What Have We Learned? The Ones Left Out

Last month, we addressed the New Deal. This legislature is often remembered as the moment America decided workers deserved protection, but hidden inside the architecture Frances Perkins helped build was a devastating compromise. This was a trap door through which millions of workers fell through. Agricultural and domestic, disproportionately Black and immigrant workers, were excluded from the very laws meant to protect them. Nearly one hundred years later, the consequences of that exclusion still shape who is protected, who is vulnerable, and who is left behind. 

This is the story of those workers and of two movements, born half a century apart, that set on to reclaim what had been denied. The first began in a grape field in California in 1965. The second began in a New York living room nearly 40 years later. Each sought to force the excluded back into the protections and dignity of American labor law. Neither fight is over.

How America Built Exclusion into Labor Law

The National Labor Relations Act of 1935 gave most American workers the right to organize, bargain collectively, and strike. But, its definition of "employee" explicitly excluded agricultural and domestic workers. Three years later, the Fair Labor Standards Act of 1938 applied the same logic to minimum wage and overtime protections.

Who worked in those jobs in 1935? In the South, overwhelmingly Black Americans. Nationally it was disproportionately Black, female and immigrants. 

Was that exclusion accidental? To understand why it happened, you have to understand two things about 1935.

The first was who held the power in Congress. The South was effectively a one-party region. Southern Democrats won election after election, held their seats for decades, and through the seniority system, came to dominate the most important committees in Congress.  Men such as Pat Harrison of Mississippi (chair of Senate Finance) and Walter George of Georgia, could effectively block any bill Roosevelt wanted. Roosevelt knew it. In 1934, he told an NAACP delegation that he could not support anti-lynching legislation because "the Southerners by reason of the seniority rule in Congress are chairman or occupy strategic places on most of the Senate and House committees. If I come out for the anti-lynching bill now, they will block every bill I ask Congress to pass" (quoted in Perea, Ohio State Law Journal, 2011).

The second was what the Southern economy still depended on. The plantation system had not disappeared after the Civil War. It had simply been rebuilt through sharecropping, tenant farming, and domestic service. These jobs paid little, offered no social nor professional mobility, and kept Black Southerners legally free but economically trapped. 

By 1930, more than half of all Black Americans still lived in the South. Roughly two-thirds of employed Black women worked as domestic servants (History of Social Security in the United States, Wikipedia, summarizing the academic literature). Extending federal labor protections – minimum wages, collective bargaining rights, old-age pensions – to those jobs would have threatened both the low-wage labor system and the racial hierarchy on which the Southern economy depended. Southern committee chairs had no intention of allowing that to happen.

So the New Deal was written to avoid the confrontation. Agricultural and domestic workers were carved out. 

The official reason offered by the Social Security Board (and still defended by some historians today) was administrative: farms and private households did not have formal payroll systems, making it difficult to collect taxes and administer benefits (Larry DeWitt, SSA historian, 2010). But the effect was obvious. During the 1935 hearings, the NAACP pointed out of this that roughly 65% of Black workers nationally and as many as 80% in parts of the South, would be left out of  the new system. The NAACP was quite explicit about this during the 1935 congressional hearings, and called the Social Security Act of 1935 "a sieve with holes just big enough for the majority of Negroes to fall through".

Historians still debate whether the primary motive was racial exclusion, political compromise, administrative convenience, or a combination of all. The outcome, however, was understood by everyone involved, including the NAACP witnesses who warned them.. 

Ninety years later, most of that exclusion is still there. Under federal law today, agricultural workers are still excluded from the protections afforded by the NLRA. Only 14 states provide farmworkers with any collective bargaining rights. They earn roughly 40% less than comparable non-agricultural workers. Domestic workers (~2 million strong) are still excluded from most federal workplace protections.

What Perkins built changed America. But it did not include everyone.

The Strike That Nobody Started Alone

On September 8, 1965, more than 1,000 Filipino farmworkers in Delano, California, walked off vineyards of table grape growers. The strike was organized by the Agricultural Workers Organizing Committee, led by Larry Itliong and Philip Vera Cruz.

Eight days later, on September 16, the National Farm Workers Association (NFWA) voted to join the strike. The NFWA had been built over the previous three years by Dolores Huerta, Gilbert Padilla, and Cesar Chavez, with Huerta running the legislative and contract-negotiation side and Padilla leading much of the field organizing. The merger of the two groups produced what would eventually become the United Farm Workers (UFW).

