 So let me just begin by saying something about the subject, Professor Ines Christi Q.C. It's with prep addition that I broke this order each year, especially in a room full of such a wonderful crowd and his friends, colleagues, and admirers. Professor Christi was born and raised in Nova Scotia. He started his academic career at Queens University in 1964. In his time there he completed the liability of strikers in the law of torts, a book of continuing importance from which the Supreme Court of Canada has learned a thing or two. In 1971 he returned to Nova Scotia and took up a post very thankfully for us at Dalhousie Law School where he taught a full time until 2003 and then part time until 2007. He served in a very distinguished way as our dean from 1985 until 1991. His teaching interests were broad, labor employment law, poverty law, municipal law, administrative law, contracts, commercial law, and professional ethics. He had a leading role in law reform. He was engaged in the Woods Task Force on Labor Relations in Canada in 1967. Drafted the Nova Scotia Trade Union Act in 1973 with former dean Reed and the Nova Scotia Labor Standards Code in 1972. He changed the way employment law is taught in law schools compared to the influential employment law in Canada. He served in the 1970s as a member of the Canadian Anti-Inflation Appeal Tribunal, was counsel to the Nova Scotia Labor Standards Tribunal, and was chair of the Nova Scotia Labor Relations Board. In addition, he was deputy minister of the Nova Scotia Department of Labor and served as a member and chair of the Nova Scotia Workers' Compensation Board. Additionally, he served as a part time member of the Federal Public Service Staff Relations Board and of the Canadian Human Rights Commission Tribunal. Professor Christie's career was of the sort that we all aspire to. He taught, mentored, and inspired generations of labor and employment law students across Canada and his contributions to academic labor law to public policy formation and administration, to labor arbitration and adjudication, and to legal education are broad, deep, and enduring. He is Christie's symposium in Labor and Employment Law honors his life and work. I'm delighted to recognize Mrs. Shun Christie and Michael Christie alongside Honourable Guest Justice James McPherson this evening. The faculty owes Mrs. Christie in particular a good deal of thanks for her time, commitment, and general sociability. It sounds like the Christie home has served as a welcoming place for the school of the school and in some ways as a second-welded building over the years. A final note of thanks. A lively group of people have been instrumental in organizing the two days that comprise this symposium. Many thanks to them for their contributions to the intellectual life of our community. My special thanks goes to George Archibald, who takes on chairing the community and the committee each year with enthusiasm, and to Elizabeth Sanford, who agrees to serve as the point person charged with ensuring that no detail is left unattended to. Let me turn my podium to Bruce Archibald who will introduce this afternoon's keynote speaker. Please enjoy. So it's a particular pleasure of mine to be able to introduce Cynthia Estlund from the New York University School of Law to be in a Christie visiting professor and lecturer today. I have just met Cynthia in person, but I have met her through the things that she writes for some time now. So it's particularly wonderful that she can be here with us today after skittering out of New York or New Jersey on an airplane that got through the rain and got here. There was some concern about that. But let me tell you a bit about Cindy as I will say. The people seem to call her Cindy and I've started that. I hope that's all right. But she has a stunning career in the labor and employment area in litigating discrimination when she was a lawyer, but she has taught at the University of Texas where she began her teaching career along with her husband who was teaching there. They moved to Columbia Law School where she taught before moving to New York University where she's the Catherine A. Rine, a professor of law and has been that since 2006. She practiced law with two firms in Washington, D.C. in the mid to late 80s. She clerked to the Honorable Patricia Wall, judge of the U.S. Court of Appeals from the District of Columbia. She has written a very important book which I really recommend that you read called Regoverning of the Workplace from Self-Regulation to Co-Regulation. Regoverning of the Workplace is a title which will be familiar to those of you who don't know Paul Weyer from which there was some acknowledgement, of course. She also has edited books, particularly one that I find to be useful with the late Brian Burkesson regulating labor law in the wake of globalization, new challenges, new institutions, which is a very interesting volume which I commend to you. There's a list of 14 book chapters with people from around the world. There is a variety, 20-odd selected lectures and presentations. I won't go through that, but we had an interesting conversation and I would like you to survive about the fact that she was on President Obama's transition team reviewing the National Labor Relations Board from 2008 into 2009. The results of that have been mixed, it seems, for political reasons, over the intervening years. But at any rate, we have the honor of welcoming someone whose wide perspective is about not only the United States throughout the world and the labor and employment law. She is a frequent visitor, I think, to Ontario where she does some teaching. This is her first trip to Nova Scotia and we welcome you and we look forward to what you have to say. Thank you. Thank you so much. I am delighted to give this lecture in honor of Dean Christie, whose family I was happy to meet earlier. Thanks to Bruce for the introduction and for the earlier tour of Halifax and Primmer on Canadian law, labor law, and Dalhousie University. So I seem to be the first American to have this honor and I hope not to sully the flag. But speaking of flags, you all are not kidding about that maple