Labor & Employment Law

A radical proposal to nationalize workplace law

Jeffrey M. Hirsch, professor of law at the University of Tennessee College of Law, has just published Revolution in Pragmatist Clothing: Nationalizing Workplace Law.

Nationalize employment law? No way. For all its faults, the state-by-state development of employment law has been part of the genius of our federal system. This has seen the development of a series of torts favoring employees, a re-discovery of contract law, and several innovative ways to define rights and provide remedies. None of this would have occurred under a nationalized system.

Nationalization would take a rich tapestry of experiments and mold it all into one piece of blue denim. All you have to do is watch the eight-year-long drafting of the Restatement of Employment Law to realize that the inevitable compromises would yield one well-written pile of mush.

Plus this: Who believes that the national government has the necessary competence? Who believes that the EEOC is an effective organization? Who believes that we should put all of our eggs into one basket? Not I. Therefore, I respectfully dissent.

Here is a summary of what Professor Hirsch says:

The current workplace regulatory scheme is a vast patchwork of laws whose complexity undermines its own policy goals. Understanding this system requires knowledge of federal, state, and local rules that derive from several different sources including statutes, administrative regulations, and judicial decisions. Moreover, even similar laws frequently involve different requirements and multiple forums. Indeed, an identical set of facts can easily produce multiple claims, under multiple jurisdictions, and in multiple forums. It is not surprising, therefore, that most workplace laws have been a disappointment. They have built a broad system of promises that ultimately collapse under the weight of ineffective compliance and enforcement. Much of the problem with today's workplace laws is that they have developed virtually independent of each other. With few exceptions, most workplace rules were implemented at various points in time as a response to an immediate policy concern. That regulatory approach can be appropriate, but it raises the possibility?a possibility that has repeatedly been realized in the workplace context?that policymakers fail to consider each new law's interaction with the existing framework. Although a new law will frequently have little more than a marginal impact on the effectiveness of the regulatory system as a whole, the aggregate effect of such additions is a morass of requirements that is often impenetrable to the people the laws were intended to protect.

For instance, voluntary compliance is a central goal of most workplace laws, yet even good faith employers face significant costs in trying to understand and follow all of the relevant requirements. Even more imposing are the hurdles faced by employees. Employers' difficulties in understanding the multitude of complex workplace laws is dwarfed by the problems encountered by employees, who have far less time, resources, and knowledge than their employers. This information problem cripples employees' ability both to understand what rights they possess and to seek enforcement even when they are aware of unlawful activity. This complex and inefficient system of workplace regulations is suboptimal, as there are many reforms that could produce far more benefits than costs. Because the problems with this system are so severe, what is needed most is a radically new approach to workplace regulation. Policymakers should reevaluate the current fragmented approach and drastically revamp the entire workplace regulatory framework. In so doing, they should adopt a more pragmatic approach to policymaking. This regulatory pragmatism would demand consideration of how all of the various workplace laws fit together and what is needed to make enforcement of those laws effective. The proposed federal workplace code would be a broad culmination of such an approach. The new code would achieve more effective compliance and enforcement of current workplace regulatory goals through a dramatic simplification of existing rules. It would vertically integrate those rules by completely replacing state and local authority over the workplace with exclusive federal government control. Moreover, the code would horizontally integrate workplace rules within the federal system by consolidating requirements where possible, simplifying those rules that must stand on their own, and implementing a unified enforcement and administrative scheme. The new workplace regulatory system would be far easier to understand, to follow, and to enforce than the current system?an outcome that would achieve far greater fulfillment of the social goals that today's rules embody.

Even if such an ambitious reform never comes to fruition, any attempt to engage in more pragmatic decisionmaking would be a significant advancement for workplace law. Seemingly small improvements, such as better consolidation of related federal and state claims, reduction in disparate requirements for pursuing claims, and more consistency in various laws' coverage would produce substantial gains. In contrast, policymakers' failure to recognize that the goals of today's workplace laws are collapsing under their own weight threatens to accelerate that disturbing trend. The hope instead is that policymakers acknowledge these problems by taking a comprehensive and pragmatic reevaluation of the system as a whole. Only then will our system of workplace laws deliver on their many promises.

Full post as published by Ross' Employment Law Blog on January 19, 2009 (boomark / email).