Why a boycott instead of a traditional strike? Because the workers had no legally enforcable right to strike. The NLRA did not cover them and the growers understood that, and had for decades. Huerta's insight was to shift the leverage: if the law would not protect workers, consumers could be mobilized to do what the government would not. Smart!

From 1966 to 1970, the boycott spread through grocery stores in the U.S. and Canada. Huerta coordinated the East Coast effort from New York, building a broad coalition that included feminists, religious groups, students, and other unions (such as the American Postal Workers Union). In 1970, California growers signed the first collective bargaining agreement in the history of American agriculture and Huerta served as the lead negotiator.

Five years later, after another grape boycott and sustained pressure from the UFW, California passed the Agricultural Labor Relations Act of 1975. This was the first and still the one o state law granting farmworkers organizing rights resembling those under the NLRA.

That law was not granted but forced after a decade of organizing workers Congress had already decided not to protect. 

Dolores Huerta turned 96 in 2026. She is still organizing!

The Living Rooms and the Bill of Rights

The domestic worker story took longer to find its movement, in part because the work itself is hidden. Farm fields are visible. A nanny in a private apartment is not so.

In the late 1990s, Ai-jen Poo was running a late-night crisis hotline at the New York Asian Women's Shelter. The women calling her had narrow options for employment - restaurants, nail salons, garment shops, domestic work. Many had come from Hong Kong, where domestic workers had a union and a standard contract. They wanted to know why nothing remotely similar existed in the U.S. Poo did not have a good answer so she started organizing.

In 2007, Domestic Workers United, which she helped build, co-founded the National Domestic Workers Alliance (NDWA). In 2010, the NDWA won passage of the New York Domestic Workers Bill of Rights, the first such law in the United States. It established overtime, rest days, and protection from harassment and discrimination for domestic workers in the state.

Today, 12 states, the District of Columbia, and two major cities have some version of a domestic workers' bill of rights. New Jersey and Rhode Island passed theirs in 2024. A federal version, introduced by Representative Pramila Jayapal and then-Senator Kamala Harris in 2019, has not passed.

The pattern is now clear. Federal law leaves a gap. Organizers build state and local frameworks that fill it, unevenly. Some workers get covered. Most do not.

A 2021 NDWA survey gives the shape of the problem - only 16% of domestic workers have a written agreement with their employer. 81% receive no pay if an employer cancels with less than three days' notice. 76% receive no pay even if the employer cancels after the worker has already arrived for the shift.

If any other category of American workers had statistics like these, it would be treated as a crisis. For domestic workers, it is treated as a market condition.

The New Exclusion

Every generation of American labor policy has produced its own category of worker that the law decided not to count.

In 1935, it was agricultural and domestic workers. In 1947, the Taft-Hartley Act excluded supervisors from the NLRA's definition of "employee," a change Congress made specifically to reverse Packard Motor Car Co. v. NLRB, a Supreme Court decision from earlier that same year that had granted supervisors the right to organize. 

In the 1970s and 1980s, the temporary staffing industry grew at roughly 11% per year while overall nonfarm employment grew at only 2%, and "employee leasing" arrangements distinguished a new category of worker out of the direct employment relationship entirely. Sociologist Erin Hatton has documented how staffing firms during this period actively marketed a shift in thinking, encouraging companies to treat labor as a liability to be minimized rather than an asset to be developed. 

Today about 16% of the U.S. workforce is doing some form of independent contract, freelance, or platform-based work, depending on how it gets measured (Bureau of Labor Statistics contingent worker data, note that BLS has been inconsistent in measuring this population and the figure varies widely depending on the methodology used).

Platform workers (including the drivers, couriers, shoppers, and other “taskers” whose employer is an algorithm) occupy the structural position of modernity created by the 1935 exclusions. They are performing work that is undeniably work. They are, however, not classified as employees, so most federal labor protections do not cover them.

California attempted to change this in 2019 with Assembly Bill 5, which codified a three-part "ABC test" presuming that workers are employees unless the hiring entity can prove otherwise (California Labor and Workforce Development Agency). Uber, Lyft, DoorDash, and Instacart responded by spending more than $200 million on Proposition 22, which carved out their workers out of AB5 entirely. The California Supreme Court upheld Prop 22 in July 2024.

That is the most expensive exclusion ever purchased! The Southern Democrats of 1935 got theirs through legislative design; gig economy firms paid for theirs directly.

The mechanism is very consistent: a category of work is defined as not-quite-employment. The workers in that category are disproportionately immigrants, women, and people of color. They are real, the work is real, the profit from their work is real. The protections are not really.

