Oversight study examined compensation paid to federal and private sector employees, as well as annual billing rates for contractor employees across 35 occupational classifications covering over 550 service activities.

It found, among other things, that:

Federal government employees were less expensive than contractors in 33 of the 35 occupational classifications reviewed.

Private sector compensation was lower than contractor billing rates in all 35 occupational classifications we reviewed.

The federal government approves service contract billing rates—deemed fair and reasonable—that pay contractors 1.83 times more than the government pays federal employees in total compensation, and more than 2 times the total compensation paid in the private sector for comparable services.

Here are some examples of the compensation bias favoring private contractors:

As bad as it is, this compensation bias is far from the whole story.  The fact is that public regulators incur significant costs trying to develop contracts that are supposed to ensure acceptable private contractor outcomes as well as actually monitoring performance.  And shortfalls in performance, an all too frequent outcome, require either additional federal expenditures beyond those initially stipulated in the contract or a lowering of public standards.

Moreover, a recent review of “the extensive global empirical evidence on the relative efficiency of the private versus public sectors” found no evidence:

that there is any systematic difference in efficiency between public and private sector companies, either in services which are subject to outsourcing, such as waste management, or in sectors privatized by sale, such as telecoms. . . .

This picture is further confirmed by examination of nine sectors which are most often subject to privatization, outsourcing and PPPs – buses, electricity, healthcare, ports, prisons, rail, telecoms, waste management and water – and the same results hold true in each sector: the evidence does not show any superior efficiency by private companies.

The challenge ahead

A report summarizing the discussions and outcomes of an October 2017 conference titled “Restoring Public Control of Public Goods” began as follows:

Over the past thirty-five years, government in the United States has been vilified and vitiated through a movement designed to de-legitimize government in the eyes of the public, to reduce government’s capacity to operate, and to replace that capacity with private contractors and other forms of privatization. . . .

We now are left with:

• An increasingly hollowed-out, de-moralized, de-professionalized, and devalued government;
• A hidden and growing “shadow government” of corporate contractors;
• An array of expensive false economies–since, in fact, contracting out regularly costs taxpayers more than direct government provision of services;
• Public goods that are so invisible as to be under-valued, and are therefore underfunded or struck from the budget;
• Counter-productive systems of performance measurement that create further harmful (if sometimes unintended) consequences;
• A citizenry that under-appreciates, or are unaware, of the public goods they receive.

The private sector has been quietly and efficiently winning its war to control and profit from public sector activities.  One can only hope that the recent interest in socialism will encourage a renewed popular commitment to work with public sector workers to resist this war on the public and build a new, more accountable, not to mentioned well-financed, public sector.

The Law Versus Worker Rights

Organizing a union is no easy task in the United States.  Although organizing a union is supposed to be a protected right, businesses regularly fire union supporters knowing that they face minimal punishment even if found guilty for their actions.  In fact, the rights of all workers, regardless of their interest in unionization, are being whittled down. Simply put, US law doesn’t work for workers.

Moshe Z. Marvit, writing in the newspaper In These Times, provides a recent example of the ongoing legal attack on union rights, in this case those of unionized janitors.  As he explains, the National Labor Relations Board, using a provision of the 1947 Taft-Hartley Act designed to weaken labor solidarity:

ruled [in October 2018] that janitors in San Francisco violated the law when they picketed in front of their workplace to win higher wages, better working conditions and freedom from sexual harassment in their workplace.

The provision in question is one that prohibits workers from engaging in actions against a so-called “secondary” employer.  The provision makes it illegal for workers to organize boycotts or pickets directed against an employer with which the union does not have a dispute in order to get that firm to pressure the union’s employer to settle its dispute with the union.

The NLRB’s ruling dramatically stretches the meaning of this provision, in that the San Francisco janitors were actually engaged in workplace actions against an employer that had significant influence over their terms of employment.  However, Board members were able to justify their ruling thanks to the complexities generated by the increasingly common corporate strategy of subcontracting.

In this case, the janitors were employed by Ortiz Janitorial Services, which was in turn subcontracted by Preferred Building Services, to work in the building of yet a third company. An administrative law judge had previously ruled that Preferred Building Services had meaninful control over the employment terms of the janitors hired by Ortiz Janitorial Services.

More specifically, the judge found “that Preferred Building Services was involved in the hiring, firing, disciplining, supervision, direction of work, and other terms and conditions of the janitors’ employment with Ortiz Janitorial Services.” That made Ortiz and Preferred joint employers of the janitors, and the worker’s actions legal.  Undeterred, the NLRB simply rejected the administrative law judge’s ruling, declaring instead that the janitors worked only for Ortiz which made the worker’s actions, which were also aimed at Preferred, illegal.

