B.U. Law Review
Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting and extracting productive labor.
I consider three examples of political deflection to employers. Employers control employees’ access to healthcare and free speech and, more recently, have imposed public health measures such as vaccination mandates. Employers’ rules are backed by the threat of termination. This Essay argues that relying on contractual authority rather than political authority to distribute social rights and obligations in this way undermines political legitimacy. Governments might see the private sector as a relatively apolitical refuge through which public policies can be pursued stably over the course of political shifts. But removing questions about who gets and owes what from politics and subjecting employees to raw power, as we do when we raise the stakes of employment and lower the stakes of politics, detracts from the rightful function of politics to mediate disagreements among us.
Lowering the Stakes of the Employment Contract, 102 B.U. L. Rev. 1185
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