Private Law Theory Meets the Law of Work

 

Abstracts: 

 

 

The Classical Liberal Version of Labor Law: Beware of Coercion Dressed up as Liberty

Richard Epstein

 

In recent years a wealth of academic scholarship has sought to reinvigorate the labor movement, which has witnessed its declining fortunes. One such notable effort is by Hanoch Dagan who in his book A Liberal Theory of Property Rights, argues that strong pro-unionization measures are needed to restore a measure of decency and parity in the workplace.  This article claims that a liberal theory of property law requires the exact opposite, namely, a return to competitive markets in labor, which in a dynamic technological age allows for firms and workers to recontract with great rapidity to meet the insistent challenges of the day. 
To make this case, I review the failure of the noncontractual approaches that are embodied in both the National Labor Relations Act (1935) in the United States and the Employer Relations Act (2001) in New Zealand to take a traditional notion of relational contracts that specify good faith, reciprocal, renegotiation that works in long term voluntary partnership and to use it to justify rigid collective bargaining systems in which unions are always interposed between workers and management.  The decline in modern labor unions stems from the simple fact that the labor union middleman can no longer deliver monopoly rents to workers, but it can deprive them of the benefits of flexible working arrangements. The constant trope of labor exploitation that treats workers as helpless pawns whose lives are governed by monopoly employers rings false, so long as there is the power quit and seek alternative employment.  The succession of union defeats in elections in manufacturing sector (Volkswagen) and the service sector (Amazon) are not a sign of malevolent management forces, but of a worker awareness that the union middleman no longer applies value to them.  

 

 

Employment Law’s Other Public-Private Distinction

Sophia Z. Lee

Employment law in the United States is bifurcated between public statutes and private law. The former protect worker safety, prohibit discrimination, provide a right to organize, and ensure minimum wages for workers and the unemployed. When it comes to job security for private sector workers, however, only one lightly populated state offers statutory protections. For most workers in the United States, what job security they have derives from contract and tort law. Unions’ collective bargaining agreements, most of which protect against arbitrary terminations, are a potential exception that actually further demonstrate this rule: Though the labor laws enable such agreements, those laws also help preserve a labor regime built around private contracts between unionized employees and their employers. This state of affairs was not inevitable. Instead, during the 1970s and 80s, the early architects of “employment law” as a distinct legal field sought job security for workers not only in common law courts but also in state and federal legislatures. Initially, the public and private law approaches to job security drove each other on; ultimately, however, they shut each other down. This paper uses the history of job security to highlight the precarity of public law requirements that are crafted onto agreements governed by private law and to raise more general questions about the boundary and interrelationship between the categories of public and private law.

 

 

 

Can Contract Emancipate? Contract Theory and The Law of Work

Hanoch Dagan & Michael Heller

 

Contract and employment law have grown apart.  Long ago, each side gave up on the other.  In this Article, we re-unite them to the betterment of both.  In brief, we demonstrate the emancipatory potential of contract for the law of work.

Today, the dominant contract theories assume a widget transaction between substantively equal parties.  If this were an accurate description of what contract is, then contract law would be right to expel workers.  Worker protections would indeed be better regulated by – and relegated to – employment and labor law.  But contract law is not what contract theorists claim.  Neither is contract law what the dominant employment theorists fear – a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers.

Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination.  From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves.  We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself.  

Grounding worker protections in contract theory has two salutary effects.  First, it offers workers more secure protection than that afforded by their reliance on momentary public law compromises.  Second, it reveals contract’s emancipatory potential for all of us – not just as workers, but also as widget buyers.  Contract can empower, and employment can show the way. 

 

 

Are Workers’ Rights Internal to Property Rights?

Cynthia Estlund

 

Many labor law scholars, especially in the US, have tended—in part for historical reasons—to put private law at arms-length.  Should those scholars instead throw in with Hanoch Dagan and other private law theorists who are seeking to reconstruct the conventional paradigms of property and contract along more just and egalitarian lines?  Or is the law of work something distinct from and external to private law?  Behind those questions lurks another:  What is at stake in locating work law within or outside the domain of private law?  

