This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.
Charles Du –
Every day, as in-house counsel for an activist, organizing union, I listen to workers’ stories of the indignities that come with being subject to the arbitrary power of their employers: being forced to work through breaks and lunch; facing sexual harassment from customers, coworkers, and supervisors; being fired for an offense they did not commit. It is gratifying to see these lived experiences of working people, so often ignored, being highlighted by a political philosopher of Elizabeth Anderson’s stature. By denaturalizing and challenging arbitrary and unaccountable authority in the workplace, Private Government is a powerful argument for an expansive commitment to democracy in private spaces like the workplace, where blinkered definitions of what counts as “government” have come to serve as ideological justifications for abuse and domination. Her book also comes at just the right time, providing conceptual clarity in a moment of rising social democratic sentiment and actual potential for change. I’d like to provide some reflections on practical lessons that labor law practitioners and academics might draw from Anderson’s work.
After laying out the problem of private government at work, Anderson examines four different strategies for tackling the problem: (1) exit, (2) the rule of law, (3) substantive constitutional rights, and (4) voice. She dispenses with the first three before concluding that “there is no adequate substitute for recognizing workers’ voice in their government.” I agree, but I believe that the critical question is how to achieve greater worker voice in the face of recalcitrant employer opposition, a problem that requires further attention to legal norms, constitutional rights, and worker exit.
Rule of law norms, to the extent that they are supposed to prevent arbitrary authority and secure due process rights, are virtually non-existent in low-wage workplaces in the US. The default rule of at-will employment means that employers need not provide any reason at all for terminating a worker. Supervisors have free rein to issue discipline, change schedules, and engage in favoritism. Even at highly organized, unionized workplaces, enforcing provisions of the collective bargaining agreement (CBA) against employer encroachment and infringement is a nearly-constant battle, given the strong norms of complete managerial authority that Anderson thoroughly describes.
CBAs can also be thought of as one mechanism for creating substantive constitutional rights at work – the various federal, state, and local employment laws are another. Yet as Anderson forcefully argues in her response to Tyler Cowen’s commentary, in which Cowen claims that the desire to attract and retain workers incentivizes employers to maintain pleasant and dignified working conditions, the sheer scale of sexual harassment, wage theft, workplace safety violations, and other abuses demonstrate that employment laws do not even guarantee a baseline of autonomy, standing, and esteem for many workers. Why have rule of law norms and substantive constitutional rights at work failed?
A general answer to this question may be found through elaborating on Anderson’s treatment of employee exit rights. She counters the free market argument that “wherever individuals are free to exit a relationship, authority cannot exist within it” by noting that exit “is an odd kind of countervailing power that workers supposedly have to check their bosses’ power, when they typically suffer more from imposing it than they would suffer from the worst sanction bosses can impose on them. Threats, to be effective, need to be credible.” Briefly, Anderson argues that until the early 19th century, exit from the wage labor market through self-employment was a “credible threat” available to many free Americans. Labor radicals of the period “saw access to self-employment as central to avoiding poverty and attaining standing as equals in society.” But the Industrial Revolution, along with the depletion of land available for homesteading, took this option off the table. From that point on, American workers have been trapped in the wage labor market, their power of exit limited to switching from one authoritarian workplace to another.
As Anderson points out, exit rights in the current economy have done little to prevent “private government” and its concomitant abuses at work. If that were the case, we would already be living in a free market utopian society, not one in which workers must sell their labor or starve. Indeed, we can understand the current balance of power, where employers trample over rule of law norms and workplace constitutional rights, as conditioned by weak worker exit rights. It is not that exit rights are only credible threats when self-employment is readily available—it is that exit rights must convey power to workers to be effective. Which brings us back to the question of how to secure a voice for workers in determining the conditions (and government) of their workplaces.
Worker voice can exist at the level of the workplace, firm, sector, or society. When organizing workers to assert their voice—in a union, through legislative advocacy, or through mass social movements—many factors stand in dynamic relation to one another. For example, indignities at work, such as an abusive boss, can serve to agitate and motivate individual workers to demand a voice and control over their working conditions. Rule of law norms and constitutional rights can help workers overcome these fears by endowing them with moral legitimacy, such as when an employer violates antidiscrimination law. Anderson’s framing of workplaces as private governments is another useful tool for legitimizing worker voice.
But many workers are afraid to assert their voice because they need a job to survive. Various factors affecting their exit rights, such as immigration status, racism and sexism, previous criminal convictions, and a simple lack of savings give many workers good reason to be risk-averse. Exit rights, as a proxy for worker power, are therefore a critical part of any effort to institutionalize worker voice. Seen in this light, it is easy to understand that any policies or efforts that bolster workers’ ability to quit their jobs, such as a federal jobs guarantee, a living minimum wage, and Medicare for All, will help create the conditions that make it possible for workers to have a voice. In contrast, policies that tie benefits to work or that reduce the ability of certain groups of workers to find jobs will have the opposite effect.
My emphasis on worker power as necessary for the realization of worker voice is not based on romanticized notions of class struggle or class conflict. Rather, it is the only realistic solution to the problem of how actually to achieve worker voice at every level of society. Anderson gestures toward a non-adversarial stance toward employers, citing the German model of codetermination as a positive example of a collaborative model of worker voice. But that system was itself the product of intense worker struggle. The very possibility of such cooperative structures between labor and capital are made possible because of worker power and militancy. After all, given how American employers disregard the basic dignity of their employees and openly flout employment and labor law, why would we think that they would willingly cede control to workers?
Charles Du is a staff attorney at UNITE HERE Local 11 in Los Angeles.