Wednesday, November 15, 2017
Deborah Widiss (Indiana) has just posted a new book chapter on SSRN: Addressing the Workplace Effects of Intimate Partner Violence, in Violence and Abuse in the Workplace (Cary Cooper & Ronald Burke eds., forthcoming 2018).
Here's the abstract:
Although most physical violence against intimate partners occurs in the home, intimate partner violence (IPV) also affects workplaces. It often causes absences, productivity losses, and employee turnover; less commonly, perpetrators physically attack their intimate partners at work. This book chapter discusses best practices for decreasing workplace disruptions and the risk of workplace violence caused by IPV, and it explains legal standards that may apply. The primary focus is the United States, but research and legislation from other countries is also included. It also identifies websites that provide research, model policies, and other tools for organizations seeking to address IPV, including resources regarding employment of perpetrators of IPV.
This topic feels especially salient given the role of family violence in recent high profile shootings. This chapter looks like a helpful resource, and I'm looking forward to the book's release.
Tuesday, October 24, 2017
What do unions do for regulation? That's the subject of Alison Morantz's recent and timely review of the research literature: "What Unions Do for Regulation," Annual Review of Law and Social Science 13 (2017): 515-534. Here's the abstract:
The question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.
Morantz's main conclusion: There's a lot of support in the research literature for thinking that, "in most contexts, unions' tendency to strengthen workers' collective voice and mitigate market imperfections predominates their tendency to exert monopoly power and engage in economic rent-seeking." The best evidence of this comes from studies of how unionization strongly correlates with lower rates of serious and fatal workplace injuries. Some prior research also shows that unions tend to lower overall wage dispersion, which may indirectly reduce pay discrimination against women and racial minorities.
Tuesday, September 5, 2017
Tequila Brooks has just posted an essay over at Intlawgrrls on Making the human rights case for including compensation for workplace injuries in free trade agreements. Here's an excerpt:
For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported. Although public policy and extensive case law in the U.S. guarantee workers’ compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities.
Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers’ compensation or protection of migrant workers – but they should. Labor provisions in FTAs contain mechanisms that can enhance member states’ ability to protect human rights. While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues. They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind – and act accordingly to ensure that workers’ compensation is included among the labor rights protected in any re-negotiated agreement.
Thursday, May 11, 2017
Readers may be interested in a new report from the Center for Progressive Reform: Preventing Death and Injury on the Job: The Criminal Justice Alternative in State Law. An excerpt from the summary:
Workers and advocacy groups are turning to the states as possible avenues for successful reform, urging local prosecutors to pursue crimes involving worker fatalities and serious injuries under their states’ general criminal laws, as the Massachusetts prosecutor did in the case against Edmund Godin for involuntary manslaughter more than 30 years ago. To date, only a few prosecutors in a handful of states (e.g., California, Illinois, Massachusetts, Michigan, and New York) have actively pursued such cases, but those prosecutors have been remarkably successful. Such advocacy efforts suggest that criminal prosecutions are increasingly important for punishing and deterring employer neglect and malfeasance.
In 2014, Center for Progressive Reform Member Scholars and policy analysts published Winning Safer Workplaces: A Manual for State and Local Policy Reform, which discussed this reform effort, along with a series of workers’ rights campaigns beginning to take hold at the state and local level. Following up on the 2014 manual, this new manual offers more detailed assistance to advocates who want to enhance criminal prosecutions for crimes against workers.
Friday, August 26, 2016
The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:
CALL FOR PAPERS
APPLIED FEMINISM AND INTERSECTIONALITY:
EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference. We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways. While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/.
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities. This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory? How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression? What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to firstname.lastname@example.org. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at email@example.com. For additional information about the conference, please visit law.ubalt.edu/caf.
