Lifting the Private-Law Veil: Employer Authority and the Contractual-Coating of Worker Subordination

Abstract

Despite the notion of subordination in work relations and the subjection of workers to the managerial prerogatives of employers have received significant consideration and discourse since the outset of labour law, critical examinations of the underlying foundations of such subordination and subjection in contemporary democracies founded on the rule of law remain scarce. This article wants to prompt a novel reflection on these issues, starting with a historical analysis of their origins and a renewed understanding of their legal background. It opens by discussing some outstanding issues concerning work subordination that are not adequately captured by the classic theory of the firm. It argues that the free nature of the individual negotiation of work arrangements at the dawn of industrialisation must be called into question from a legal perspective and highlights how disciplinary approaches to societies and work have materially shaped those arrangements. It then discusses the historical foundations of employer authority and worker subordination in what evolved into the modern contract of employment in various jurisdictions. It contends that, despite this authority and subordination being “coated” in contractual and private-law guises to make them acceptable for the public discourse, their origins are rooted in public law and action, sometimes with overtly authoritarian aims. It, then, argues that acknowledging the public origins of employer powers should prompt an intensified scrutiny of employer choices beyond what courts are ready to do for managerial conduct that falls short of meeting standards for harassment, constructive dismissal or resignation for cause. It concludes by outlining potential avenues for future research on how the “personal work approach” may offer insights into questioning worker subordination in contemporary democratic societies. This article is forthcoming in a special issue of the Comparative Labor Law & Policy Journal titled "New Perspectives on Worker Subordination", edited by Valerio De Stefano, Sara Slinn, and Eric Tucker.

Keywords: labour law, the law of work, non-domination, subordination, contract of employment, managerial prerogatives, employer and managerial authority, private government, personal work approach

JEL Classification: J23, J42, J51, J58