Voices from the Margins: Workers Without Unions
Granite State Report special report by staff — research-backed, straight down the fairway, no varnish.
Executive summary
Union coverage in the United States remains the exception, not the rule. In 2024, just 14.3 million workers—about 10% of the workforce—were union members. The rate for workers aged 16–24 is a paltry 4.3%. Older workers are far more likely to be unionized than the youngest ones who occupy the most precarious jobs. That’s the big picture; the real story sits in the margins, where millions of workers—domestic workers, farmworkers, temps, app-based couriers and drivers, incarcerated people, day laborers, and other “nonstandard” workers—either cannot unionize under current law or face structural barriers that reduce unionization to a theoretical right.
This report maps who’s excluded, why that happened, what’s changed in the last two years, and what actually works when traditional unions can’t reach a job site that exists inside a phone, a private home, or behind prison walls. It leans into practical fixes—municipal wage standards, just-cause rules, worker centers, co-ops, portable benefits—and it calls out policy drift where it’s real (joint-employer, misclassification, and retaliation enforcement). No pablum, just evidence.
I. Who’s left out—and why that’s not accidental
The National Labor Relations Act (NLRA), the country’s core private-sector union law, explicitly excludes entire categories: domestic and agricultural workers, supervisors, independent contractors, public-sector workers covered elsewhere, and rail/air workers under a different statute. Those exclusions have racist and anti-radical lineage: domestic and agricultural workers were carved out in 1935 to appease segregationist blocs. In 2025, that carve-out still bites.
Three hard consequences flow from these exclusions:
- Legal right without a remedy: Domestic workers and many gig workers have no protected right to form a union that an employer must recognize or bargain with.
- Retaliation risk: Low-wage, immigrant, and women workers face retaliation when they complain—wage theft, schedule cuts, firings. Under-enforced anti-retaliation rules mean the burden is on the worker to come forward and risk their livelihood.
- Fragmented enforcement: OSHA says temp agencies and host employers are jointly responsible for safety, but gaps persist, and whistleblower capacity is limited compared to the scale of violations.
The result: even as mainstream headlines cover big-ticket strikes, the typical worker without union protection is a caregiver earning ~$16–17/hour, a delivery courier fighting algorithmic deactivation, or a temp assigned to hazardous tasks with unclear training duties.
II. The rules are shifting under workers’ feet
A. Joint employer: a crucial link—cut
The NLRB’s 2023 attempt to expand the joint-employer standard (making lead firms bargain when they control working conditions indirectly) was vacated by a federal judge in March 2024; the Board dropped its appeal that July. That narrowed organizing leverage in franchising and contracting chains where power sits upstream.
B. Organizing standard (Cemex): still on the books
In 2023, the NLRB’s Cemex decision made it easier for unions to win bargaining orders if a majority of workers signed cards and the employer committed serious unfair labor practices. In 2024 the Board issued its first order requiring bargaining despite a union election loss—a proof-of-concept for Cemex’s teeth. As of mid-2025, Cemex remains operative while appellate litigation ambles along. Translation: card majorities matter more; employers’ union-busting carries higher risk.
C. Misclassification & the contractor rule
The U.S. Department of Labor’s 2024 rule tightened the test for independent-contractor status (effective March 11, 2024), but business groups sued. Meanwhile, California’s Prop 22 remains law after the state’s high court upheld it in 2024, keeping app drivers as contractors with a bespoke benefit floor. Uniform clarity? Not even close.
D. City-level floors for app workers
New York City’s minimum pay standard for app-based delivery workers—first of its kind—stepped up to $19.56/hour (before tips) in April 2024, inflation-adjusted annually. Lawsuits slowed rollout, op-eds bemoaned costs, and platforms warned of side-effects. But the floor exists; it’s a live experiment in municipal wage-setting for a non-union workforce.
III. Case files from the edges
1) The home as a workplace: domestic workers
Eleven states and several cities now have Domestic Workers’ Bills of Rights, extending basic standards—contracts, rest breaks, anti-harassment—to nannies, housekeepers, and home care workers. Federally, Rep. Pramila Jayapal reintroduced a National Domestic Workers Bill of Rights in June 2025. Progress is patchwork, but momentum is unmistakable.
Why it matters: Home care is one of the fastest-growing jobs in America, with a 17% projected growth and a 2024 median pay of about $16.78/hour—low wages in a sector doing physically and emotionally heavy labor. Raising floors here stabilizes families on both sides of the employment relationship.
