Andrew Stern, former president of the Service Employees International Union, one of the largest and most powerful labor organizations in the nation, is calling for states to be allowed to request waivers from federal labor and workplace laws to allow them find new ways to represent workers’ interests.

The status quo is not helping them workers and is leading to the slow death of the union movement, he said.

“It’s time for a new path, one that takes advantage of one of the most successful public-policy innovations of the past 50 years: waivers from federal law to allow state experimentation,” Stern said in an article for the winter issue of quarterly policy journal National Affairs. The article was co-written with Eli Lehrer, president of the conservative-leaning think tank, R Street.

In an email to the Washington Examiner, Stern said the idea for the article came from discussions “amongst leaders in the labor movement and inside of SEIU” regarding how to reform labor laws. “My interest was piqued by watching so many states use Medicaid waivers to promote innovation, collaboration and finding better results for stakeholders. It is the Medicaid framework, and Congress and states’ familiarity with the process that makes it attractive avenue for investigation,” he said.

In the article, Stern calls for states to be allowed to request waivers from “at minimum:” The National Labor Relations Act, the Fair Labor Standards Act, the Labor Management Reporting and Disclosure Act, and the Employee Retirement Income Security Act — most of the major federal laws covering labor issues.

“Partisans across the political spectrum should agree that all real labor-law ‘progress,’ however one defines the term, has come from the state level. Moreover, nearly all of this progress has been facilitated by an approach that allows states to promulgate their own laws and procedures,” Stern and Lehrer write.

The idea is highly unusual from a labor leader. Usually, labor leaders argue the laws should be zealously enforced without exception. For one to suggest otherwise would be akin to the president of the conservative Heritage Foundation endorsing experimentation that would allow for higher taxes.

Stern, however, has always been keen to push for experimentation. In 2005, he led the SEIU out of the AFL-CIO, the nation’s largest labor federation, to form a rival federation called Change to Win. He argued at the time that the AFL-CIO was not doing enough to innovate. Stern stepped down as SEIU’s president in 2010.

“The idea for the article was his,” Lehrer told the Washington Examiner. He said they met through mutual friends while working on issues related to the “gig economy” — companies such as Lyft and Uber that let people work part time as contractors.

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In the article, Stern and Lehrer argue waivers would allow for new models of labor representation to flourish. “A system to allow state waivers from major labor laws similarly could give every interest group a chance to try bold reforms the federal framework doesn’t currently allow. If properly structured, such waivers could facilitate experiments with new business and revenue models for labor organizations, provide new opportunities for entrepreneurs, create new jobs, and expand prosperity. No one will like everything waivers might make possible, but everyone could find something to like. And in the end, American workers and employers could both be better off,” they argue.

For example, unions could contract out their services, offering to represent workers without a formal collective bargaining contract. Instead, they would act in the same manner as lawyers representing clients.

Many on the Left see no point in allowing this kind of flexibility, arguing it would merely allow some states to gut federal laws entirely. “As seductive and profitable as these big idea projects are for Stern and others, they seem ridiculous in the current climate and take attention away from active organizing,” said a writer for the liberal, labor-oriented magazine In These Times.

Stern responded at length to this criticism in his email to the Examiner: “My concern is that the labor movement has reach its lowest level of density in the private sector in modern history, and is about to face changes as a result of court cases for public workers. In addition the passage of right-to-work laws, and elimination of rights for public-sector workers in Northern states, not just Texas, on a regular basis shows that the totality of the current system is more and more regressive for workers.

“The question for any institution in the 21st century is are they preservationists or futurists. Change is inevitable, it’s progress that’s optional. Workers organizations face similar challenges to business as technology, the change in the ways we work, the end of the one job in a lifetime economy and new forms of platform, freelance, gig, and independent contractor employment and models continue to grow.

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“The question is not can we go backwards to a time in history no longer relevant, but can we construct a future the gives workers voice and security, allows businesses to grow, meets new desires for worker flexibility, and everyone to share in the success of a successful employer.

“Medicaid waivers have provided opportunities for experimentation, and obviously different states will construct different experiments depending on their culture, leadership, and constituents. There should be protections to ensure that the intentions of the law are honored even as states try different processes to meet them. This is not about regressive or progressive, it’s about workers, economic growth and security into the future, and clearly in the areas of the labor law we could use some innovation to laws over 50 years old.”

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