Coercion and Consent in Employment: From Contract to Civic Republicanism

Resumo

Although regulated by local, state, and national law, the employment relationship
in the United States remains predominantly a negotiated model, with the bulk of
terms and conditions of work determined by the employment contract, individual
or collective. Rooted in philosophical liberalism, the essence of free labor is
defined by the consent of the parties to employment. After a period of abstract
ideological laissez-faire (the Lochner Era), New Deal legislation and jurisprudence
brought an element of realism to labor law, seeking to remedy problems of power
imbalance by encouraging collective bargaining with the National Labor Relations
Act, placing a floor under working conditions with the Fair Labor Standards Act,
and after WWII, countering discrimination with Title VII of the Civil Rights Act. With
the “right turn” of the federal judiciary, however, accelerated by the consolidation
of a conservative “supermajority” on the U.S. Supreme Court, protective regulation
is being drastically undermined and worker frustrations are growing, as some
commentators even warn of a return to a “new Lochner Era.” Instead of seeking
simply a more realistic refurbishing of “consent,” some labor advocates are
accompanying a revival of civic republicanism as a constitutional ideology in
calling for a republican redefinition of freedom as non-domination at work and for
empowered worker voice within firms as well as stronger democratic citizenship
for workers in economic and political life.