Abolish The Employer Prerogative, Unleash Work Law

Abstract

Employers are sovereigns in their workplace. While market power disparities, enforcement gaps, and the dwindling influence of the U.S. labor movement seem to guarantee that, it is the law that anoints employers as kings. Indeed, the “employer prerogative” stands as the default governing rule in the workplace: all workplace decisions fall within the employer’s discretion unless altered by a contractual agreement, statute, or other court doctrine. As a result, all legal interventions in the workplace, and the normative debates that surround them, must necessarily contend with the employer prerogative.

This Article argues that the employer prerogative should be abolished. The employer prerogative is too sticky, and consequently, it skews all of work law theory and practice toward management interests. The Article begins by describing how the cumulative effects of a judicial presumption of the employer prerogative, labor market power disparities, the employment-at-will doctrine, and enforcement gaps make modifying this default legal rule a Sisyphean task. The argument follows by analyzing two mechanisms that tie the employer prerogative to the uphill political struggle of redistributing power in the workplace—what I term the whack-a-mole effect and the regulatory cage-jeopardy effect. Together these mechanisms enable employers to use their prerogative to evade workplace interventions or punish workers and their communities for pursuing redistributive workplace policies. In effect, the employer prerogative becomes self-entrenching.

Perhaps the most troubling aspect of this default rule is that challenging it is taboo. Hence, the Article concludes by offering a novel framework for considering possible alternatives. The Article describes alternative default governance rules and suggests relying on new and renewed legal institutions to reallocate these default authorities among multiple stakeholders. These interventions offer the structural analysis and remedies vitally needed to correct the workplace’s skewed status quo of power and to actualize work law’s potential – unleashing it from its employer prerogative constraints.

Keywords: employment law, labor law, legal theory, progressive reforms