A Roadmap to Sectoral Bargaining Through Parker Immunity

A new paper from Open Markets Senior Legal Analyst Daniel Hanley and Chief Economist Brian Callaci explores how states can authorize sectoral bargaining by enacting laws that leverage Parker Immunity.

Parker Immunity offers states the power to restructure labor markets in ways that federal labor and antitrust laws do not permit. Done right, it can foster democratic and fair competition for workers and businesses alike. This paper provides a detailed legal roadmap for how to do this.

Further Context: Labor law is in crisis. For decades, the National Labor Relations Act (NLRA) has failed to provide meaningful support for worker organizing in our modern, fragmented, competitive, and increasingly fissured labor markets.

For many workers, such as independent contractors or those misclassified as such, the problem is even worse. The antitrust laws often treat collective action between these parties as illegal collusion. But this wasn’t always the case. Before the NLRA, unions often shaped labor markets by negotiating “fair competition” codes—rules that applied across entire sectors, not just individual firms.

This tradition has been historically referred to as “regulatory unionism”: a model in which labor did not just bargain for better wages but also co-governed the terms of market competition alongside employers. The clearest historical example of this was the National Industrial Recovery Act (NIRA), which briefly supported industry-wide bargaining with state oversight before being struck down by the Supreme Court in 1935. NIRA is too often dismissed, but this paper argues that it was a serious (if imperfect) attempt at democratizing market governance, especially in chaotic, low-wage sectors such as garments and coal.

Today, states can pursue similar goals to NIRA by using Parker Immunity, a longstanding doctrine that allows them to exempt certain state-authorized conduct from federal antitrust law. Under Parker Immunity, states can legally authorize workers and employers to jointly set industry standards, including wages and working conditions, without violating the antitrust laws. If structured and drafted carefully, these policies can withstand legal scrutiny and offer a viable path to sectoral bargaining where the NLRA has failed or cannot deliver. This paper details how it can be done.