The four pillars of work law.

• Author: Lobel, Orly

EMPLOYMENT RELATIONS IN THE UNITED STATES: LAW, POLICY, AND PRACTICE. By Raymond Hogler. Thousand Oaks, California; London; and New Delhi: Sage Publications. 2004. Pp. ix, 301. $44.95.

FROM WIDGETS TO DIGITS: EMPLOYMENT REGULATION FOR THE CHANGING WORKPLACE. By Katherine V.W. Stone. New York: Cambridge University Press. 2004. Pp. vii, 300. $29.

In our contemporary legal landscape, a student wishing to study the law of the workplace has scarce opportunity to encounter an integrated body of scholarship that analyzes the labor market as the subject of government regulation, contractual duties, collective action, and individual rights. Work law developed in the American legal system as a patchwork of common law doctrine, federal and state statutes, and evolving social norms. Typical law school curricula often include courses relating to the four pillars of work law: "employment law," "labor law," "employment discrimination," and some variation of a tax-oriented "employee-benefits law." Employment law, in most categorizations, studies the boundaries of the individual employment contract, including contractual limitations, tort liabilities, and minimum protections. Labor law is the subject of collective bargaining between unions and employers, statutorily framed by the National Labor Relations Act ("NLRA"). Employment antidiscrimination law is the subject of status-based unequal treatment in the workplace, including on the basis of gender, race, national origin, disability, or religion. Lastly, the fourth category, employee-benefits law, involves the standards controlling the administration and taxation of social welfare attached to the work cycle, including unemployment benefits, pensions and ERISA, (1) health insurance and COBRA, (2) disability benefits, and worker compensation plans.

More than simply substantive divisions, these four categories are also stacked as historical developments in the regulation of work and vary in the public and private mechanisms each undertakes as means for social control. In other words, the subfields of work law correspond with ideas about modes of effective and legitimate social regulation, creating contrived form-substance alignments. While some questions have been resolved through legislation, other areas developed through ad hoc adjudication. Similarly, while some areas are federally regulated, other areas are controlled by state law. And while issues such as workplace safety are enforced by a public administrative agency, other issues, such as antidiscrimination claims, are enforced primarily by private litigation. Although the four pillars of work law have developed relatively independently from one another, the realities of contemporary work defy this fragmented structure and its conceptual satellites. The subjects and regulatory tools of all four subfields overlap significantly, and it is increasingly problematic to study them separately. In reality, legal disputes do not originate carrying a tag of one category or another. Workers experiencing dislocation or mistreatment seek assistance that transcends these divides and requires a more expansive outlook.

In search of an updated vision of institutional and policy reform that will match market realities, regulators and activists are increasingly skeptical of the fit between existing laws and categories and the new world of work. While many commentators have recognized the mismatch between existing policies and contemporary market realities, few have attempted to offer a restructured vision for the twenty-first-century law of the workplace. There are, however, two new books that envision updating employment and labor laws to match the new realities of work and welfare. The two books are innovative and original attempts to rethink public policy and the possibilities for collective and individual action for the twenty-first-century world of work, a reality very different from that which the New Dealers had in mind. Together, the two works enable readers to recognize patterns of policy reform as they unfold in reaction to changes in production and technology.

Professor Raymond Hogler's Employment Relations in the United States: Law, Policy, and Practice (3) (hereinafter Employment Relations) maps contemporary employment relations from a historical perspective. The book begins with a description of the evolution of collective bargaining from 1880 through the New Deal era, followed by an account of the shift from collective action to individual employee rights throughout the second half of the twentieth century. Hogler describes the major political and legislative events in these decades, including the passage of the Civil Rights Act, OSHA, ERISA, and the FMLA. (4) Each of these acts signified the transition from a concept of collective self-governance by workers to that of individual protections commanded by the federal government and enforced by administrative agencies and courts. Employment Relations analyzes the limits of these existing laws in the new political economy and suggests that in order to rebuild sustainable and just employment environments, a revival of worker collective action is crucial. Hogler's underlying political goal is to frame employment and labor laws in a way that illuminates their inherent connection to wealth distribution, status, and security.

Professor Katherine Stone's From Widgets to Digits: Employment Regulation for the Changing Workplace (5) (hereinafter From Widgets to Digits) analyzes the shift from twentieth-century industrial production to a twenty-first-century digital era. In this ambitious book, Stone sets out to interweave developments in production, technology, and globalization with changes in American labor and employment law. Written by one of the country's leading labor law scholars, the book provides an original and rich vision for the new frontiers of work law. Drawing on sociological studies, empirical data, and contemporary organizational behavior theories, the book proposes legal and institutional reforms that will address the challenges of increased flexibility, decreases in employee benefits, new forms of inequality, and worker representation. The book includes both a general framework for understanding the changing workplace and a study of particular areas in which existing regulation must be revised, including human capital ownership, employment discrimination, labor unionism, and benefit portability in social insurance. Stone successfully paints a picture of the new realities of work and their significant implications for public policy. Stone envisions a regulatory regime that will ensure the continuity of wages, sustainable and transferable skills, unambiguous ownership of workers' human capital and intellectual property, portable health and retirement benefits, and state-funded training and career transitions. Together, this updated set of policies and programs forms an updated progressive agenda for workplace justice.

These two bodies of work on the new labor market engage central debates about the relevance of the National Labor Relations Act to collective action in today's economy, the changing nature of rights at work including antidiscrimination, unjust termination, and social benefits (social security, pensions, health care)--and the role of the state in regulating the labor market as it becomes increasingly global. Both authors offer evolutionary and doctrinal explanations for the changing nature of employment relations and provide a lens through which we can understand and address the limits of existing policies. Both books will prove valuable for policymakers, activists, and students of the workplace.

1. THE TWENTY-FIRST-CENTURY WORKPLACE AND ITS DISCONTENTS

   The books trace the evolution of work relations through different periods, leading up to the contemporary workplace. In From Widgets to Digits, Stone divides the past centuries into three distinct eras: nineteenth-century artisanal production ("craft"), twentieth-century industrial production ("widgets"), and twenty-first-century digital production ("digits"). The American employment system originated from British master-and-servant law. During the eighteenth and early nineteenth centuries, work relations were based on the idea of prolonged status-based, and in some cases involuntary, servitude. Legal historians of the pre-industrial era describe employment as akin to family relations, in which status defined and determined relationships and powers. (6) Craft workers often self-organized as both producers and merchants, allowing them to operate in guild-like associations (Stone, pp. 13-26).

   In the late-nineteenth century, the labor market underwent profound changes as the economy moved to mass industrialization. The shift from small-scale craft and agrarian production to large-scale manufacturing and commerce meant that employment relations became more complex and impersonal, with layers of managers and supervisory positions. Work became organized in large assembly-line factories, and the modern corporation became the prevalent form of economic organization. Industrial production was characterized by narrowly defined menial jobs, strict managerial supervision, and centralized control over workers. Both books describe in some detail the origins of scientific management in the early twentieth century, a period that Hogler appropriately terms the "Era of Management" (Hogler, pp. 35-62). Work relations in the Era of Management were based on a social contract that promised secure, long-term, and full-time work. Promotion was made internally, assuring long-term job security and progressive seniority-based compensation structures. The post-war New Dealers relied on these assumptions of lifetime employment as they instituted a regime of collective bargaining and social security (Hogler, pp. 99-132; Stone, pp. 27-61).

   In recent decades, and accelerating in the 1990s, a new competing model of production...