I will argue here that the law of work is best understood as an external constraint on both individual employment contracts and employer property rights, and as fitting within a largely-neglected category of “social law” that straddles private law and public law.  On that view, there is no escaping occasional conflict between property rights and workers’ rights, adjudicated in the US through the constitutional law of “takings.”  That conflict is highlighted and heightened by the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, which struck down on takings grounds a 40-year-old California regulation that gave union organizers access to employer property to meet with agricultural workers.  I’ll use the case to compare the Daganian path to liberalizing the law of property in recognition of workers’ rights with an alternative path of reforming the law of takings to make more room for the social law of work.  At least after Cedar Point, which veered toward a neo-Blackstonian conception of property, both paths face steep and rocky uphill climbs. 

 

 

Good Faith in Employment

Sabine Tsuruda

 

This essay advances a purposive interpretation of the duty of good faith in employment contracts. It argues that the duty of good faith requires that the parties to a contract implement an egalitarian authority structure in their relationship that treats both parties as joint authorities over the purposes and requirements of their relationship. This authority structure has significant implications for employment law. First, it reveals that at-will employment clauses unlawfully waive the duty of good faith and should therefore not be enforced. Second, the duty of good faith requires that contract law secure communicative and epistemic conditions for the parties to a contract to ascertain, develop, and implement their joint perspective on the purposes and terms of their relationship. In the context of employment, such conditions must include a variety of employee speech rights and protection from termination for reasonable and good faith refusals to perform work. Giving full legal effect to the duty of good faith in employment can thus mitigate objectionable hierarchy in employment and support the emancipatory aspirations of work law.

 

 

Relational Justice in Work

Hugh Collins

 

This article elaborates a novel approach to the question of what principles of justice should apply to work.  The focus is on employment and other contracts for the personal performance of work.  The main task is to construct moral principles by which the conduct of employers towards their employees (and vice-versa) can be assessed to be just or fair.  This conduct may concern basic terms and conditions of employment such as pay and working conditions, but it also may involve personal interactions and other forms co-operation such as the disclosure of information and consultation about business strategy.   The project of an investigation of the principles of justice in work seeks a critical perspective on the law so that it can suggest amendments and reforms to bring the law into line with the moral requirements of justice in work.

The first step in the argument is to consider what kind of justice is required for the development of principles suitable for justice in work.  A distinction is drawn between two kinds of moral theories of justice: distributive and interpersonal justice (section 1). 

Next, it is shown how these contrasting theories of justice suggest different approaches or starting-points for the development of principles of justice applicable to the workplace.  It is argued the interpersonal approach is likely to provide a more fruitful source of moral principles of justice for employment (section 2).

Furthermore, it is argued that even if the interpersonal approach does not offer such a rich seam of principles of justice in work as may be suggested here, nevertheless it deserves to be accorded priority in the development of principles of justice in this context of work arrangements (section 3). 

We then consider the required methodology for developing such interpersonal principles of justice, where it is argued that the best way to formulate those principles is not to attempt to construct a model based on abstract philosophical ideas such as equality and autonomy, but rather in this context of purposive, collaborative, and consensual activity to examine closely the functioning of the market transaction of employment, its normative assumptions, and its evolving legal regulation in order to obtain the most appropriate principles (section 4).

The essay then proceeds to use this methodology, which is called ‘sociological jurisprudence’, to examine two distinctive features of contracts of employment which provide reasons for its particular principles of interpersonal justice.  The first feature is that employment fits into the category of being a relational contract, which functionally requires the development of an almost mandatory norm of performance in good faith, a vital normative principle interpersonal justice in work (section 5). 

The second feature is that employment usually takes place within a productive organisation, which requires the development of principles of law that respect everyone’s contribution and participation in the organisation.  These associational principles of justice can again be regarded as vital principles of justice in work (section 6). 

The essay concludes by acknowledging that this use of the private law of employment can only take us so far in the development of principles of justice in work and that it has to be supplemented with norms that require respect for human rights and distributive justice (section 7). 

