Reconstituting the Law of the Workplace in an Era of Self-Regulation


As the reach of collective bargaining has shrunk in recent decades, the domain of employment law – of judicially-enforceable individual rights and administratively-enforced regulatory standards – has expanded. Both branches of employment law have seen the rise of employer “self-regulation” – internal systems for enforcement of rights and regulatory standards – and of legal inducements to self-regulation in the form of reduced public oversight or sanctions. In the shift from “self-governance” to “self-regulation,” employees have lost their institutional voices and are losing the protective oversight of courts and public agencies. In this article Professor Estlund looks for ways not to combat the movement toward self-regulation – which she finds both inexorable and potentially promising – but to channel that movement so as both to fortify employee rights and labor standards, and to give employees a stronger voice in their own work lives and workplaces. Drawing on a range of regulatory theory and experience, Estlund casts outside monitors – independent of employers, accountable to employees and the public – in a central role in a system of “monitored self-regulation.” Employees play essential supporting roles as whistleblowers, informants, and watchdogs; and targeted public enforcement and private litigation supply much of the impetus for effective self-regulation. The article aims to bridge the divide between labor law and employment law – to find leverage within the dynamic law of workplace rights and regulations for the rejuvenation of employee voice, and to use new forms of employee voice to help realize workplace rights and improve labor standards.


Labor and Employment Law | Law and Society

Date of this Version

August 2004