A Vulnerability Approach to Private Ordering of Employment

by Jonathan Fineman

“2. Reconceptualizing the  employment  at-will  debate     

Instead of  continuing  to engage in  efforts to eliminate  the at-will rule, it might be more fruitful to discuss how to reform the American system to provide additional benefits and protections for workers. Such an approach  would  begin by addressing why it is imperative in the 21st century that employers assume some responsibility for the negative consequences their decisions have not only on their employees, but also on society.

To achieve this type of more balanced or socially equitable end, we do not need to completely rethink the employment relationship. In some respects, we can think of employment as partially a private or individual contractual relationship between employer and employee, recognizing the ability of the respective parties to shape their relationship to their mutual advantage. But recognizing the possibility of individualized negotiation does not mean that the contract aspects of employment relationships should dominate the approach to regulation. Employment is a social relationship that needs to be governed with a view towards social implications, not just private concerns.

Nor should recognizing that individuals can form contracts mean that employment law should impose an unrealistic and forced form of egalitarianism on the respective positions of the parties, assuming they are operating from exactly the same vantage points and, thus, face similar or equivalent constraints and consequences. The law must recognize there are relevant and significant differences between the positions of and possibilities for employers and employees both in their ability to bargain with each other and in their ability to successfully respond to such things as economic dislocations, market fluctuations or distortions, and disruption of “business as usual.”

What has been muted by the focus on private ordering is the recognition that the employer/employee relationship reflected in employment law is also the manifestation of social policy embedded within and inseparable from the interests of society at large. This has significant theoretical importance. Actual employment relationships not only reflect an agreement arising from bargaining on the part of the parties to that contract, but also reflect the realities and significance of employment law. It is law that forms the actual framework of most employment relationships by defining the default rules regarding the nature, limitations and consequences of that relationship for both employer and employee. In this way, the state plays a vital role in the shaping of all employment agreements and the nature of the subsequent relationships they enable.

Employment agreements should be further understood to address social relationships of interdependence – the interdependence of employers and employees upon each other, as well as the interdependence of society and its institutions on the successful operation of the fundamental societal relationships embedded in employment. European societies use human rights principles to give substance to the interconnectedness of societal interests with the employer/employee relationship. The US has not ratified these approaches, making it imperative to search for some alternative theoretical framework with which to address the employment relationship and its implications for society.”

from Vulnerability and the Legal Organization of Work

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