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Open Access Publications from the University of California

The Future of Labor and Employment Law in the United States

  • Author(s): Stone, Katherine
  • et al.

There is a serious problem with the labor and employment law system in the United States today. Unions have declined to the point where they represent less than 8 per cent of the private sector workforce, employee wages have stagnated for more than three decades, employers are cutting back on workers’ health insurance and pensions, and there is a dramatic growth in the numbers of the working poor. At the same time, there has been a rising chorus of complaints from labor scholars that the labor law has become “ossified, that the law is failing to offer meaningful worker protection, that the courts and Labor Board have abandoned the “core values of labor law,” and that Congress has defunded the labor protective agencies such as the National Labor Relations Board (NLRB), the Occupational Safety and Health Administration (OSHA), and the Hour and Wage Division that administers the Fair Labor Standards Act (FLSA). Indeed, some have contended that over the past two decades, there has been a passive repeal of the employment statutes.

There is a reason that the field of labor and employment law – both as an academic subject and as an arena of social life – has declined. That is that the labor and employment laws do not address the concerns or vulnerabilities of the majority of the workforce today. Work itself is a prominent aspect of social life, but the regulatory framework governing the workplace is quickly becoming irrelevant.

The question that needs to addressed is, how did the system come to this state and where is it going? In order to consider the future, one must develop an analytic and dynamic understanding of the present and the past. A future-oriented interpretation of the present and the past can help identify trends, provide a basis for critique, and point in some constructive directions. Hence I begin my discussion of the future of labor and employment law with a brief overview of where U.S. labor and employment law came from and what it is has become today. Then I offer some predictions or hypotheses about where the field of labor and employment law is going.

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