leaf. I grew up in Wisconsin and I spent a lot of time in New England and I consider myself to be quite the connoisseur of fall foliage. I have never seen anything like the drive from the airport to here. Spectacular, even without brilliant sunshine. So I'm very glad to have a chance to see that on my first trip. So my title asks the question, basically, is the push in theory and practice toward employer self-regulation making a virtue or attempting to make a virtue of necessity? Is it giving up on some first best regulatory strategies under the pressure of globalization and neoliberalism and trying to put a good face on the capitulation? Well, I want to approach that question by exploring a somewhat different question. How can the law steer the organization of work in a market economy so that workers get the working conditions, rights, and rewards to which the public deems them to be entitled and to which they deem themselves to be entitled? So the background regime of individual contract in unregulated markets as we all know produced a great deal of exploitation and unrest. So across the industrialized world in the 20th century, direct regulation of wages and working conditions was part of the answer to the problem of how to get workers better rewards. But it was secondary. The primary solution was thought to lie in industrial democracy through unionization and collective bargaining. So our Wagner Act model, which for better or worse, we lent to you and you may have taken better care of it than we have, is distinctive in many ways, but the basic idea of collective bargaining carries across the industrialized world that as compared to a regime of individual bargaining, collective bargaining levels the playing field a bit and allows workers to bargain more effectively by aggregating their bargaining power. But as compared to direct regulation, collective bargaining is more flexible, more market friendly, and democratic way of improving wages and working conditions that takes account of the different capabilities and different resources across the economy in different firms in different sectors. Especially in the U.S. though, it's clear that collective bargaining is not providing an adequate answer for the overwhelming majority of workers who want more and better than they are getting at work, in particular more voice at work. And part of the problem lies in the Wagner Act model that we share, but you have been able to do some tweaking and rethinking along the ways, along the way. We've been less able to do that. We desperately need labor law reform that makes collective bargaining more available to workers who want it. But it seems clear that that is not going to be the answer, even if we got labor law reform, which I honestly thought we would get in 2008, is still not going to be the answer for the overwhelming majority of workers. So we need additional strategies for trying to steer firms and managers toward the high road of decent work and respect for employee rights. A natural place to look for those alternatives is in employment law. The growing collection of minimum standards and individual employee rights that all countries across the world have seen proliferate in the last 50 years at least. But employment law, unlike labor law, does not have a model for how workplaces should be governed. That's where, unfortunately, for better or worse, it's at the governance level where the rubber hits the road in terms of employment standards and employee rights. Under employment law, workers have many formal rights at work, but most have no representation, no organized voice, beyond their individual bargaining power. So in short, labor law has failed to deliver an adequate mechanism for collective employee participation and workplace governance, and employment law doesn't even attempt to do so. That's a problem for a lot of different reasons, and I'm going to focus chiefly on one of them. Without collective representation of employees, the rights and labor standards that the law mandates are in many places chronically under enforced. Labor law can't be replaced by employment law because in the absence of some kind of collective representation, employment law standards tend to be chronically under enforced. So I want to argue that although employment law doesn't actually aim to restructure workplace governance or give employees a role in workplace governance, it could and should be made to do so. Employment law, both, let's think about uniform minimum standards on wages and working conditions, and individually enforceable employee rights, has actually fostered some new structures of governance within firms. Internal compliance programs that capitalize on and develop firms' own regulatory capabilities. Law can make and has to some extent made self-regulation and self-regulatory structures a condition for certain regulatory concessions or advantages. For those, what we need to realize is that those internal compliance programs, in order to be effective, they need to have some particular features. We should not be dealing out regulatory concessions or putting employers on a less onerous regulatory track unless the self-regulatory structures they have in place are actually well-designed and well-implemented to actually enforce labor standards and employee rights internally. And for that to be true, one of the features of a well-designed system of internal compliance in the law of work context is that employees have to have an organized voice in the process of formulating, enforcing, and monitoring the implementation of employee rights. So the law can and should demand effective forms of worker participation before it starts dealing out regulatory concessions to firms that purport to be engaged in effective compliance. So the argument is one part description and one part prescription. It is partly about what's going on now in the world in the law of employment and beyond in North America and beyond. And it's about how that those developments could and should be steered toward creating new mechanisms for collective employee participation in workplace governance. So let's start with what's going on. There's a