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University of Chicago Law Review

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703

Abstract

Disproportionate employer power is at least partly responsible for the sharp increase in economic inequality in the United States, which threatens the fabric of the Republic. Workplace law reform could provide workers with an institutional source of power that countervails employer power and compresses inequality. Ideas for workplace law reform include modest ones, such as instituting “co-enforcement,” and more ambitious ones, such as “sectoral bargaining.” According to their adherents, both require tripartite arrangements where capital, labor, and government provide inputs on how to regulate work.

But can the United States, with its liberal market economy typically devoid of meaningful tripartism, shift? This Essay describes two recent co-enforcement experiments that have generated some excitement from labor advocates: the Los Angeles County Public Health Councils and the Chicago Office of Labor Standards. It also discusses two purported sectoral bargaining experiments, New York State’s convening of a minimum wage board (New York Board) for fast food and the Seattle Domestic Workers Standards Board (Seattle Board). The cases are offered to evaluate the extent to which tripartism is developing in the United States. The Essay shows that both co-enforcement experiments lack employer participation. While the New York Board had nominal employer, worker, and government participation, it did not provide bargaining authority to the directly affected parties. Only the Seattle Board is tripartite in fact and provides a space for directly affected parties to bargain. Its limitation might be that the tripartite parties are appointed and therefore not necessarily representative of domestic workers and employers generally. The Essay concludes with an evaluation of what these findings suggest for U.S. tripartism.

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