What makes this approach to devising principles of justice in work novel is the priority accorded to interpersonal justice over distributive justice, the methodology of sociological jurisprudence, and significance attached to the principles of good faith and associational justice within interpersonal justice.   

 

 

Nondomination and the Ambitions of Employment Law

Aditi Bagchi

 

Most legal scholars writing about domination do it through a group lens.  Critical theory and anti-subordination theory, in particular, have focused on the ways in which groups maintain their power over other groups through social structures.  Republican political theory has developed a more general account of domination that operates at the individual level but its prescriptions are aimed at regulating the general background conditions for domination, not responding to individual instances of domination.  While employment relationships figure prominently in both critical/antisubordination and republican accounts of domination, neither, standing alone, can justify the granular content of employment law, which regulates bilateral relationships between particular employees and their employers . Private law, at its best, can be understood as attempting to vindicate some limits to private domination, upholding social boundaries that are otherwise vulnerable to trespass in the face of private power.
This essay will offer two possible interpretations of employment law:  We might understand it as continuous with private law in this respect, that is, attempting to vindicate a nondomination principle in the context of employment.  Alternatively, we might understand employment relationships to define group membership, commonly recognized along class lines.  In that case, employment law is not about individual nondomination but about mitigating class subordination and preserving the conditions for collective self-governance.  My aim will be to explore how these two interpretations are sometimes competitive and sometimes mutually reinforcing.

 

 

The Tort Law of Workplace

Avihay Dorfman

 

Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grant rights of redress.  Two conceptions of tort law appear to dominate the ways we understand and discharge these tasks.  One conception takes tort law to be the law of wrongs whereas the other conception equates tort law with the law of private redress.  I argue that both conceptions (including a combination of both) mischaracterize what tort law does and what it should be doing.  By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law  to be that of identifying the nature of the conflict to which it responds (or shapes).  In fact, there are three of them: Inherently valuable, tolerably valuable, and valueless conflicts.  Each type of conflict calls for a qualitatively different response by the law of torts.  The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law.  I demonstrate this claim in connection with the tort law of workplace and, in particular, trespass law as it applies to organizing activities at the physical workplace.   

 

 

Ownership prerogatives and labour control in employment status disputes

Julia Tomassetti

 

This paper explores how the notion of managerial prerogative shapes disputes over whether certain workers are employees or independent contractors. It finds that companies often assert certain prerogatives over the commercial enterprise to both legitimize their control over workers and exempt that control from legal liability. The company suggests that the tribunal should interpret its labor control not as an exercise of its authority as an employer, but rather as an exercise of its managerial prerogative to protect and dispose of its property. The company thus offers an alternative rationale for the same labor arrangement—managerial prerogative in lieu of employment. The idea that companies possess managerial prerogatives that trump worker rights appears in several areas of labour and employment law; however, in these other areas, decision makers often decline to articulate a legal rationale for managerial prerogative or leave the rationale ambiguous at best. In contrast, in disputes over employment status, companies suggest or outright claim that their prerogatives are based on property rights: Labour controls are simply conditions that the company imposes on others (workers) in exchange for their use of, or access to, its property. The paper explores the kinds of prerogatives that companies claim in employment status disputes and how tribunals respond to these arguments, focusing on disputes over service work, including platform work. It finds that companies assert rights to intangible property, such as brand identity, as a rationale for controlling their workers’ performance. They also suggest that certain controls reflect the prerogatives to decide what to make and how to market it. Platform companies go further, suggesting that, once managerial controls are programmed into proprietary algorithms, they lose their character as such and become incidents of the company’s intellectual property. Thus, automation and digitalization transform traditional employer functions, like directing, monitoring, correcting, and disciplining workers, into exercises of property rights. I argue that decision makers should reject arguments that seek to limit the scope of labor and employment law based on putative managerial prerogatives. Decision makers need not search for a legal rationale for employer control beyond the power the employer wields through its control over the means of production. Further, appeals to managerial prerogative are premised on the unproven assumption that a company must have near absolute control over the enterprise to promote economic efficiency.