fairly broad and deep trend across the modern industrialized advanced economies of the world and beyond that actually toward thinking of law as not so much as the command of a sovereign as more of an instrument for fostering self-regulation by organizations and actors in the governed society. So many thoughtful observers have concluded that purely external what is often called command and control regulation is increasingly ineffectual in a technologically supercharged globalized economy. It can't keep up with the increasingly fragmented and fluid and footloose economic actors, organizations and networks through which most goods and services are now produced. But those very same organizations and networks themselves have truly prodigious regulatory resources inside in the aggregate. All those regulated corporations have much more regulatory capacity than the governments that are supposed to be regulating them. And so law can effectively regulate organizations, complex organizations in a modern society only by shaping those organizations internal self-regulatory processes and trying to induce those organizations to internalize public values by regulating self-regulation. So this vein of regulatory theory and research flies under various banners including de-centered law, new governance. There's a couple of different terms that are used. I tend to use new governance. It's based on trends that we can see throughout the world. We can see across all arenas of regulation not just law of the workplace. The most prominent or clear example of regulated self-regulation in U.S. law is in what's called the federal sentencing guidelines for corporations. So what this federal sentencing guidelines for corporations do in the U.S. is set out criteria, the features of an effective system of compliance which, if present, will reduce the corporation's sentence in the event of criminal prosecution. Those same criteria, those same features of effective compliance are also incorporated into the decision-making process for whether to indict a corporation. More specifically in the law of the workplace, the best example is found in the law of Title VII for anti-discrimination, federal anti-discrimination law which says if the firm has an effective system for preventing and remedying harassment and discrimination, then the employer might be able to avoid not all liability but punitive damages and in a few particular cases a few kinds of discrimination liability they may be able to escape liability altogether. On the theory that we want to encourage firms to adopt these procedures which, if they work, can do a much better job at delivering rights enforcement than the external legal system. So in general, the law promotes self-regulation not so much by mandating particular procedures but by offering firms a kind of quid pro quo. If you do what we believe to be, if you create what we deem to constitute an effective system of internal compliance, then we will give you, we will treat you like a responsible firm and we will give you a regulatory track that is less onerous, less punitive, less suspicious, let's say. So it attempts to create a high-road regulatory track for actors that show that they are responsible in the manner in which they are carrying out their legal obligations. So the result of things like the sentencing guidelines in the U.S. but similar structures elsewhere of the law of Title VII is the widespread adoption across major organizations of internal compliance procedures that at least have the formal features that the law says the officials are going to be looking for. Whereas you have to figure out how to make it something different from a check the box kind of set of criteria and that's one of the big challenges. But across large firms with major investment in their brand and their reputation, firms that believe they are seriously exposed to and would be harmed by criminal or civil liabilities and even big litigation, those internal compliance structures have become quite elaborate and significant. So the further down you go in the economy, the fewer the less elaborate structures you find. So at the bottom of the labor market where most low-wage workers work in smaller, marginal, less visible firms, there are no compliance structures in place and that's a problem that I'll come back to a bit later. But the other big problem that I want to focus on is that a system that relies on self-regulation as a means of public law enforcement and that rewards self-regulatory programs with regulatory concessions with lowered scrutiny or lower sanctions is very vulnerable to cheating. It risks putting the foxes in charge of the henhouse. So think of Walmart, for example, which presents itself in various places as a, quote, corporate leader in employment practices but is widely known through the world for skirting the law in many areas. Or think of BP, which talks about its wonderful culture of safety but which was listed by the National Council for Occupational Safety and Health in the U.S. as one of the, quote, dirty dozen most dangerous companies to work for and that was before the Gulf oil spill in 2010. So the big, big question here is how can public agencies foster and rely on corporate self-regulation without being hoodwinked? We need to figure out what kinds of precautions actually work. What kinds of demands can we put on companies' internal compliance procedures that actually provide effective checks against cheating or against what some people have called cosmetic compliance, a facade of compliance behind which nothing really changes. So I personally side with, and I've written about this with those scholars in the new governance area who hold that effective self-regulation. One of the things that is crucial to effective self-regulation is effective stakeholder participation. I use the term stakeholder here because this is a system, this is a way of thinking about regulation that runs across many different regimes. There's many different kinds of stakeholders but in the workplace context, what it means is effective employee participation in the process of self-regulation. It also depends, by the way, on maintaining