Know Your (Lack of) Rights: Reexamining the Causes and Effects of Phantom Employment Rights

Source: Ian H. Eliasoph, Employee Rights and Employment Policy Journal, Vol. 12 no. 2, 2008
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The specter referred to is that of phantom employment rights – rights that the overwhelming majority of Americans believe protect them at the workplace but mysteriously vanish at the first instance of legal consultation. Over the last thirteen years, a number of empirical studies have established that most Americans overestimate the protective power of employment regulations. The studies further show that overestimation of employment rights is neither geographically bound nor demographically limited. These rather dramatic findings have received relatively little academic or popular attention, with the notable exception that their value has been seized upon with regard to the debate over the legitimacy of the doctrine of employment at-will (which had been justified on the grounds of implied consent to default contractual terms). Thus, long after the discovery of phantom employment rights, their causes remain relatively obscure and their doctrinal and social implications continue to be largely unexplored. Surprisingly, even in relationship to labor law’s favorite “who done it” mystery – uncovering the causes of the relentless decline in unions – phantom employment rights have almost entirely escaped suspicion and scrutiny.

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