August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)
Tuesday, March 22, 2016
Alison Morantz (Stanford) has just posted on SSRN her article Rejecting the Grand Bargain: What Happens When Large Companies Opt Out of Workers’ Compensation? Here's the abstract:
The “grand bargain” of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault occupational injury insurance, was one of the great tort reforms of the Twentieth Century. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which many firms (“nonsubscribers”) have chosen to do so: Texas. This study examines the impact of Texas nonsubscription on fifteen large, multistate nonsubscribers that provided their Texas employees with customized occupational injury insurance benefits (“private plans”) in lieu of workers’ compensation coverage between 1998 and 2010. As economic theory would lead one to expect, nonsubscription generated considerable cost savings. My preferred estimates suggest that costs per worker hour fell by about 44 percent. These savings were driven by a drop in the frequency of more serious claims involving replacement of lost wages, and by a decline in costs per claim. Both medical and wage-replacement costs fell substantially. Although the decline in wage-replacement costs was larger in percentage terms than the drop in medical costs, the latter was equally financially consequential since medical costs comprise a larger share of total costs. The second stage, which compares the effect of nonsubscription across different types of injuries, finds that non-traumatic injury claims were more responsive to nonsubscription than traumatic ones. In part, this disparity reflects the fact that private plans categorically exclude some non-traumatic injuries from the scope of coverage. Yet even those non-traumatic injuries that were not excluded from coverage declined more than traumatic injuries, consistent with aggressive claim screening by employers and/or a decline in over-claiming and over-utilization by employees in the nonsubscription environment. The third stage examines the effect of nonsubscription on severe, traumatic injuries, which are generally the least susceptible to reporting bias and moral hazard. The sizable and significant decline in such injuries is consistent with an improvement in real safety, although it could also be explained by aggressive claim screening. The final stage of the study probes whether four ubiquitous features of private plans – non-coverage of permanent partial disabilities, categorical exclusion of many diseases and some non-traumatic injuries, capped benefits, and lack of chiropractic care – explain the observed trends. Surprisingly, these features account for little of the estimated cost savings. Although many study participants describe limited provider choice and 24-hour reporting windows as major cost drivers, data limitations preclude me from identifying their respective impacts. Overall, my findings suggest an urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social welfare state into an optional program that exists alongside privately-provided forms of occupational injury insurance.
Tuesday, July 14, 2015
Allison Morantz (Stanford) has just written and posted on SSRN the article I've been hoping to see ever since I practiced in Texas some 20 years ago -- Rethinking the Great Compromise: What Happens When Large Companies Opt Out of Workers' Compensation? Here's the abstract:
The “great compromise” of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault insurance coverage for occupational injuries, was one of the great tort reforms of the Twentieth Century. Because participation is usually compulsory, it is difficult to forecast what the real-world effects might be of making workers’ compensation voluntary. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which a significant number of firms (“nonsubscribers”) have chosen to do so: Texas. This is the first empirical study to examine comprehensively the impact of Texas nonsubscription on large, multistate nonsubscribers. I analyze highly granular data from fifteen large, multistate companies that provided their Texas employees with customized occupational injury insurance plans (“voluntary plans”) in lieu of workers’ compensation coverage between 1997 and 2009. As economic theory and common sense would lead one to expect, nonsubscription generates considerable cost savings, reducing total programmatic costs by an average of about 29%. These savings were driven by a drop in the frequency of injury claims – especially more serious claims involving replacement of lost wages – combined with an decline in costs per claim. The drop in cost per claim arises from a fall in both medical and wage-replacement costs. Although the decline in wage-replacement costs is larger in percentage terms, the drop in medical costs is more financially consequential since medical costs constitute such a large share of total costs. The paper finally explores whether several common attributes of workers’ compensation regimes that voluntary plans typically forgo – compensation for permanent partial disabilities, uncapped total benefits, chiropractic coverage, unlimited choice over medical providers, and lengthy injury-reporting windows – are likely to account for the observed cost disparities. Surprisingly, the first three of these features account for little of the observed variation. Although it is much more difficult to isolate the empirical impact of provider choice and reporting windows, my analysis provides some intriguing, albeit highly tentative, evidence that state-level variation in injury-reporting windows could have a significant effect. Overall, my findings suggest the urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social safety net into an optional program that co-exists alongside privately-provided forms of occupational injury insurance.
This article deserves a close read. National employers doubtless noticed some time ago that their workplace-injury costs are lower in Texas than elsewhere, and Allison makes the point that these employers are now starting to push other states to reconsider the Great Compromise underlying workers' compensation law. Will this beget a "race to the bottom" as states scramble to attract employers by allowing them to opt out of workers' compensation programs, and employers respond by opting out and leaving injured workers in the cold? Or is a self-insured, nonsubscriber system a net benefit to employers and workers by incentivizing employers to invest more heavily in workplace safety and to more carefully control health care costs? Allison's article answers a lot of questions, but also opens up a broad field fertile for future research.
Tuesday, April 28, 2015
The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.
Registration is now open at: http://www.law.indiana.edu/cosell.
If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.
The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.
Please feel free to contact any of us with questions.
We will look forward to hosting you in Bloomington!
April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Monday, January 12, 2015
Thirteen former United Airlines (UAL) flight attendants say they were improperly fired last year after refusing to work on a Boeing Co. (BA) 747 jumbo jet that had “menacing” images drawn below its tail.
The attendants say they had a right to disobey orders to make the July 14 San Francisco-to-Hong Kong trip after the words “bye bye” were found written in an oil slick on the fuselage, according to a complaint to the U.S. Occupational Health and Safety Administration. Two faces, one smiling and one “devilish,” were drawn nearby, according to the complaint.
At issue is the extent to which the images represented a security risk, as alleged by the attendants. According to the complaint, the workers saw a “serious” threat, while United inspected an auxiliary power unit near the drawings, found nothing suspicious and trivialized the incident as a “joke.”
