Title: Workplace Federalism: 'The True Irony of Workplace Law: Less is More' and 'Paper Rights or Real Rights?'
Abstract: In a decision from last term, Supreme Court held that a law prohibiting use of funds by employers for both anti- and pro-union advocacy was preempted by federal law. The Brown decision sparks this debate between Professors Paul M. Secunda and Jeffrey M. Hirsch, as to whether federal government or states are best equipped to protect rights of workers under law.Professor Secunda argues that federal regulation enacted to protect workers in workplace has suffered from lack of enforcement and political bias. Thus, because the federal government... has proven unwilling and unable to protect basic rights of workers, he maintains that state law should be permitted to play a complementary role in all of areas of workplace regulation where federal law is silent or absent. Individual states, then, could act as laboratories that could engage in thoughtful, legislative experimentation. Finding idea of an exclusive federal scheme likely to result in self-selection bias and inefficient prioritization of agency resources, he concludes that needed regulation may only be available to states.Professor Hirsch counters that Professor Secunda's proposal would exacerbate problems with current underenforcement of workers' rights, which at least partly results from complexity created by a regulatory framework made up of federal, state, and local law. As a solution, Hirsch proposes that federal government should be given exclusive control of workplace, under a single system of enforcement and regulation. His suggested changes include a single workplace law statute, a single agency to administer that statute, and a litigation-based enforcement approach that includes creation of private-rights of action for violations and creation of a specialized Article III labor and employment court. Thus, while conceding that the federal government's regulation of workplace has been far from perfect, he argues that it is a far better choice than fifty different regimes.
Publication Year: 2008
Publication Date: 2008-12-07
Language: en
Type: article
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