A Return to Governance in the Law of the Workplace (and the Question of Worker Participation)

Abstract

Governance-based strategies of regulation, which seek to channel regulatory resources inside regulated entities, often with the help of non-state actors, toward the accomplishment of public objectives, are supplanting “command-and-control” strategies across many areas of regulation in much of the world. But governance-based regulatory strategies are not especially new in the labor field. Indeed, collective representation and bargaining in the workplace within a publicly administered legal framework – let us call it “Old Governance” – has many features associated with “New Governance.” In the U.S., which is the main focus of this article, the decline of Old Governance has coincided with the rise of new forms of governance-based workplace regulation, or “regulated self-regulation.” But the latter defy key prescriptions of New Governance theory, in which “good governance” means participatory governance; for they have mostly failed to incorporate any organized, collective voice for affected workers. Labor unions might supply that voice for some workers, but are unlikely to do so for the large majority of workers who need representation (for reasons that would be only partly addressed by labor law reform). Yet the labor unions’ attachment to collective bargaining and the goal of labor law reform, coupled with abiding employer resistance to any form of robust worker representation, has inhibited exploration of alternative forms of representation. The institutions and habits of Old Governance may thus be impeding the emergence of participatory forms of New Governance in the workplace.

Keywords: workplace regulation, workplace governance, collective bargaining, New Governance, labor regulation