As Marvit summarizes:

The NLRB’s recent case restricting the picketing rights of subcontractors, temps and other workers who do not have a single direct employment relationship is a further sign that the labor board will continue limiting its joint employer doctrine. This will make it more difficult or even impossible for many workers to have any meaningful voice in the workplace. But the case also highlights some of the core problems of labor law as it currently exists. By being included under the NLRA, workers lose basic rights that all other Americans enjoy.

Given how important the use of subcontracted labor has become, it should surprise no one that Trump’s appointees to the National Labor Relations Board are actively working to tighten the standard under which workers can claim to face, and organize against, a joint employer.

But the attack on worker rights is not limited to efforts to weaken union power.  The Supreme Court, in a 5-4 vote in May, ruled in Epic Systems Corp v. Lewis, that employers can include a clause in their employment contract requiring nonunion workers to arbitrate their disputes individually, a ruling that eliminates the ability of workers to sue a company for workplace violations or use collective actions such as class action suits. The ruling resolved three separate cases–Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA–that were argued together in front of the Court on the same day because they all raised the same basic issue.

Marvit explains what led to Lewis’s decision to sue Epic Systems:

On April 2, 2014, Jacob Lewis, who was a technical writer for Epic Systems, received an email from his employer with a document titled “Mutual Arbitration Agreement Regarding Wages and Hours.” The document stated that the employee and the employer waive their rights to go to court and instead agreed to take all wage and hour claims to arbitration. Furthermore, unlike in court, the employee agreed that any arbitration would be one-on-one. This “agreement” did not provide any opportunity to negotiate, and it had no place to sign or refuse to sign. Instead, it stated, “I understand that if I continue to work at Epic, I will be deemed to have accepted this Agreement.” The workers had two choices: immediately quit or accept the agreement. . . .

When Lewis tried to take Epic Systems to court for misclassifying him and his fellow workers as independent contractors and depriving them of overtime pay, he realized that by opening the email and continuing to work, he waved his right to bring a collective action or go to court.

As the Court saw it, the case pitted the Federal Arbitration Act against the National Labor Relations Act.  The former established a legal foundation for using one-on-one arbitration to settle disputes while the latter gives workers the right to work together for “mutual aid and protection.” The Court’s ruling priviledged arbitration.

Jane McAlevey, writing before the Supreme Court combined the cases and decided Epic Systems Corp v. Lewis, highlights the likely anti-worker consequences of the Court’s decision:

As for loud liberal voices — union and nonunion — that declare unions as a thing of the past, the forthcoming SCOTUS ruling on NLRB v Murphy Oil will prove most of the nonunion “innovations” moot. Murphy Oil is a complicated legal case that boils down to removing what are called the Section 7 protections under the National Labor Relations Act, and preventing class action lawsuits.

Murphy Oil blows a hole through the legal safeguards that non-union workers have enjoyed for decades, eviscerating much of the tactical repertoire of so-called Alt Labor, such as class-action wage-theft cases, and workers participating in protests called by nonunion community groups in front of their workplaces. The timing is horrific and uncanny: As women are finally finding their voices about sexual harassment at work, mostly in nonunion workplaces (as the majority are), Murphy Oil will prevent class action sexual harassment lawsuits.

The Epic Systems decision is a big deal, since there is a growing and already sizeable use of mandatory arbitration by employers.  A study by the Economic Policy Institute found that:

• More than half—53.9 percent—of nonunion private-sector employers have mandatory arbitration procedures. Among companies with 1,000 or more employees, 65.1 percent have mandatory arbitration procedures.
• Among private-sector nonunion employees, 56.2 percent are subject to mandatory employment arbitration procedures. Extrapolating to the overall workforce, this means that 60.1 million American workers no longer have access to the courts to protect their legal employment rights and instead must go to arbitration.
• Of the employers who require mandatory arbitration, 30.1 percent also include class action waivers in their procedures—meaning that in addition to losing their right to file a lawsuit on their own behalf, employees also lose the right to address widespread rights violations through collective legal action.
• Large employers are more likely than small employers to include class action waivers, so the share of employeesaffected is significantly higher than the share of employers engaging in this practice: of employees subject to mandatory arbitration, 41.1 percent have also waived their right to be part of a class action claim. Overall, this means that 23.1 percent of private-sector nonunion employees, or 24.7 million American workers, no longer have the right to bring a class action claim if their employment rights have been violated.
• Mandatory arbitration is more common in low-wage workplaces. It is also more common in industries that are disproportionately composed of women workers and in industries that are disproportionately composed of African American workers.

The Court’s decision means that workers without unions will have little power. The NLRB’s decision weakens the laws that are supposed to protect union rights. The only effective response to this trend is, as the recent wave of teacher strikes demonstrated, militant, rank and file-led union organizing, with strong community involvement and support.  Hopefully, exposing the class-biased nature of US laws may help encourage this kind of activism.