Employment Law and Social Equality
2013; University of Michigan Law School; Volume: 112; Issue: 2 Linguagem: Inglês
ISSN
1939-8557
Autores Tópico(s)Corporate Law and Human Rights
ResumoWhat is the normative justification for individual employment law? For number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies-and that it is justifiable even if it imposes meaningful costs on employers.This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers' privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.INTRODUCTIONLast fall, as the presidential election campaign raced to conclusion, the New Republic reported that Murray Energy, large coal mining company, ha[d] for years pressured salaried employees to give to the [company's] political action committee (PAC) and to Republican candidates chosen by the company.1 According to that report, [i]nternal documents show that company officials track who is and is not giving,2 and that the company's CEO, Robert Murray, took an intense personal interest in which employees gave money.3 The report anonymously quoted two individuals who had worked as managers at the company to the following effect:There's lot of coercion, says one of them. just wanted to work, but you feel this constant pressure that, if you don't contribute, your job's at stake. You're compelled to do this whether you want to or not. Says the second: They will give you call if you're not giving. . . . It's expected you give Mr. Murray what he asks for.4When Governor Romney visited coal mine operated by Murray-owned company for rally, company official acknowledged that workers were told that attendance at the event would be both mandatory and unpaid.5Are Murray Energy's activities, as reported by the New Republic, troubling? If so, why? In this Article, I argue that those activities are, indeed, troubling, and that understanding why reveals high-level normative principle that can help us explain, justify, and critique the broad sweep of individual employment law.6The problem with Murray Energy's reported activities, I submit, is that they threaten social equality. Social equality, as described by number of scholars, seeks a society in which people regard and treat one another as equals, in other words society that is not marked by status divisions such that one can place different people in hierarchically ranked categories.7 Murray Energy's reported activities threaten social equality because they enable the company to transform its economic power over its employees into an additional voice in the political realm. And that additional voice enhances the company's political power while at the same time squelching the political power of its employees. To the extent that employment law limits activities like the ones in which Murray Energy reportedly engaged-and employment laws in many states do limit these activities-the law serves social equality. To the extent that the law does not limit those activities, social equality perspective suggests that it should. …
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