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 and activists that the labor law has become an obstacle to rather than a facilitator of workplace justice.
This essay offers an analytic understanding of the history of labor law to explain why the field of labor and employment law is in such dire straits. It contends that the labor and employment laws no longer provide redress for the most pressing problems of workers today. The changing nature of work has caused new problems to arise in the operation of the labor market, problems that call for new kinds of regulatory interventions. According to the author, there are two possible scenarios for the future of labor law. One scenario is that labor law will continue to atrophy, unions will continue to decline, and individual employment rights will be chipped away. The other scenario is that labor laws will evolve in a way that represents a marked break with the present in order to address the needs and concerns of individuals in the new workplace. The author discusses the prospect of chances such as (1) a collapse of the distinction between labor law and employment law; (2) an expanded use of legislation rather than collective bargaining to set employment conditions; (3) an expansion of collective bargaining to new groups, such as independent contractors, atypical workers, immigrants, unemployed workers, and geographically-defined groups; (4) a broadening the field of labor and employment law to include issues such as health care policy, training and education, welfare, intellectual property protection, pensions and social security, housing policy, and other areas of social law; and (5) the creation of a new type of social safety net to focus on the problem of transitions and gaps in people’s labor market experiences.