53 research outputs found
The Workplace in a Racially Diverse Society: Preliminary Thoughts on the Role of Labor and Employment Law
Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law
What Should We Do After Work? Automation and Employment Law
Will advances in robotics, artificial intelligence, and machine learning put vast swaths of the labor force out of work or into fierce competition for the jobs that remain? Or, as in the past, will new jobs absorb workers displaced by automation? These hotly debated questions have profound implications for the fortress of rights and benefits that the law of work has constructed on the foundation of the employment relationship. This Article charts a path for reforming the law of work in the face of both justified anxiety and uncertainty about the future impact of automation on jobs.
Automation is driven largely by the same forces that drive firms’ decisions about “fissuring,” or replacing employees with outside contractors. Fissuring has already transformed the landscape of work and contributed to weaker labor standards and growing inequality. A sensible response to automation should have in mind the adjacent problem of fissuring, and vice versa. Unfortunately, the dominant legal responses to fissuring—which aim to extend firms’ legal responsibility for the workers whose labor they rely on—do not meet the distinctive challenge of automation, and even modestly exacerbate it. Automation offers the ultimate exit from the costs and risks associated with human labor. As technology becomes an ever-more-capable and cost-effective substitute for human workers, it enables firms to circumvent prevailing legal strategies for protecting workers and shoring up the fortress of employment.
The question is how to protect workers’ rights and entitlements while reducing firms’ incentive both to replace employees with contractors and to replace human workers with machines. The answer, I argue, lies in separating the issue of what workers’ entitlements should be from the issue of where their economic burdens should fall. Some worker rights and entitlements necessarily entail employer duties and burdens. But for those that do not, we should look for ways to shift their costs beyond employer payrolls, or to extend the entitlements themselves beyond employment. The existing fortress of employment-based rights and benefits is under assault from fissuring and automation; it is failing to protect those who remain outside its walls, and erecting barriers to some who seek to enter. We need to dismantle some of its fortifications and construct a broader foundation of economic security for all, including those who cannot or do not make their living through steady employment
The Workplace in a Racially Diverse Society: Preliminary Thoughts on the Role of Labor and Employment Law
Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law
Reconstituting the Law of the Workplace in an Era of Self-Regulation
As the reach of collective bargaining has shrunk in recent decades, the domain of employment law – of judicially-enforceable individual rights and administratively-enforced regulatory standards – has expanded. Both branches of employment law have seen the rise of employer “self-regulation” – internal systems for enforcement of rights and regulatory standards – and of legal inducements to self-regulation in the form of reduced public oversight or sanctions. In the shift from “self-governance” to “self-regulation,” employees have lost their institutional voices and are losing the protective oversight of courts and public agencies. In this article Professor Estlund looks for ways not to combat the movement toward self-regulation – which she finds both inexorable and potentially promising – but to channel that movement so as both to fortify employee rights and labor standards, and to give employees a stronger voice in their own work lives and workplaces. Drawing on a range of regulatory theory and experience, Estlund casts outside monitors – independent of employers, accountable to employees and the public – in a central role in a system of “monitored self-regulation.” Employees play essential supporting roles as whistleblowers, informants, and watchdogs; and targeted public enforcement and private litigation supply much of the impetus for effective self-regulation. The article aims to bridge the divide between labor law and employment law – to find leverage within the dynamic law of workplace rights and regulations for the rejuvenation of employee voice, and to use new forms of employee voice to help realize workplace rights and improve labor standards
What Do Workers Want? Employee Interests, Public Interests, and Freedom of Expression under the National Labor Relations Act
- …