July 19, 2012
Doorey on A Model of Responsive Workplace Law
David Doorey (York Univ. (Canada)) has posted on SSRN his forthcoming piece in the Osgoode Hall Law Journal called "A Model of Responsive Workplace Law". As David points out, this is the final (much revised) published version of a draft paper Mike Zimmer (Loyola-Chicago) reviewed previously on Jotwell.
Here is the abstract:
The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether 'decentred' regulatory theory offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but 'Managerialist.' Politicians with a Managerialist orientation reject the Pluralist idea that collective bargaining is always preferred, and the Neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers who mistreat their employees. The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a 'dual regulatory stream' model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.
Although I count myself as one of the skeptics of the decentered/new governance approach to labor relations, I am a huge fan of David's work and encourage others to read in this piece his innovative ideas for getting Northern American labor law back on the right track.
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