New Forms of Employee Participation in the United States: Practice and theory

Japanese labor and employment law is based on the "command-and-control" model in which the government sets uniform minimum labor standards and enforces them through penalties and administrative inspections while leaving the determination of above-the-standard working conditions to employers, employees, and labor unions. However, the "command-and-control" system is facing challenges due to limited government resources and declining union density. At the same time, there is a shift in the Japanese labor and employment law toward emphasizing the role of employers and employees in its enforcement, although the system of employee representation through which employees are guaranteed to participate in workplace governance collectively is not well arranged. Bearing the situation of the Japanese labor and employment law, this discussion paper looks into the practice and theory of the new form of employee participation in the United States. In the United States, approaches have been made to let employers, labor unions, and other employees' organization regulate the working conditions, including minimum standards set by statutes, and monitor their enforcement, and some scholars discuss the theory of how these approaches can be fit into the well-arranged system of self-regulation. This article introduces the details of the recent development of the practice and theory of self-regulation based on the book Regoverning the Workplace: From Self-Regulation to Co-Regulation (Yale University Press, 2010) by Cynthia Estlund and discusses lessons for Japanese labor and employment law.