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ARTICLE CONTENTS
[Pages 351-461]
TOP OF ARTICLE
Introduction
I. Legal Regulation of the Workplace—1950
A. Introduction
B. The At-Will Sector
C. The Unionized Sector
II. The Legal Regulation of the Workplace—2000
A. The Decline of American Unions
1. The Numbers
2. Reasons for the Decline
a. The New Global Economy
b. Changing Workforce Composition
c. The Increase in Contingent Work
d. Employer Opposition to Unions and Deficiencies in the NLRA’s Regulatory Structure
e. The Nature of American Unionism
f. Rugged Individualism
B. The Decline of the At-Will Rule and the Rise of Governmental Regulation
1. Limitations on the At-Will Rule
a. Statutory Regulation
i. Antidiscrimination Statutes
ii. Substantive Statutory Regulation
b. Judicially Created Limitations on the At-Will Rule
c. Constitutional Limitations in the Public Sector
i. First Amendment
ii. Due Process
iii. Equal Protection
2. Reasons for the Regulatory Boom
a. The Changing Nature of the Workplace
b. Employee Expectations and the Decline of the Social Contract
c. The Rise of the Nondiscrimination Principle
d. The Lack of a Viable Union Alternative
C. Summary
III. Principal Deficiencies of the Current Regime
A. Lack of Doctrinal Coherency
B. The Maze of Multiple Claims and Forums
C. Administrative Burdens of the Litigation Enforcement Model
D. The Lack of a Unitary Standard for Employment Termination
E. A Deficient Federal Labor Law
1. Lack of Choice
2. Lack of Voice
F. Contingent Work—The Black Hole of Workplace Regulation
IV. Four Proposals for Systemic Reform
A. Recommendation #1—An American Employment Security Act
1. The Model Employment Termination Act
2. Rebalancing META’s Attempted Compromise
a. Broadening META’s Preemptive Scope
b. Scaling Back META’s Remedies
B. Recommendation #2—Level the Labor Law Playing Field
1. Facilitating Free Choice in the Representational Process
2. Facilitating First Agreements
3. Restricting the Use of Permanent Replacement Workers
C. Recommendation #3—Provide Employees a Works Council Form of Collective Voice
1. A Full or Partial Repeal of Section 8(a)(2)
2. Works Councils
D. Recommendation #4—Enhancing Employment Protection for the Contingent Workforce
1. Expanding the Reach of Employment Protection Statutes
2. Enhancing the Option of Collective Bargaining for Leased Employees
3. Increasing the Portability of Benefits
Conclusion
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