Jennifer Gordon, Suburban Sweatshops

Every evening on the news we hear about another proposed law aiming at some sort of social change, whether it concerns stem cell research, crime control, or healthcare. But new laws are just one means of enacting lasting transformation. In fact, law alone may be one of the worst ways. Picking apart her own legal work for the past decade, Jennifer Gordon offers a fascinating extended case study of the limits—and possibilities—of the law compared to well-organized collective bargaining. Juggling two roles—as a player in efforts to help immigrant workers and as an astute observer of the hurdles they face—she tells her story with intelligence and subtlety.

Gordon founded the Workplace Project in Hempstead, a Long Island suburb, shortly after she graduated from Harvard Law School in 1992. Setting up shop in the offices of a social services agency, Gordon provided legal services to domestic workers, busboys, and other laborers injured on the job or underpaid—often unpaid—for their services. Her storefront office, over time, provided more than just law help, becoming a base from which Latino immigrant laborers could collectively advocate for better job conditions. 

Gordon quickly learned from her work that low-to-no-wage jobs don’t discriminate: they are not limited to cities nor to any one industry. The suburban sweatshop is strikingly common; suburbs now have their own garment factories, restaurant kitchens staffed by low-wage immigrants, and homes and lawns tended to by small armies of immigrants, for whom minimum wage, overtime, and occupational safety laws often are not enforced.

Early on Gordon recognized that the law alone could not remedy such widespread abuse. The economics and politics of low-wage work result in a largely unregulated situation, too often not subject to state policing. What good are laws on the books when enforcement is non-existent and the penalties, even when imposed on violators, are so mild as to be toothless? Gordon writes that Harvard Law School simply had not trained her to “use law in ways [her] legal education never anticipated in order to create change in a lawless setting.”

Her dilemma landed her headfirst in the decades-long academic debate over whether broad humanistic goals are best achieved from a rights-based legal framework or by mass movements for social change. The first way involves establishing and defending the rights of individuals, while the second involves organizing larger communities according to common interests. Sometimes the concept that one has rights can galvanize efforts toward social change: as Gordon points out, the rhetoric of inherent rights helped to mobilize both the abolition and the civil rights movements. But individual rights and community interests often clash. Gordon offers the example of a busboy who visited the Workplace Project’s legal clinic seeking payment of back wages after years of working for less than minimum wage. Other workers at the restaurant refused to come forward. The legal clinic took the busboy’s case and negotiated a $5,000 settlement agreement with the restaurant owner. The agreement included a confidentiality provision, however, forbidding the busboy or the Workplace Project from telling anyone, including other workers at the restaurant, about the settlement. A victory that might have sparked a collective movement to improve the situation for all of the restaurant’s workers instead became a limited victory for one person.

Gordon points to other difficulties with using law as the primary mechanism for effecting change. Law only provides remedies after a violation has occurred—and given the pace at which the courts move, only long after the violation. Law is rarely preventative: because it operates largely based on precedent, it principally preserves the status quo. In the realm of labor, the law protects the right to a minimum wage but not necessarily a fair wage.

These limitations slowly led the Workplace Project to excise legal services from its day-to-day strategy for effecting social change. Gordon writes, “We used to think we knew what to do about sweatshops. Legislate. Enforce the law. Unionize. But the solutions that are most familiar were crafted for another time, for the rules and rhythms of mass production.” The labor movement’s successes from the New Deal and post-war era— the Fair Labor Standards Act, the Occupational Safety and Health Act, and the National Labor Relations Act—have little real import to immigrant labor’s contemporary working conditions.

The Workplace Project shifted its focus from enforcing existing law to what is broadly termed organizing. Through organizing, the Workplace Project achieved one of its early legislative victories to which Gordon devotes a significant portion of her book: New York’s 1997 Unpaid Wage Prohibition Act. The Act increased financial and criminal penalties for willful violations of labor laws, required extensive enforcement of such laws from the state’s Department of Labor, and created additional incentives for employers to follow already-existing labor laws. Gordon relates how over an eighteen-month period beginning in January 1996, the Workplace Project and two other workers’ centers in New York City developed and lobbied for passage of the Act, using media resources and partnerships with industry. The Act had real impact on the power of low-wage workers to exert pressure on their employers. Gordon relates, for example, how the prospect of a 200-percent civil penalty on top of years of owed back wages caused the New York City greengrocer industry to allow unionization.

Nearly as significant as the results of the new law is how the Workplace Project’s democratic organizational structure and focus on self-determination helped pass the Act. Often the people most affected by legislation have little role in crafting it; generally, service providers or the media report problems, and any solutions are filtered through the concerns of lobbyists and politicians. “By contrast,” writes Gordon, in this case “the affected people planned and executed the campaign.” The Act’s provisions were based on the needs and experiences of immigrant workers, and the campaign was both legitimated and deemed media-worthy because it had been led by the membership of three workers’ centers. Their participation also helped convince state legislators that the Act was worth fighting for.

For all of Gordon’s concern about the possible incompatibilities between law and organizing, she doesn’t get bogged down in the usually relentless academic debate. “For at least the last quarter of the twentieth century, activist lawyers and legal scholarship have been plagued by questions about whether lawyers inevitably dominate and derail collective action, and whether law has much if anything to offer to social change,” she writes. She concludes that ceaseless handwringing is futile. Instead, she directs her reader to the real question: “what kind of lawyers, in what kind of relationships with community groups or movements, using what sorts of strategies, make sense in which contexts?” Gordon warns from the start that her book won’t yield any miraculous solutions to the problems facing immigrant labor, but she comes through with something almost as good: direction. She demurs that the Workplace Project is not a “model” for organizers or lawyers generally. But, in fact, it is. Gordon’s work provides a much-needed example of how community organizing and legal work can rely on each other. It is an important story for anyone interested in social change.

CAMBRIDGE: HARVARD UNIVERSITY PRESS. 384 PP. PRICE $27.95, HARDCOVER.