Labour Law Scholarship: Doorey's New Article on Workplace Law Reform

One of my goals on this blog is bring labour and employment law scholarship to the great masses. That’s why I maintain this page of labour/employment law scholars, and why I promote new publications. In that vein, I’m introducing my new article, which will be published in a slightly revised form (after edits) in the near future in the Osgoode Hall Law Journal.  It’s a paper I presented at Cambridge University in England earlier this fall.
The draft version of the paper is available here for free download. It is called:

“Good Employer, Bad Employer:  Insights from Decentred Regulation for Improving Employment Standards Compliance”

Overview of Ideas in the Paper
Much of the paper describes a strand of legal theory called “decentred regulation“, which argues that sometimes simply ordering businesses to do things (“pay the minimum wage”) under threat of an order to comply, or perhaps a fine, is not a very effective way to get those businesses to comply.  The persistently high levels of non-compliance with employment standards laws provide a real life example of that thesis.
‘Decentred’ regulation theory argues that sometimes you can get businesses to comply with legal rules more effectively by changing the way that the rules are perceived by the businesses.  The trick is to find legal signals that will cause business leaders to perceive personal or business value in compliance–to make them want to do what the government wants them to do, not because they are afraid of a fine, but because it makes good business sense to comply.
In my paper, I argue that one way to do this in employment law is to create clearer incentives to comply with employment standards, and higher risks for non-compliance.  The most novel idea put forward in the paper is that non-compliance with a bundle of important rules in employment regulation (like minimum wage, overtime pay, and unfair labour practices) should be remedied not just with the usual order to comply and to give back pay, but also with a new system of rules for governing union organizing campaigns. “Bad” employers, who cannot even comply with basic employment regulation, should have fewer rights to resist the efforts of their employees to obtain assistance in the form of collective bargaining.
This is called a “Dual Regulatory Stream”:  Responsible law abiding employers are governed by a system of rules that gives them the right to campaign against unionization, to restrict access to employer property by union organizers, and to insist that employee wishes about unionization be tested in a mandatory certification vote.  In other words, the existing labour law system continues to apply to them.
However, irresponsible, Bad Employers, have demonstrated a lack of concern for their employees’ welfare.  The state should pay special attention to them, and their rights to interfere with employee efforts to access collective bargaining should restricted.  Once found in violation of the targeted laws by a Tribunal, Bad Employers should: lose the right to campaign against unionization, be required to permit union organizers access to the property to meet with employees, be governed by a ‘card-check’ union certification model rather than a mandatory vote model, and be subject to a form of fast-track first contract arbitration.
For law-abiding employers who already take employment regulation seriously, nothing changes under this model.  For that reason, this is a quite modest proposal, which also makes it somewhat pragmatic politically.  Their employees can still unionize under the rules already in place.  On the other hand, for employers who are prepared to violate employment regulations, there is a greater risk of being unionized under this model.  Why should a law-breaking employer be treated exactly the same as law-abiding employers?
The Dual Regulatory Stream approach would motivate many nonunion employers to pay much greater attention to employment regulation, in order to access the rights to participate in the unionization campaign afforded to only law-abiding employers, and to avoid a card-check and first contract arbitration.  Many of those employers will now be more motivated to learn about and comply with employment  laws.  The employees of those that do not comply will have easier access to the protections afforded by collective bargaining.  Moreover, under this model, unions and worker advocates will be incentivized to search out nonunion employers that violate employment laws, since they would be rewarded for their efforts by a more favorable union organizing climate.

This is just one idea that flows from the ideas in the decentred regulatory literature.  It is a controversial idea, and some people have criticized me and the paper on a number of grounds. Can you think what those grounds might be?  Some of the criticisms are valid, and I ackowledge them in the paper.  On the other hand, others have praised the ideas in the paper as a useful basis to begin a dialogue about how to re-imagine the ways that laws can be used to influence employer behaviour. For example, see this review by Professor Mike Zimmer of Loyola Law School in Chicago of an earlier draft of the paper.

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