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Employee Rights and Employment Policy Journal

Volume 1 1997 Number 1


Chicago-Kent College of Law, Illinois Institute of Technology

[P.vii]Workplace governance, including the rights of employees in the workplace, has long been a dynamic area of the law. The industrial revolution spawned Marxism, collective bargaining, and work and fac-tory laws in the nineteenth century. In the twentieth century, collec-tive bargaining matured. In the last third of the century, as collective bargaining regulated the working conditions of a smaller percentage of the workforce in the United States, it was supplemented by an ar-ray of new individual rights in the workplace and threatened by new practices adopted by employers. Affirmative action became common in American workplaces and now attracts new controversy; some pre-dict "diversity management" will be the workplace issue for the next twenty years. Public employees gained civil service protection and created new collective bargaining institutions such as "meet and con-fer" and "last best offer" interest arbitration.

As the new millennium approaches, new challenges to employee rights and workplace governance already have emerged. Globaliza-tion challenges today's legal systems much as the industrial revolution challenged those of the last century. The scope of labor and capital markets has grown beyond the sphere of the law of any one nation. Current employment law systems struggle to deal with protection of labor standards in global product markets where capital is more mo-bile than labor and where the rights of employees differ dramatically from one nation to another. In the United States, the changing needs of employers are outpaced only by the changing demographics of the American workforce.

As we enter the 21st century, the challenges facing labor and em-ployment law proliferate. New institutional mechanisms, whether based on collective bargaining or on some other model, surely will evolve to counterbalance unilateral employer power to govern work-places. A new societal consensus about equal employment opportu-nity in the workplace will be sought. New units of government, treaties and trade agreements, such as the European Union, NAFTA and Mercosur, will present the opportunity to rationalize immigration and transborder worker migration policies. New information technol-ogy will make possible virtual factories, in which telecommuting and electronically linked homework replace conventional assembly lines and clerical cubicles.

[P.viii]All of these developments in turn raise profound questions about workplace governance and employee rights. For example, under cur-rent standards for distinguishing employees from independent con-tractors, it is not difficult to conclude that many telecommuters working from home are independent contractors. If that characteriza-tion prevails, the most important trend in workforce automation will move a significant portion of the workforce out from under the cover-age of many of the employment laws passed since 1964. What changes in the boundary between employee and independent contractor are appropriate, and feasible? Even if telecommuters are defined as em-ployees, what changes in current labor standards and occupational safety and health regulations are necessary when work time is con-trolled by employees and the physical setting for work belongs not to the employer but to the employee?

There are topics for a thousand thoughtful articles in these ques-tions. So the new Employee Rights and Employment Policy Journal is unlikely to run out of material. But traditional law review articles written by law professors are not enough. Answering these questions requires generating intellectual capital closely linked to the practical needs of real world workplaces and the people who work in them. While large employers and trade union representatives have a place in the discussion, so too do nonunion employers, the plaintiffs' and de-fendants' bars, and those with international and technology perspec-tives.

This new Journal is uniquely suited to provide the framework for that interprofessional dialogue, spanning not only traditional discipli-nary boundaries within the academy but also bridging the gap be-tween the client community and the organized bar and between the university and the real world. Like Chicago-Kent's Institute for Law and the Workplace, which already has proven its effectiveness in pro-viding such a framework, this Journal will help shape the issues and educate a new generation of professionals to shape the workplaces of the 21st century. We are proud to be associated with this effort.

Henry H. Perritt, Jr.
Vice President, Illinois Institute of Technology
Downtown Campus
Dean, Chicago-Kent College of Law
Professor of Law

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