Employment Law


Death by inequality: How workers' lack of power harms their health and safety

Ann Rosenthal, former Associate Solicitor for Occupational Safety and Health at the Department of Labor

This paper focuses on the legal constraints on employers created by the Occupational Safety and Health Act of 1970 (OSH Act) and use some common examples to explore how, despite these constraints, employers retain considerable powers over their workers’ abilities to protect themselves from injury, illness, death, and loss of human dignity. 


Strengthening accountability for discrimination: Confronting fundamental power imbalances in the employment relationship

By Jenny R. Yang and Jane Liu

The promise of our nation’s anti-discrimination laws has not been fully realized because our current enforcement and legal system has failed to confront the fundamental power imbalance underpinning the employment relationshipAt the root of the problem is a system that places the primary responsibility for enforcing anti-discrimination laws on individual workers, who must file complaints with their employer or a government agency. 


FORTHCOMINGEmployer domination of free speech in the workplace

Charlotte Garden, Seattle University School of Law

“At-will” employment is sometimes shorthanded as employers’ rights to fire employees (and employees’ right to quit) for a bad or arbitrary reason, or for no reason at all.


Power in the employment relationship: Why contract law should not govern at-will employment

Julia Tomassetti, City University of Hong Kong

This paper examines the consequences of designating at-will employment a “contractual” relationship.


Lochner lives on: Lochner presumption of equal power lives in labor law and undermines constitutional, statutory, and common law workplace protections

Samuel Bagenstos, University of Michigan

In the early 20th century (the “Lochner era”), courts invalidated numerous labor and employment laws for violating a supposed constitutional “freedom of contract.” 



Identifying the policy levers generating wage suppression and wage inequality

Larry Mishel and Josh Bivens, Economic Policy Institute

There is now widespread acceptance across the political spectrum that the typical worker’s wages have grown very slowly or been stagnant for several decades but a consensus narrative explaining wage stagnation has not developed yet.


Risk without reward: The myth of wage compensation for hazardous work

By Peter Dorman and Les Boden

A small but dedicated group of economists, legal theorists, and political thinkers has promoted the argument that little if any labor market regulation is required to ensure the proper level of protection for occupational safety and health (OSH), because workers are fully compensated by higher wages for the risks they face on the job and that markets alone are sufficient to ensure this outcome.


FORTHCOMINGCompetitive markets and human capital theory fail to explain differences in black--white labor market outcomes

William Darity, Duke University, and Valerie Wilson, Economic Policy Institute
One of the most durable features of the U.S. labor market is the large and persistent disparities in unemployment and wages that exist between Black and white workers. Decades of official labor market statistics, empirical research and audit studies offer compelling evidence that these disparate outcomes are the result of persistent racial discrimination in the labor market. Yet, conventional economic theory posits that competitive markets will eliminate discriminatory outcomes in the long-run, and observed differences in labor market outcomes are primarily explained by individual differences in productive capacity.  Darity and Wilson present empirical evidence which stands in contradiction to the economic theories most often invoked to explain observed racial differentials in wages and employment — human capital theory, taste-based models of discrimination and statistical models discrimination — making a case for stratification economics as a more appropriate framework for understanding the imbalance of power inherent in the social structures that perpetuate racial inequality in labor market outcomes.


Gender inequality and bargaining in the U.S. labor market: Why care work is undervalued

Nancy Folbre, University of Massachusetts-Amherst

There have been large and persistent disparities of labor market outcomes facing women and, though some disparities have declined, they remain consequential to women and their families.


FORTHCOMINGAssessing economic claims in philosophy and employment law

A series of papers rebutting the specific economic claims made in defending the presumption of equal bargaining power in the labor market in employment law and in debates over Private Government (as identified in commissioned papers by Julia Tomassetti and Chetan Cetty).

  1. “What does the experience with co-determination tell us about the impact of constraining management rights?”  Benjamin Schoefer, University of California-Berkeley and Simon Jager, MIT
  2. “If You Don’t Like This Job, You Can Always Quit?”
    Michael Carr, University of Massachusetts-Boston and Suresh Naidu, Columbia University 
  3. Full employment: freedom of contract inexplicably avoids the salient absence of full employment which greatly shapes options for workers and employers.”
    Lawrence Mishel, Economic Policy Institute 
  4. The evolution of the job flexibility and national economic performance debate
    John Evans, formerly Trade union Advisory Committee (OECD) and William Spriggs, Howard University and AFL-CIO 
  5. What International experience teaches us: the varieties of capitalism
    James Conran, University of Oregon
  6. “The economic impact of employer mandates”
    Arin Dube, University of Massachusetts-Amherst 

FORTHCOMINGInequality of power in external and internal labor markets: The lost perspective of institutionalists and legal realists recovered

Bruce Kaufman, Georgia State University

The first section sets up the main part of the paper. A review is provided of the dominant Anglo-American economic and legal doctrines prevailing in the U.S. in the latter part of the 19th century viz. freedom of contract in employment relationships, competitive nature of labor markets, and opposition to nearly all forms of “interference,” such as unions and protective labor law.


FORTHCOMINGUnderstanding the vulnerability and situation of workers

Kathryn Edwards, Rand, and Andy Green, OECD

It defies common sense to picture workers and employers as equally able to walk away from an employment relation.



Talking about private government: A review of the argument and its critiques

Chetan Cetty, University of Pennsylvania • Preface by Elizabeth Anderson, University of Michigan

Elizabeth Anderson’s book, Private Government, and associated preceding publications, has generated an important debate about the lack of freedoms in and out of the workplace due to the severe imbalance of power between workers and employers. This paper identifies the economic claims made in philosophy debates on private government to justify the presumption of equal power between employers and employees.

Political science


Where are the employers?: American labor relations in comparative perspective

Kathleen Thelen, Massachusetts Institute of Technology

This paper traces the role of employer organization in shaping economic equality and shared prosperity.


FORTHCOMINGBusiness power and the turn toward the local in labor standards policy and enforcement

Janice Fine and Hana Shepherd, Rutgers University

At the same time that enacting stronger and more expansive labor and employment policies at the federal level has been largely foreclosed, advocates have increasingly turned to the state and local levels to seek protections for workers.


FORTHCOMINGHow unequal bargaining power in the workplace undermines civic engagement and democracy

Shom Mazumder, Harvard University

Details forthcoming


FORTHCOMINGAlt-Labor’s turn toward politics and public policy to combat the exploitation of low-wage workers: Building power and ‘punching above their weight’

Dan Galvin, Northwestern University

Rampant exploitation and discrimination across many industries belies the conventional assumption of equal bargaining power in the workplace.


Explaining the erosion of private-sector unions: How corporate practices and legal changes have undercut the ability of workers to organize and bargain

Larry Mishel, Economic Policy Institute, Lynn Rhinehart, Economic Policy Institute, and Lane Windham, Georgetown University

A full appreciation of the need for comprehensive labor law reform requires an understanding of the serious shortcomings in current law and how they have been exploited over the years by employers resisting efforts by their workers to form unions.


Power and politics in the U.S. workplace: What imbalances of workplace power mean for civic engagement—and democracy

Alexander Hertel-Fernandez, Columbia University

Many of the contributions in this project examine the economic consequences of power imbalances between U.S. employers and workers.

External publications