Abolish the Employer Prerogative, Unleash Work Law

Source: Gali Racabi, Berkeley Journal of Employment and Labor Law, Forthcoming, Date Written: March 9, 2021

From the abstract:
Employers are sovereigns in their workplace. Market power disparities, enforcement gaps, and the dwindling power of the beaten US labor movement seem to guarantee that. But it is law that anoints employers as kings. Work law doctrine calls it the “employer prerogative,” and it stands as the default governing rule in the workplace. This rule lays the basic legal structure of the workplace: all decisions fall within the employer’s discretion unless altered by contractual agreements or mandated differently by a statute or court doctrine. The entire array of legal interventions in the workplace, and their accompanying normative debates, flows from this legal rule.

This Article calls to abolish the employer prerogative. It is too sticky, and subsequently, it skews all of work law theory and practice toward management interests. The Article begins by describing how the cumulative effects of a judicial presumption of prerogative, labor market power disparities, the employment at-will doctrine, and enforcement gaps make modifying this default a Sisyphean task. The argument follows by describing two mechanisms that tie the employer prerogative to the uphill political struggle of redistributing power in the workplace. To preserve their control, employers can use their prerogative to evade workplace interventions or punish workers and their communities for pursuing redistributive workplace policies. At the expense of any goal work law advocates might pursue, the employer prerogative is self-entrenching.

Perhaps the most troubling aspect of this default rule is that challenging it is a taboo of a sort. Hence, the Article concludes by offering a novel framework for considering possible alternatives to it. The Article describes alternative default governance rules and presents a set of new and renewed legal institutions designed to reallocate these default authorities among multiple stakeholders. These novel interventions offer the structural analysis and remedies vitally needed to correct the workplace’s skewed status quo of power and to actualize work law’s potential – unleashing it from its employer prerogative constraints.