Employee Self-Representation and the Law in the United States
Osgoode Hall Law Journal, Forthcoming
28 Pages Posted: 1 Mar 2013
Date Written: February 28, 2013
Individual self-representation has often been posited in neo-liberal theory as an alternative to collective representation. But little analyzed is the extent to which the law actually accords the individual agency – by giving space for the employee to act on her own behalf without employer sanction or by express provision for information-sharing and meaningful interaction. This article surveys the law; it finds it to be a “dog’s breakfast” with agency acknowledged, conferred, or negated depending on the issue the employee wishes to raise. In sum, the neo-liberal embrace of the individual is inconsistent with the law of employment that more often than not reduces the employee’s freedom to bargain to something “below zero.” The article adverts to other models in the common law legal family – in Australia and New Zealand – where self-representation is accommodated and speculates whether these could anticipate a more robust legal regime in the United States.
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