From Mandates to Governance: Restructuring the Employment Relationship

Brett H. McDonnell & Matthew T. Bodie

The law imposes a dizzying array of responsibilities on employers with respect to their employees. Meant to advance a wide array of workplace policies, these demands have saddled employment with the burden of numerous social goals. The employment ecosystem has increasingly come under strain as companies seek to shed employment relationships and workers lose important protections when terminated. This Article proposes that employers and employees should have greater flexibility over workplace terms and conditions with a move from mandates to governance. Many of the legally imposed employment protections stem from employees’ lack of organizational power. The imbalance is best and most directly addressed by providing workers with governance rights within the firm. In exchange for these governance rights, governments could lift or relax a related set of employment mandates. In addition, the law should lift certain responsibilities currently assigned to employers and instead place those responsibilities on the larger society, where they would be more appropriately carried. This rebalancing of the employment relationship would lead to a more economically secure and empowered populace while at the same time freeing businesses to better pursue their entrepreneurial endeavors.