Watch: Domestic Worker Bill of Rights gains victory toward… (California organizing highlight).
2) The phone as a boss: platform couriers and drivers
NYC delivery minimum pay is an instructive test. The city set an hourly floor; platforms added fees, tweaked algorithms, and sometimes cut availability. Editorial boards argue the rules hurt flexible earners; worker groups say the floor finally made rent. Both can be true in the short term. The policy question is whether public standards can discipline an extractive market without choking it.
Watch: NYC delivery workers get minimum wage increase (explainer).
California’s Prop 22 holds drivers as contractors; any national uniformity will come (if at all) from congressional action or a major re-think by platforms. Until then, local experiments like NYC’s floor and deactivation due-process rules are the cutting edge.
Watch: Lives of Food Delivery Workers (short documentary).
3) Temps and the corporate shell game
Temporary staffing creates a dual employer reality: the agency and the host site. OSHA is unambiguous—both are responsible for safety, training, and PPE. But in practice, responsibility gets passed like a hot potato after an injury. A clear playbook exists (OSHA’s Temporary Worker Initiative), yet many sites fall short. Enforcement that hits both entities simultaneously is how you fix incentives.
4) Prison labor and the 13th Amendment’s “except” clause
The 13th Amendment bans slavery “except as punishment for a crime.” Forced labor remains legal in U.S. prisons under that clause; multiple states have been moving to narrow or remove the exception in their constitutions. Legal scholarship in 2025 continues to challenge the dominant interpretation, linking prison labor to the lineage of convict leasing. Whatever your politics, this is not a small carve-out—it’s a labor market with no meaningful bargaining rights by design.
Watch: Ava DuVernay’s 13th.
IV. The economics underneath: misclassification, wage theft, retaliation
- Misclassification moves costs off company books and onto workers (and taxpayers). The Economic Policy Institute estimates big earnings hits for misclassified workers across vulnerable occupations; an updated 2025 analysis reiterates the point. This isn’t a niche problem—it’s a business model in construction, logistics, and parts of the care economy.
- Wage theft is endemic in low-wage services; surveys in strong-law states like California still find four in ten workers reporting violations in a single year. Enforcement that relies on individual complaints misses most of it.
- Retaliation chills reporting. Multiple policy shops have documented the fear effect for immigrant and low-wage workers; DOL’s own materials define retaliation broadly, but again, capacity is the choke point.
Bottom line: When your “boss” is an app, a temp agency, a subcontractor, or the state, the path to collective power is obstructed by design. And even when a legal path exists, it’s littered with delay, retaliation risk, and jurisdictional jiu-jitsu.
V. What’s actually working when unions can’t (yet) get there
Let’s get practical. Here are policies and organizing strategies that show promise for workers without unions, with receipts:
- Municipal and state wage floors targeted to sectors
- NYC’s deliverista minimum pay standard created a hard floor in a sector where piece rates dominate. The cost debate is real, but a transparent, inflation-indexed floor beats algorithmic opacity. Cities should pair floors with a deactivation due-process law and data transparency.
- Just-cause termination and deactivation rights
- Just-cause laws—common in union contracts—can be legislated for platform work. Several proposals in NYC aim to require notice, evidence, and appeal before deactivation. This transforms arbitrary algorithmic punishment into an administrative process. (Debate is active; legislative drafts are evolving.)
- Domestic Worker Bills of Rights
- Where unions can’t enter a private home, statutory rights and a standards board can. State bills of rights and Jayapal’s federal proposal standardize contracts, rest, and overtime and create a hotline plus grants for community-based enforcement. Enforcement money and multilingual outreach are not optional—they are the policy.
- Sectoral or tripartite standards boards
- Care, fast food, or logistics wage boards can set minimums across an industry—like collective bargaining without a union. California flirted with this for fast food; New York has used wage boards historically. When coverage is fractured, sectoral rules make sense.
- Worker centers + payroll compliance partnerships
- Worker centers fill organizing gaps—training, legal navigation, wage-theft clinics—especially for immigrant workers. Tie them to data-sharing with labor agencies so they’re not just clinics; they’re force multipliers for enforcement. (NELP and others document the retaliation dilemma; policy must fund proactive investigations.)
- Portable benefits & universal scheduling rights
- When workers cycle between gigs and temp placements, benefits must travel with the worker, not the job. Pair this with fair scheduling and premium pay for last-minute changes.