Thursday, November 13, 2014
A joint investigative report by National Public Radio and the Mine and Safety News finds that thousands of mine operators regularly fail to pay imposed safety penalties. They looked at twenty years of data from the US Mine Safety and Health Administration and the US Department of Labor. Findings include:
- 2,700 mining company owners failed to pay nearly $70 million in delinquent penalties.
- The top nine delinquents owe more than $1 million each.
- Mines that don't pay their penalties are more dangerous than mines that do, with injury rates 50 percent higher.
- Delinquent mines reported close to 4,000 injuries in the years they failed to pay, including accidents that killed 25 workers and left 58 others with permanent disabilities.
- Delinquent mines continued to violate the law, with more than 130,000 violations, while they failed to pay mine safety fines.
These findings don’t include any delinquency less than 90 days old. Although delinquent mine operators “account for just 7 percent of the nation's coal, metals and mineral mining companies,” that subset “is more dangerous than the rest.” Enforcement is difficult, the report suggests, in part because coal mine regulation is a low priority for limited law enforcement resources, and because it’s often hard to connect the nominal mine operators to the people actually running the mines.
Thursday, September 18, 2014
In early August, the Tennessee Court of Appeals decided a case of first impression, Torres v. Precision Industries, et al., No. W2014-00032-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2014), examining whether an undocumented worker can state a common law claim for wrongful discharge after being fired in retaliation for filing a workers’ compensation claim.
This is the most recent round in a long-running debate in both state and federal courts about the ability of undocumented workers to make claims under labor and employment law and then, if they win, to collect damages. Of interest to me are the assumptions that judges make about the incentives that their decisions in the labor/ employment arena – to recognize or deny a right, or to allow or disallow a backpay award – will create in the immigration arena.
There are two possible incentives that courts have explored. On the one hand, if undocumented workers are allowed to make labor and employment claims and collect damages on the same terms as their documented co-workers, then more people will be enticed to migrate to the United States and obtain jobs without authorization. In this view, denying rights and remedies will reduce undocumented immigration. On the other hand, if undocumented workers are less protected by labor and employment law, then unscrupulous employers will be incentivized to hire more undocumented workers precisely because their lack of rights will make them more pliable and cheaper to employ. In this view, denying rights and remedies will increase undocumented immigration.
Perhaps the most famous enunciation of these two views came in the 2002 Supreme Court case, Hoffman Plastic Compounds v. NLRB, where the Rehnquist-led majority took the former view and the Breyer-led dissenters took the latter.
The Tennessee Appeals Court has now weighed in on the side of the Hoffman dissenters, holding that “[W]e find that depriving unauthorized aliens of an avenue to bring a retaliatory discharge claim could potentially increase the incentive of employers to hire illegal workers that they could terminate if a workers' compensation claim was filed. . . It also decreases the burden on employers to provide and maintain a safe workplace, if an employer can easily escape paying workers' compensation for an injury by firing an unauthorized alien employee without consequence.”
I think that the Tennessee Appeals Court got it right. Though I would love to see some empirical research on which of these two views of workers' and employers' incentives is accurate, I find it hard to imagine that many migrants, when deciding whether to enter the United States and take work without authorization, even know about or consider the contours of their rights and remedies on the job. Also, I do not find it hard to believe that unscrupulous employers would seek out undocumented workers precisely because of their precarious legal status.
Now for the side notes:
The oral argument in the Torres case is available on the Appeals Court’s website. At the very end of the recording (around minute 31.33), one of the judges on the panel asks the plaintiff’s counsel, Steven Wilson, where he got his “nice accent.” Mr. Wilson answers, “Wales,” and some pleasant conversation ensues. It was perhaps not lost on everyone in the courtroom that immigration and immigrants were playing roles on various levels during the hearing – one wonders whether a different accent would have drawn the same comments, and how the presence of Mr. Wilson, with his accent as an obvious marker of his migrant status, influenced the judges' thinking.
And regarding labels and their power: Throughout the proceeding, Mr. Wilson refers to Mr. Torres as an “undocumented worker.” (Mr. Torres actually obtained a U visa in February 2013.) At the beginning of the defense lawyer’s argument (at around minute 14.40), he makes the seemingly tangential point that Mr. Torres should, in fact, be called an “illegal alien,” because that is the label used by Tennessee statutes and the state supreme court. Many commentators have noted the power (and inaccuracy and offensive nature) of this “illegal” label, but the defense strategy seems not to have worked in this instance, as the Torres opinion uses the terms “undocumented worker,” “unauthorized alien,” and “illegal alien” interchangeably, and ultimately sides with Mr. Torres, whatever his label.
(Thanks to my colleague Sue Willey for alerting me to the Torres case.)
-- Charlotte Alexander
Thursday, June 12, 2014
Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014. The Colloquium is scheduled in Boulder between September 11-13, 2014.
