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.
Amanda Jaret –
For those of us who are interested in law and political economy, seeing a political philosopher of Elizabeth Anderson’s stature dedicate her Tanner Lectures to labor issues is deeply gratifying. In the lectures, Anderson forcefully argues that the state plays a constitutive role in shaping the “private government” of the workplace by establishing rules that preserve space for employers’ exercise of “private, arbitrary, unaccountable” power over workers. As a participant in the “marginalized academic subfields” of labor law and labor history—which Anderson notes are among the only disciplines which consistently raise questions about the normative implications of power disparities in the workplace—I think she is to be commended for addressing the curious invisibility of employers’ regulatory authority over workers’ lives and its broader implications for those who share Anderson’s egalitarian commitments. Nevertheless, I worry that Anderson’s analysis ultimately misses the mark, because it pays insufficient heed to structural economic changes that have transformed “private government” in the past few decades, with consequences that threaten the viability of her vision of ensuring worker voice in the governance of private firms.
Anderson’s discussion of the role of the state in establishing the background norms that permit private government to flourish is a welcome intervention. By underscoring that policies like the employment-at-will rule are neither natural nor inevitable, she opens space for serious consideration about how a different set of norms, like a state law protecting employees from discharge except for just cause, might shift the balance of power. And for those who follow developments at the intersection of labor and constitutional law with attention, one particularly trenchant facet of Anderson’s argument—that “[p]rivate governments impose controls on workers that are unconstitutional for democratic states to impose on citizens who are not convicts or in the military”—will sound familiar.
That asymmetry has led the Supreme Court to treat many kinds of labor speech directed towards private employers less favorably than other, similar forms of protest. The ascendant “deregulatory First Amendment” has halted various efforts to urge the state to impose limits on the power of private government. Other efforts to locate constitutional limits to private employers’ power have similarly foundered. For instance, as Anderson alludes and as James Gray Pope has frequently argued, the Thirteenth Amendment has seldom been invoked and remains a potential source of worker associational freedom. While there are reasons to doubt that state action will fundamentally alter the relationship between private employers and labor, arguments about the potential for limiting private government through constitutional or statutory change are worth revisiting, and Anderson has given us vocabulary which could prove useful in pursuing them.
Anderson points to the Industrial Revolution as the period when the balance of power between workers and bosses shifted definitively and only briefly addresses the seismic changes in workplace relations that have occurred since the 1970s. Anderson explains that prior to the Industrial Revolution, self-employment was an attainable ideal for many, while after, the accelerating pace of industrialization led to the triumph of large enterprises and diminished opportunities for workers to become self-employed. While the transformation of the workplace during the nineteenth century was surely a “cataclysmic event for egalitarians,” as Anderson argues, the 1970s mark another point of rupture. As many commentators have observed, the decades of growth and prosperity beginning in the postwar era abruptly ended in the mid-1970s. The resulting shift away from large-scale industrial enterprise, coupled with a newly resurgent hostility toward trade unionism, have played a significant role in undermining worker voice and have only exacerbated the disparities Anderson illustrates. And if the nineteenth century ushered in a variety of total social institutions (like factories, hospitals, and prisons), the twenty-first century economy is increasingly characterized by subcontracting, just-in-time production, and the return of piecework mediated by gig economy platforms—or what David Weil calls the fissured workplace.
It’s not clear how well Anderson’s account of private government fits the diffuse power relations that characterize contemporary workplaces. The lectures’ framework tacitly assumes that most private employers are large, vertically integrated enterprises, and Anderson’s conception of an employer’s “arbitrary, unaccountable power” almost always envisions its exercise by a unified, identifiable subject. While Anderson correctly diagnoses the effects of arbitrary employer power, especially in her discussions of employer regulation of employees’ off-duty conduct, identifying the source(s) of private government is often challenging, given the increasingly decentralized character of control in the workplace. In the fissured workplace, the structures through which employers exercise authority may thwart workers’ efforts to achieve greater bargaining power or make efforts to share authority futile. And, even when it is possible to clearly locate power within a firm, the shift away from large-scale production has been accompanied by changes in management practice and theory that aim to institutionalize the most autocratic varieties of private government.
While Anderson does not set out to provide comprehensive alternatives or programmatic guidance, she urges that any redress for the problem of private government must include enhanced opportunities for worker voice, not just the availability of an exit option. Yet she expresses a surprising hostility towards collective bargaining, critiquing the “inefficiencies” imposed by labor unions due to their “monopoly power” and their “adversarial stance toward management.” Even accepting the dubious premises of this argument, with private-sector union density at just under 7 percent, it’s a strange concession to suggest that we might soon reach a state of affairs in which worker voice is too powerful a counterweight to private government.
By contrast, the workplace constitution Anderson favors is one “in which workers have a nonadversarial voice in workplace governance, without raising concerns about monopolization,” which she acknowledges is contrary to the National Labor Relations Act’s prohibition of company unionism. She also cites the German system of codetermination as a potential model to emulate. As an initial matter, there is good reason for the NLRA’s restriction on company unions. “Nonadversarial” models for giving workers voice are often illusory and can lull employees into a false belief that they have greater protection than they actually do against their employers’ exercise of unilateral authority. But even traditional bargaining models can run up against difficulties given the changes in the workplace outlined above. For this reason, additional vehicles for worker voice may more effectively address Anderson’s concerns about ensuring greater equality in the authority, esteem, and standing hierarchies that characterize the private workplace. Some of the more promising proposals include sectoral bargaining (which Anderson briefly mentions), the increased use of worker-operated hiring halls in industries characterized by unstable and temporary employment, and better enforcement of the NLRA right to engage in protected concerted activity which most private-sector workers already possess.
Anderson’s lectures offer a new and valuable framework for contesting employers’ power to regulate workers’ lives. But because the private government(s) of the twenty-first century no longer resemble the unified, centralized institutions Anderson seems to have in mind in her lectures, workers will need to employ increasingly creative, innovative strategies for harnessing their collective power if they are to have an effective voice in the workplace.
Amanda Jaret is a staff attorney at the National Labor Relations Board.