- Co-ops and ownership stakes
- Courier and home-care cooperatives exist and can scale with city procurement preferences. Public buyers can require labor standards and favor worker-owned firms in bids.
- Data rights and algorithmic audits
- Require platforms to disclose pay calculation logic, assignment metrics, and deactivation reasons, and to provide workers a copy of their data file. No credible labor market exists without visibility into how wages are computed.
- Use Cemex while it lasts
- In non-excluded sectors, organizers should leverage card-majority and meticulously document misconduct. If the employer crosses lines, Cemex gives the Board a path to bargaining orders even after a marred election.
- Contracting rules & supply-chain leverage
- If joint-employer is curtailed, public procurement can demand labor compliance from prime contractors, with clawbacks for violations among subs. You can recreate joint liability in the terms of the contract even when courts narrow it in labor law. (This is policy design, not litigation.)
VI. Myths to retire
- “If you raise standards, the jobs disappear.” Sometimes output prices jump and platforms trim supply. But we have living examples—NYC’s courier floor, domestic-worker laws—where standards persist and markets adjust. The task is to monitor and tweak, not surrender to first-order effects.
- “Gig workers prefer contractor status, so case closed.” Preference is real; so is Power 101. Prop 22 delivers some benefits and lots of corporate discretion. The question is how to guarantee minimum pay, safety, and due process without erasing flexibility. That’s what city floors and deactivation rules target.
- “Temp agencies own safety.” OSHA says joint responsibility—host and agency. If a temp loses a finger in your plant, saying “not our employee” doesn’t fly.
VII. A field guide for policymakers (and worker advocates) in 2025
1) Map your exclusions.
Know which workers in your jurisdiction are outside NLRA coverage or practically unable to unionize: domestic, farm, app, temp, student, and incarcerated labor. Then build bespoke solutions: sectoral standards, bills of rights, wage boards.
2) Protect against retaliation first.
The best wage law is toothless if a worker gets fired for using it. Make retaliation presumptions (if adverse action follows a complaint within X days, presume retaliation), add treble damages, and fund community navigators to surface violations.
3) Publish pay math.
Require platforms to show how pay is computed (base, distance, time, multipliers), display on-trip time vs. waiting time, and log deactivation reasons with appeal rights.
4) Fund inspectors who speak the languages workers speak.
You can’t spot wage theft or safety failures if your agency never shows up after-hours or in the languages of the workforce. (California’s own data show violations despite strong paper laws.)
5) Use public money as leverage.
Attach labor-standards riders to city contracts and tax incentives; require compliance not only by primes but by subs; enforce with clawbacks.
6) Watch the appellate horizon.
Cemex stands, joint-employer fell. Update your playbook quarterly. If federal rules narrow, lean into state bills of rights and municipal wage standards to fill the void.
VIII. The human side: short vignettes (composite)
- The caregiver: Rotating clients through an agency, she makes $16–$17/hour with unpaid downtime between visits. No union, no paid sick days; when her mother gets sick, she eats the lost hours. A state Domestic Workers’ Bill of Rights plus portable sick leave would change the equation.
- The deliverista: Two apps open, one bike battery; the app slaps a “fraud” flag after GPS drift in the rain. Without deactivation due process, that’s game over. With NYC’s floor, at least the base pay is legible.
- The temp: Sent to a plastics plant with no lockout/tagout training. OSHA calls the agency and the host jointly liable, but only if someone complains and investigators arrive in time. Proactive inspections close the loop.
- The incarcerated worker: Produces license plates for pennies; no bargaining, no strike rights. State constitutional reforms are nibbling at the 13th Amendment exception; pressure is building.
These aren’t edge cases. They’re a shadow labor market hiding in plain sight.
IX. Related explainers & videos (for teaching, organizing, policymaking)
- NYC Deliveristas: Mayor’s announcement on the pay standard (context for the floor and its implementation). ▶️ YouTube City announcement / rule page DCWP pay-rate page
- NLRB basics: What is the NLRB? (IAM General Counsel)
- Domestic workers: CA Domestic Worker Bill of Rights victory Overview training video
X. Data notes and methods
We rely on the Bureau of Labor Statistics (BLS) for union membership figures (2024 release, published Jan. 28, 2025). BLS also supplies occupation-level pay and projections (home health & personal care). Legal status updates draw from the NLRB, federal court filings, Reuters/AP coverage, and official city sources for NYC’s deliverista rules. Think tanks (EPI, NELP) provide misclassification/wage theft syntheses; academic and civil-society sources supply historical and legal context on the 13th Amendment’s exception clause.
