Taking Self-Regulation Seriously: High-Ranking Officer Sanctions for Work-Law Violations
Berkeley Journal of Employment and Labor Law, Vol. 32, No. 2, p. 279, 2012
68 Pages Posted: 6 Mar 2012
Date Written: March 5, 2012
Work law confronts a vexing enforcement gap. After decades of employer-side pushback and doctrinal erosion, the traditional mechanisms through which labor and employment protections have been enforced — command-and-control regulatory oversight and private litigation — now fall short in large sectors of the economy. And unions, once a powerful check against employer overstepping, are absent in the vast majority of workplaces and weaker where they still exist. The result is widespread noncompliance, particularly at the low end of the labor market.
As the traditional approaches to enforcement have waned, self-regulatory alternatives to fostering legal compliance have gained traction in both theory and practice. Yet, despite their rhetorical appeal and likely staying power, they, too, have failed.
This Article traces the decline of the traditional mechanisms for enforcing workplace rights and diagnoses the failure of existing self-regulatory regimes. It then proposes a different strategy for enhancing compliance within firms: imposing “professional-like” supervisory duties on high-ranking corporate officers to ensure firm compliance with work-law standards. Existing self-regulatory models fail precisely because receding oversight and enforcement risks render their inducements too weak to ensure genuine self-regulation. But the principal decision-makers within these firms would approach compliance with far greater vigor if they were bound — personally — to do so. In an era in which the shortcomings in external enforcement are unlikely to be eliminated, supplementing firm-level accountability with a carefully calibrated regime that targets firm decision-makers themselves offers a potentially effective and cost-efficient way to promote greater adherence to work-law mandates.
Keywords: employment, work law, labor law, self-regulation, officer liability, new governance, wage and hour, workplace safety, enterprise liability, vicarious liability, antidiscrimination, employment discrimination, compliance
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