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Professor Cynthia Estlund (NYU Law) Gives Annual Innis Christie Lecture

The 5th Annual Innis Christie Lecture on Labour and Employment Law was presented last fall at Dalhouse Law School in Halifax.  The keynote speaker was my friend Cynthia Estlund of NYU Law School.

Innis Christie:  Canada's Leading Employment Law Scholar

Innis Christie: Canada’s Leading Employment Law Scholar

Professor Estlund was entitled “Employer Self-Regulation: Making a Virtue of Necessity?”  The talk draws on her work on New Governance in the law of work, a topic I also have written about.  A sample of Professor Estlund’s work on the topic can be found in this paper called “A Return to Governance in the Law of the Workplace”.  Or in this paper called Labor Law Reform Again? Reframing Labor Law as a Regulatory Project [my favourite, because it is the only paper I will ever read that has a heading called "The Doorey Proposal"!].

In fact, if you listen carefully, you will hear a shout out to your truly towards the end of her talk when she is discussing models of labour law reform that deploy New Governance strategies to both improve employment standards compliance and support collective bargaining. She is referring to my paper in the Osgoode Hall Law Journal called “A Model of Responsive Workplace Law”, if you are interested in this type of scholarship.

Here is the video of Professor Estlund’s Innis Christie Lecture.

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3 Responses to Professor Cynthia Estlund (NYU Law) Gives Annual Innis Christie Lecture

  1. Daniel Tucker-Simmons Reply

    March 12, 2015 at 2:34 pm

    “New Governance” sounds too much like “New Public Management,” (NPM) that cancerous outgrowth of neo-liberalism that has served as the basis for employment standards reforms in most provinces and at the federal level for decades. Couched in warm and fuzzy technocratic lingo, NPM seeks to neutralize the state’s ability to intervene on behalf of workers, instead relying naively on “mediation” and “self-regulation” to resolve employment disputes. The results have been catastrophic. In fiscal 2009-2010, for example, Ontario employers withheld over $62 million from their employees, mostly vulnerable workers, who were subsequently only able to recover a mere $14.8 million through the ESA’s enforcement mechanisms. And that is only the tip of the iceberg. These figures only represent sums actually discovered by ESOs in Ontario, and do not include the multitude of violations that go unreported every day. Ultimately, the consequence of NPM and the self-regulatory model has been a pandemic of noncompliance.

    Since beginning of the modern era, the state’s primordial role has been to mediate class tensions that arise from the unequal distribution of wealth. That role serves as the foundation of modern industrial pluralism, which itself permits the classes to live more or less peacefully.

    Self-regulation is synonymous with employer-regulation. It is pathetically impotent, and it does nothing but exacerbate the already-gargantuan socio-economic fault lines in Canada.

    Here is a shameless plug for my article on the topic, which I wrote for the Broadbent institute in 2013:

    http://www.broadbentinstitute.ca/sites/default/files/documents/open_for_business_closed_for_workers_-_employment_standards_legislation_in_canada_final.pdf

    • Doorey Reply

      March 13, 2015 at 12:43 pm

      Thanks Daniel. You are describing a straw man version of something someone may choose to call New Governance, but it is not what Cindy or I mean by it (I don’t actually use the term New Governance in my own work). Cindy is not talking about corporate self-regulation in the sense that corporations should be able to regulate themselves. She is talking about designing smarter laws that don’t just assume that employers will comply with a law out of fear of fines. You need to re-orietate legal signals so it makes greater sense to a business to comply than to not comply. My paper discusses a model in which an employer who violates the ESA and therefore has demonstrated that they are an irresponsible actor is met with a greater array of sanctions and mechanisms to protect employees, including the harnessing of non-state actors, in this case unions, towards achieving public policy goals of greater compliance. The state would fast track unionization for employees of ESA violating employers on the theory that these workers are most vulnerable and in need of collective bargaining. Union certification rules would be altered, including greater limits on employer voice to resist unionization, greater access to the workplace by union organizers, and the use of a card-check rather than a vote method. Employers earn the right to participate in a discussion about unionization by demonstrating compliance with legal rules. That model fits within what Cindy calls “New Governance”, but no one could suggest that it involves a lesser state giving employers carte blanche to violate ESA rules. Rather union averse employers would err on the side of ESA compliance in every case for fear of losing the right to legally resist unionization efforts.

  2. Daniel Tucker-Simmons Reply

    March 13, 2015 at 3:17 pm

    Hi David,

    Thanks so much for your thoughtful reply! That sounds pretty similar to what I have advocated: I call it “genuine self-regulation”, which is based on the notion that self-regulation is only possible in a unionized context where collective action can level the playing field. Naturally, the idea I’ve advocated is nothing more than a semantic rebranding of arguments in favour of trade-unionism, but I still think it’s accurate!

    I am also alive to efforts, especially in the US, to enroll civil society stakeholders to help enforce employment standards. One manifestation of those efforts has been to deputize stakeholders, including union volunteers, to conduct inspections of non-union workplaces. The idea behind it is that unions and other civil society actors have a vested interest in enforcement of standards because substandard workplaces undercut unionized employers and bleed union jobs. However, as much I appreciate the notions behind it, it is a model that still relies on volunteer labour, which itself is problematic; it smells much like the government trying to download (or abdicate) its enforcement responsibilities from good, often unionized government jobs onto unpaid, volunteer positions. I mean, from another light it could be characterized as simply leveraging civil society in order to exponentiate the government’s enforcement capabilities, but it would still be unpaid labour.

    Thanks again prof. Doorey. I look forward to reading your article! Best,

    Daniel
    Articling student at RavenLaw

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