Key sources (representative, not exhaustive):
- Union membership: BLS news release (2024 results; published 2025).
- NLRA coverage/exclusions: NLRB explainer; Harvard CLJE.
- Joint-employer rule: NLRB notice of vacatur; S&C analysis.
- Cemex & bargaining orders: NLRB decision summary; Reuters on first post-Cemex order.
- NYC deliverista pay standard: DCWP rule page; NYC Mayor’s office; litigation/coverage background.
- Prop 22: CalMatters; Reuters wrap.
- Temps & OSHA: OSHA temporary worker portal & guidance.
- Care economy wages: BLS Occupational Outlook / OEWS tables.
- Wage theft & retaliation: Axios survey coverage; NELP; DOL guidance.
- 13th Amendment labor: University of Chicago legal scholarship; commentary on historical linkages.
XI. What to do next (a short, hard-nosed checklist)
- If you’re a city or state lawmaker: Draft a sectoral pay floor for domestic work and app-based delivery/ride-hail, with annual inflation indexing, deactivation due process, and funding for community enforcement. Use procurement to enforce labor standards down the supply chain.
- If you’re an agency leader: Launch proactive wage-theft sweeps in retail, food service, home care, and logistics; publish quarterly retaliation metrics and case outcomes.
- If you’re a worker center or union strategist: Combine Cemex organizing with city-level statutory campaigns; treat cards + evidence logs as your dual track.
- If you’re a platform or staffing firm with foresight: Get ahead of mandates: publish your pay formula, adopt a just-cause deactivation policy, and negotiate portable benefits pilots. The alternative is regulation written without you.
References
- U.S. Bureau of Labor Statistics. “Union Members — 2024 (A01 results).” Jan. 28, 2025.
- U.S. Bureau of Labor Statistics. “Union Members — 2024 (State highlights).” 2025.
- National Labor Relations Board. “Are You Covered?” (NLRA coverage/exclusions).
- Harvard Center for Labor and a Just Economy. “Workers Excluded from the NLRA.” 2024.
- NLRB. “NLRB’s Joint-Employer Rule Vacated by U.S. District Judge.” March 2024.
- Sullivan & Cromwell. “Court Strikes Down the NLRB’s New Expansive Joint Employer Rule” (with July 2024 update).
- NLRB. “Board Issues Decision … Cemex Construction Materials Pacific, LLC.” Aug. 25, 2023.
- Reuters. “NLRB issues first order requiring bargaining despite union election loss.” June 18, 2024.
- NYC Department of Consumer and Worker Protection. “Minimum Pay Rate for App-Based Restaurant Delivery Workers” (with 2024 inflation adjustment to $19.56).
- NYC Mayor’s Office. “First Annual Increase in Minimum Pay Rate for App-Based Delivery Workers.” April 2024.
- CalMatters. “Prop. 22 gig-work law upheld by California Supreme Court.” July 2024.
- Reuters. “California’s Prop 22 upheld… but questions remain.” Aug. 22, 2024.
- OSHA. “Protecting Temporary Workers” (Joint responsibility).
- BLS. “Home Health and Personal Care Aides” (2024 pay and outlook).
- Economic Policy Institute. “The economic costs of worker misclassification” (and 2025 update).
- Axios. “Hourly workers in California report high levels of wage theft.” May 23, 2024.
- DOL Wage & Hour Division. “Retaliation” explainer.
- University of Chicago. “Rethinking prison labor under the 13th Amendment.” June 5, 2025.
- Brown University Law Review (blog). “The 13th Amendment Loophole: Prison Labor and the Legacy of Slavery.” 2025.
- National Domestic Workers Alliance & Rep. Jayapal. 2025 reintroduction of the National Domestic Workers Bill of Rights (press release; bill text).
Final word
Most American jobs still don’t have union protection, and that’s not changing fast. But “no union” doesn’t have to mean “no power.” The old playbook—shop-by-shop elections—will never reach the delivery cyclist, the live-in care worker, or the temp running a dangerous machine across town. The new playbook is hybrid: sectoral floors where unions can’t reach, just-cause and data rights for algorithmic bosses, proactive enforcement to neutralize retaliation, and strategic use of Cemex where it applies.
The margin is where the future of labor will be decided. Let’s stop calling it the margin, then write laws and build institutions that treat this workforce as the center it already is.