What Other Countries Are Doing

Spain has gone further than any other major economy in addressing this. In May 2021, it passed the Ley Rider, which created a legal presumption that food delivery platform workers are employees and required platforms to disclose to workers' representatives how their algorithms make decisions about hiring, pay, and firing.

The results have been mixed but quite instructive. Just Eat began directly employing its Spanish couriers and signed a collective bargaining agreement with unions. Deliveroo exited the Spanish market altogether. Glovo resisted compliance for nearly four years. In 2025, the Spanish social security administration demanded €450 million in back contributions and fines from Glovo.

At the EU level, Directive 2024/2831 (the Platform Work Directive) took effect on December 1, 2024. Member states must transpose it into national law by December 2, 2026. The directive covers about 28 million platform workers across the EU and establishes a rebuttable presumption of employment where platforms exercise direction and control.

The directive is not a finished instrument. Its effectiveness will depend on how each member state chooses to implement it, and platforms are already lobbying for narrow interpretations. But the EU has at least made a threshold decision: 28 million workers fall within the scope of labor protections. The U.S. at the federal level has not.

This is worth pausing on, rather than turning into a simple indictment of U.S. policy. Federal deadlock in the U.S. is typical. What is unusual is where labor policy is now being made. Increasingly, it is being written at the state, city, and ballot-initiative level. This is both a symptom of the federal gap and a partial remedy to it. Perkins followed a similar path, building reforms in New York between 1911 to 1933 before scaling them to the federal level. 

Your Sphere of Influence

The April post framed HR leadership as a "Perkins move" setting standards before legislation makes them required. That is a useful frame for the included but insufficient for those excluded.

The harder question this month is about the workers who are inside your organization but outside its employment protections: contractors, temporary workers through staffing agencies, warehouse crews supplied by third parties, contract security, contract cleaning, contract food service. People in your building every day whose W-2 is issued by someone else, or who receive a 1099 and no W-2 at all.

Dolores Huerta organized people whose employers said they were not employees. Ai-jen Poo organized people whose employers said they were not employers. Both movements began by rejecting the classification and asking a simpler question: who does the work, who benefits from the work, and what is owed to whom?

What These Organizers Did	What You Might Ask in Your Organization
Huerta and Itliong made a legally invisible workforce visible through the grape boycott: consumers saw what federal law refused to see	Map your extended workforce. How many people do work that benefits your company but are employed by someone else, or classified as contractors? Most HR systems cannot answer this (because typically contract work is managed through Procurement)
The NDWA built a standard written contract for domestic workers as a tool of practice before it existed in law	Audit the written terms you offer to contractors and staffing-agency workers. Are they comparable to employee terms on the dimensions that matter most: pay transparency, scheduling stability, safety standards, accountability when something goes wrong?
The UFW used the boycott to impose accountability across a supply chain in which no single employer felt responsible	Identify the one upstream or downstream relationship in your supply chain with the highest worker-protection risk. Decide what standard you will hold that partner to and what happens if they fail it.
The NDWA created Alia - a portable benefits platform for domestic workers whose multiple employers each contributed small amounts	Pilot a portable benefits contribution for the contractors and freelancers you rely on. This is being tried at scale by Washington State's rideshare driver benefits program and several companies.
Both movements treated workers' testimony as primary data before regulators did	Ask contingent workers directly what their experience of working with your company is. Not a vendor-administered survey but rather directly. What you learn might be uncomfortable AND useful.

What This Is Really About

Every time American labor policy has meaningfully improved, it has done so primarily for those who were already within reach of protections. Perkins raised the floor for covered workers. The floor is still missing for those who were carved out. The pattern held for almost a century. New categories. Same mechanisms. 

When you learn that platform companies "cannot" operate without the contractor classification, or that agricultural employers "cannot" afford to pay overtime, or that domestic work "cannot" be standardized because every household is different, you are hearing an argument that has been made consistently since 1935. Variations of it have been bade, and in every era, those arguments have eventually weakened – but only in the places where organizers did the slower, harder work: showing up, documenting the reality, and making the invisible visible.

The work is not unfinished. Huerta, at 96, is still doing it. Poo, at 52, is still doing it. There is ample room in the work. The question is no longer whether the pattern exists. It is what you choose to do about it.

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This is the fifth post in our 2026 series "What Have We Learned?" Subscribe to receive monthly explorations of how America has defined what employers and employees owe each other, and what you can do about it.