Just the Facts: The Case for Workplace Transparency

Abstract

In many areas of regulation, mandating disclosure of information about a firm’s products, services, production processes, or governance is said to improve the efficiency and rationality of market decisions, avoid fraud, and advance public regulatory goals, all without intruding significantly upon the autonomy of market actors. Yet the idea of regulating through information disclosure has made barely a cameo appearance in the field of labor and employment law. This article begins to fill that void. Mandatory disclosure is no panacea; it may be an overused policy tool in many areas. But in the law of work, mandatory disclosure can play a supportive role both within the ambit of existing substantive mandates and among the many terms and conditions that are above or beyond the reach of substantive mandates. Within the domain of mandatory legal rights or minimum terms, mandatory disclosure may help to improve compliance. Within the large domain that is left to private ordering, mandatory disclosure can improve the operation of labor markets by better informing employees’ choices among and bar-gains with employers. And where neither mandates nor markets meet public aspirations for more socially responsible, fair, and egalitarian workplaces, mandatory disclosure may help to press firms to reach beyond compliance by strengthening and broadening the factual foundation for the reputational rewards and sanctions that are an increasingly significant driver in organizational behavior.