A Labor Law for the Digital Era

Abstract

Key words laborlaw.employmentlaw.digitaleraThere is a serious problem with the labor and employment law system in the United Statestoday. Unions have declined to the point where they represent less than 8% of the privatesector workforce, employee wages have stagnated for more than three decades, employersare cutting back on workers’ health insurance and pensions, and there is a dramatic growthin the numbers of the working poor. At the same time, there has been a rising chorus ofcomplaints from labor scholars that the labor law has become “ossified” (Estlund 2002),that the law is failing to offer meaningful worker protection (Summers 1988; Gottesman1993), that the courts and Labor Board have abandoned the “core values of labor law”(Dannin and Bonior 2006), and that Congress has defunded the labor protective agenciessuch as the National Labor Relations Board (NLRB), the Occupational Safety and HealthAdministration (OSHA) and the Hour and Wage Division that administers the Fair LaborStandards Act (FLSA) (Dannin 2004; Brudney et al. 1999; McGarity and Shapiro 1996).Indeed, some have contended that during the past two decades, there has been a passiverepeal of the employment statutes (Hiatt and Becker 2005; Brudney 1996; Dannin andBonior 2006; Stone 1992).There is a reason that the field of labor and employment law has declined. Work itselfhas not declined in importance—it remains a central part of individual identity and aprominent aspect of social life, but the labor and employment laws do not address theconcerns or vulnerabilities of the majority of the workforce today. Instead, the regulatoryframework governing the workplace is becoming irrelevant.