You can register and submit a paper proposal at this link:
June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, April 24, 2014
From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.
To register, click here.
April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Monday, January 20, 2014
As a firm believer and advocate for employee whistleblower rights, I am pleased to welcome to the blogosphere, Whistleblower Protection Law Blog, run by Zuckerman Law (and in particular, Jason Zuckerman). The blog focuses on developments in whistleblower law from a whistleblower advocate’s perspective.
Jason has been around whistleblower law practice in a number of different capacities. He has litigated whistleblower cases in private practice for about a decade and then served as Senior Legal Advisor the Special Counsel at the U.S. Office of Special Counsel, an independent agency charged with protecting whistleblowers in the federal government. In addition, he was appointed by former Secretary of Labor Solis to serve on the Whistleblower Protection Advisory Committee, which advises and makes recommendations to the Secretary of Labor to improve the fairness, efficiency, effectiveness, and transparency of OSHA's administration of whistleblower protections.
You can find Jason's bio and publications on his website. Check out this great new blog!
Monday, December 30, 2013
For many years, Texas has been the only state that permits employers to opt out of workers compensation. Peter Rousmaniere (workers comp columnist and consultant) and Jack Roberts (former EIC of Risk & Insurance) have put together Workers' Compensation Opt-Out: The Texas Experience and the Oklahoma Proposal. It's worth checking out.
Friday, June 14, 2013
In particular, and in response to the crazy last week of whistleblower and secrecy news, including the whole Snowden affair, Richard has started the Law of Secrecy blog on Tumblr.
I have read all of the posts so far and they are excellent. Not surprising, given that Richard is a leading national expert on all forms of whistleblower law, as his vast writing in the area indicate.
Check out this new blog when you have the chance. I have a feeling that it will be mandatory reading for anyone wanting to keep up on the increasing news about the surveillance state and whistleblowing.
Friday, March 1, 2013
Hat Tip: Alex Long & Jody Prestia
Thursday, December 20, 2012
The Australian Federal Court has dismissed an employer's appeal and thus let stand a ruling that a woman who was injured while having sex with her boyfriend in a hotel room while on a business trip was injured "in the course of employment" and therefore is entitled to compensation. The Australian News reports:
The woman who worked for workplace health insurer Comcare, claimed for facial and psychological injuries suffered when a glass light fitting came away from the wall above the bed in her motel room as she was having sex in November 2007.
The woman in her late thirties was required to travel to a country town by her employer when the incident occured. She arranged to meet a male friend there who lived in the town. They went to a restaurant for dinner and at about 10pm or 11pm went back to the woman's motel room where they had sex that resulted in her injury.
The male friend said in his statement at the time that they were "going hard” and he did not know if they bumped the light or it just fell off.
Here's a related story in USA Today.
Monday, December 17, 2012
The Labor Department announced this past Thursday, the members of the new Whistleblower Protection Advisory Committee. The Committee wll consult with DOL on ways to improve an array of federal government whistleblower programs.
A number of law professors are members of the Committee, representing the general public. They include: Richard Moberly (Nebraska), Committee Chairwoman Emily Spieler (Northeastern), and Jonathan Brock (retired University of Washington).
For more information about the Whistleblower Protection Advisory Committee, you can read the DOL website page on the Committee (which comes under the jurisdiciton of OSHA).
Wednesday, October 31, 2012
Orly Lobel (San Diego; photo not at left)) sends word that Eric Tucker (York - Osgoode; photo left) has posted to SSRN his article Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom. Orly points out that the article "is a nice engagement with the new gov[ernance] debates and with recent osha developments". Here's the abstract:
New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the 1972 Robens Report, Safety and Health at Work. This included its critique of command and control legislation and its emphasis on the need to develop better self-regulation. This paper critically examines new governance models in OHS regulation. In the first part, I construct some ideal types of OHS regimes based on three variables; state protection, worker participation and employer management systems. These are used as heuristics in subsequent discussion. The second part briefly discusses the roots of new governance in the Robens report (referred to as ‘old’ new governance) and briefly reviews Ontario’s experience with it, to examine its dynamics and its vulnerability to regress toward neo-liberal self regulation/ paternalism in the absence of effective worker OHS activism . In part three, I focus on recent work by two North American new governance theorists, Orly Lobel and Cynthia Estlund, who consciously wish avoid a collapse of new governance approaches into neo-liberal self regulation/paternalism. I argue that despite their aspirations, the new governance prescriptions they embrace are unlikely to be institutionalized with the protective conditions they advocate and that their emphasis on self-regulation valorizes a movement toward the destination they wish to avoid. Finally, I ask whether degradation toward neo-liberal self-regulation/paternalism is inevitable and if not whether a progressive new governance theory is possible and has anything to offer toward strengthening a regime of public regulation under the unfavourable conditions that prevail today.