Workplace Federalism: 'The True Irony of Workplace Law: Less is More' and 'Paper Rights or Real Rights?'
Jeffrey M. Hirsch
University of North Carolina School of Law
December 7, 2008
University of Pennsylvania Law Review PENNumbra, Vol. 157, 2008
University of Tennessee Legal Studies Research Paper No. 1312570
In a decision from the last term, the Supreme Court held that a state law prohibiting the use of state funds by employers for both anti- and pro-union advocacy was preempted by federal law. The Brown decision sparks this debate between Professors Paul M. Secunda and Jeffrey M. Hirsch, as to whether the federal government or the states are best equipped to protect the rights of workers under the law.
Professor Secunda argues that federal regulation enacted to protect workers in the workplace has suffered from lack of enforcement and political bias. Thus, because "the federal government... has proven unwilling and unable to protect the basic rights of workers," he maintains that "state law should be permitted to play a complementary role in all of the areas of workplace regulation where federal law is silent or absent." Individual states, then, could act as "laboratories" that could "engage in thoughtful, legislative experimentation." Finding the idea of an exclusive federal scheme likely to result in "self-selection bias and inefficient prioritization of agency resources," he concludes that needed regulation may only be available to the states.
Professor Hirsch counters that Professor Secunda's proposal would exacerbate the problems with the current underenforcement of workers' rights, which at least partly results from the complexity created by a regulatory framework made up of federal, state, and local law. As a solution, Hirsch proposes that the federal government should be given exclusive control of the workplace, under a single system of enforcement and regulation. His suggested changes include a single workplace law statute, a single agency to administer that statute, and a litigation-based enforcement approach that includes the creation of private-rights of action for violations and the creation of a specialized Article III labor and employment court. Thus, while conceding that "the federal government's regulation of the workplace has been far from perfect," he argues that "it is a far better choice than fifty different state regimes."
Number of Pages in PDF File: 25
Keywords: federalism, employment, workplace
JEL Classification: J70, K31, K19, K23, K32, K42Accepted Paper Series
Date posted: December 8, 2008 ; Last revised: January 26, 2009
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