Workplace Federalism: The Ironic Necessity for State Protection of Workers

Abstract:     
Although there is a palpable irony in turning to the States for assistance in protecting workers in the workplace, the federal government has proven unwilling and unable to protect the basic rights of workers. In such an environment, it is time to "employ" state legislatures to see if they can find the necessary balm for what ills the American worker in areas where federal labor law remains silent. To borrow the federalism conception of Justice Brandeis, by allowing states to operate as laboratories of experimentation today, workplace rights will not only flourish at the state level in the short-term, but also gain traction at the federal level for years to come.

This series of essays is part of a PENNumbra debate with Professor Jeffrey Hirsch on the need for state regulation of the workplace. I favor states playing a gap-filling role in workplace regulation where federal law is absent or silent and as part of their traditional role in legislating minimum condition laws to protect workers from inhumane working conditions. Professor Hirsch, on the other hand, seeks the complete eradication of all state workplace regulation and advocates an exclusive federal law regime. His hope is that such a new system will actually make workers better off because they will more easily be able to enforce their remaining rights in a less complex regulatory world.

The problem, however, is not one of complexity, but that federal agencies charged with carrying out the current law do not have the financial resources, the political will, or the administrative tools to implement, enforce, and adjudicate these laws. Eradicating state authority over the workplace will not only not solve the present-day enforcement issues that Professor Hirsch and I agree are very real, but will leave workers even more vulnerable to abuse as a result of fewer employment protections.

Keywords: workplace, regulation, federalism, minimum condition laws, working conditions

JEL Classifications: K19, K23, K32, K42

Accepted Paper Series