Friday, February 26, 2010
Anne Marie Lofaso (West Virginia) has just posted on SSRN her article (forthcoming 14 Employee Rights and Employment Policy J.) Talking is Worthwhile: The Role of Employee Voice in Protecting, Enhancing, and Encouraging Individual Rights to Job Security in a Collective System. Here's the abstract:
In this tribute to Clyde Summers - my teacher, my mentor, and my former employer - I use notes that I took during labor law class (in the spring semester 1989) and also draw upon memories of our numerous conversations to show the extent to which Professor Summers influenced my thinking about job security. “Talking is worthwhile” - or so preached Summers. Using that idea as my springboard, I trace the various incarnations of the law’s treatment of job security in circumstances of economic distress. In addition to providing unemployment or other post-termination benefits, I demonstrate that the law can have various pre-termination roles that range from least to most cooperative between the parties. These roles include the following: do nothing to notify workers of an impending layoff to furnish workers with information relevant to an impending layoff to compel employers to consult or bargain with employees’ representatives with a view to(ward) reaching agreement to compel the parties to co-decide what to do in these situations. After comparing United States federal law (which in many cases mandates advance notification, information exchange, effects bargaining, and sometimes even bargaining) with the European Union’s collective redundancies directive (which compels pre-decisional consultation among the parties with a view to reaching agreement), I reason why “talking [before the layoff] is worthwhile.” I conclude by showing how my preferred solution - to extend mandatory, pre-decisional bargaining (or at least consultation) over mass layoffs and plant closings to nonunionized workers - effectuates national labor policy as Professor Summers understood it. My simple solution - to give employees voice - also empowers workers to take control of their destinies by helping them to save their jobs and the businesses that employ them when both worker and firm are most vulnerable. Accordingly, my solution both dignifies workers and encourages them to become autonomous agents of their working lives - foundational values in a human-rights approach to labor and employment law.