Rebuilding the Law of the Workplace in an Era of Self-Regulation

Rebuilding the Law of the Workplace in an Era of Self-Regulation

Description

As the New Deal model of industrial self governance in the United States has grown old and ossified, the problems to which collective bargaining was to be the answer have not disappeared. Nor has the law ceased to grapple with them. On the contrary, the role of external law—of courts, of legislation, and of regulatory bodies—has burgeoned as the New Deal system of internalised lawmaking and dispute resolution has shrunk. Since the 1960s, the New Deal collective bargaining system has been supplemented, and largely supplanted, by other models of workplace governance: a regulatory model of minimum standards enforceable mainly by administrative agencies (think of OSHA and the minimum wage laws) and a rights model of judicially enforceable individual rights (think especially of anti discrimination law). These two bodies of law, which make up much of what we in the US call ‘employment law’, each mobilised institutions and resources that were not central to the collective bargaining model constituted by ‘labour law’. The regulatory model harnessed the coercive power and comprehensive reach of the government, while the rights model made courts central to the articulation and enforcement of employee rights, and tapped into the self interest and indignation of aggrieved individuals and the professional and entrepreneurial energies of their attorneys. Much as they resisted the constraints of collective bargaining, employers have fought back against the burdens of regulatory compliance and of litigation; they have proclaimed the virtues of deregulation and decried the ‘litigation crisis’. But challenges to the efficacy of regulation and litigation of workplace rights and standards have come not only from employers but from scholars and employee advocates as well. Observers from a range of perspectives have argued that the post war regime of command and control regulation is losing its grip in the face of rapidly changing markets, technology, and firm structures; that civil litigation is a costly, slow, and unwieldy mechanism for securing employee rights.

Source Publication

Regulating Labour In the Wake of Globalisation: New Challenges, New Institutions

Source Editors/Authors

Brian Bercusson, Cynthia Estlund

Publication Date

2008

Rebuilding the Law of the Workplace in an Era of Self-Regulation

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