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Friday, October 03, 2008

Squeezing Every Penny Out of Regulation

In his terrific book, Steven Greenhouse explores the challenges of workers across industries and classes. As Greenhouse explained in his respond to my previous post, the book is about many different types of squeezes, some about illegal practices by employers and some concerning the social norms that drive high-skilled workers to leading unbalanced lives. I think there can be a (limited) role for law with regard to the latter, particularly if we understand this imbalance as having a disparate impact on women. But I want to focus on the question of systematic and pervasive violations of existing laws, not the creation of new protections. Employment law, as my students this semester have already seen well, is a patchwork of state and federal common law, statutory law and constitutional law. There are plenty of laws and regulations on the books and plenty of contract and tort doctrines to work with in the absence of statutory protections. Almost anything that sounds intuitively as abuse or exploitation is already covered by the patchwork. Yet violations of these laws are highly frequent.

Non-compliance happens a lot at the bottom -- the most exploitative forms of illegal behavior. In the past decade, Greenhouse’s investigative journalism has been an essential part of developing our critical understanding of contemporary American work relations.  In the Big Squeeze he describes employers who force off the clock work, manipulate time sheets, misclassify employees in order not pay overtime, refuse to give breaks and lunches (Wal-Mart has gotten into alot of trouble recently with all of these), subject workers to unsafe and unhealthy environments, and even lock up their employee in extreme circumstances. But Non-compliance with existing laws is a widespread phenomenon not only in the most abusive setting but in all types of industries and work environments. An important lesson on which agencies are increasingly focusing their attention is that regulatory resources, always limited and few must be employed in a sophisticated and efficient manner, targeting those instances of non-compliance that are most urgent and severe. An agency strapped for resources, like OSHA, can in fact become more effective if it diversifies its regulatory approaches (envisioning “new governance” approaches, if you will) so as to apply its traditional command and control powers to those workplaces that are the riskiest and where employees are most vulnerable, while at the same time building more collaborative, non-adversarial relations with industry partners who have the ability to self-monitor and improve their own compliance.

Differentiating between those who are true bad apples and those employers who simply run into occasional non-compliance because the regulatory requirements are complicated and burdensome is an important aspect of sophisticated regulation. Again, this is an area in which investigative analysis like Greenhouse’s, which highlight the nature of misbehavior along with the overarching culture of various workplaces and industries is helpful. Understanding motivation helps agencies interact with industry in ways that can save resources and harness positive corporate cultures to assist compliance. Finally, Greenhouse’s book highlights the many ways employees themselves could be better positioned to demand better work conditions. If new governance approaches mean decreased government control over work conditions at least in some areas and contexts, then envisioning an active role for employee monitoring, including whistleblowing and anti-retaliation protections, of corporate compliance becomes even more central.

Posted by Orly Lobel on October 3, 2008 at 10:55 AM in Orly Lobel | Permalink

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