a serious threat of sanctions by external authorities for cheating. I'll come back to that a bit later. So we are not talking about anything like rank self-regulation. Go figure it out yourself. We can trust you. No. We're going to look at what systems you have in place and try to make sure that they're designed to actually comply honestly and if you cheat, there's going to be sanctions waiting for you down the road. So I want to argue that a well-designed system of self-regulation, of regulated self-regulation, can better advance regulatory objectives and better promote internalization of public values than a purely external system of regulation. And I'll return to those elements, those safeguards in a moment. But first, it's worth noting that in one sense there's nothing new about using law to foster self-regulation. We all learned this in first year torts, if not on the schoolyard, right? Simple deterrence theory tells us that liability rules, criminal and civil, are aiming to deter misconduct and reduce injury and risk by inducing actors to take precautions. Well, what precautions mean when you are an organization is self-regulation. Figuring out how to structure your internal operations to minimize risks, accidents, injuries and violations of the law. So even very conventional, old-fashioned kinds of command and control regulation or tort law is designed in part and works in part by fostering self-regulation. The problem is, as some pure deterrence theorists have recognized, if everything depends on outcomes, on observable outcomes, if liability is all based on what you see coming out at the end, firms may be able to reduce their liability in very counterproductive ways. So for example, internal reporting of misconduct is absolutely crucial to promoting compliance and self-regulation. But of course it also increases the risk of detection. So if you're only at risk from an external system, if you can keep misconduct from being detected, well, that's really what you're after. And so you may, you, the organization may decide to discourage employees from reporting misconduct instead of encouraging reporting and responding to it in a productive way. So simple deterrence logic suggests that we should make firms' liability turn partly on what precautions they actually take. That of course leads us back to the same vulnerability that I was talking about a moment ago. If courts and regulators can't reliably distinguish between effective and ineffective compliance structures and procedures, then forms may get credit for window dressing, for cosmetic compliance, for sham procedures that don't actually reduce misconduct but simply hide it. So whether we're operating on a sort of traditional and deterrence model or whether we adopt a new governance model, efforts to promote compliance with external law, and I'm now going back to the larger frame of regulation in general, face an endemic sort of problem and that is how to encourage self-regulation by firms without being snookered, taken in by the pretense of self-regulation. So how do we build in those checks against cosmetic compliance? Much is going to depend, and again, this is across all fields of regulation on the role of employees. Employees play a critical role in all, basically all regulatory regimes, whether it's environmental, securities regulation, healthcare, product safety. Some employees, high-level employees, especially, are the direct target of liability. It's their wrongdoing we're worried about. It's their compliance we're trying to achieve. But the focus for my analysis is the employees around them, who are pretty much across the board in the best position to observe misconduct and violations of the law in most regulatory regimes, whether it's, again, environmental, consumer safety, or minimum wage laws. They're the ones who observe wrongdoing, they have the information, they are the potential whistleblowers, and occasionally the actual whistleblowers. But there are a lot more potential whistleblowers out there than there are actual whistleblowers, including internally. So the key is how do you empower employees, protect them, and encourage them to speak out and play the role that they have to play in the system. Unfortunately, one problem is employees face a lot of pressure. They're vulnerable to employer reprisals and employer pressures of various kinds. So a major challenge that the whole law of regulated self-regulation, indeed the whole regulatory regime faces, is how to induce firms to encourage employee reporting, monitoring and reporting of misconduct, and how to encourage firms to respond positively to that reporting process, rather than discouraging or punishing those who report misconduct internally. And again, this is endemic to the whole field of corporate compliance. Think of whistleblowers. We've had a number of them in the U.S. I suspect you've had some of them. They play an important role all along. So, but I do of course want to focus on the law of the workplace, where the system of self-regulation confronts some special challenges and special opportunities. So in the case of employment law, of course, employees are not only the monitors of compliance, they are also the beneficiaries of the law and the victims of non-compliance. So they face the workplace hazards, the lack of overtime pay, the discrimination that the law is attempting to banish. So employees in that sense can be even more effective monitors of compliance in the case of employment law than in the case of other laws. They have not only the information but the self-interest in monitoring compliance. They have not only the means but the motive to report on wrongdoing. Employees, of course, do face collective action problems. Compliance with the law of the workplace is what economists will call a public good. It tends to benefit everyone. It's not something that's negotiated one person at a time. The employees as a group generally get the benefits of compliance so that the total benefits are... and by the way, the total cost to the employer of compliance is much, much greater than the benefits that any one employee can get by, say, reporting on misconduct. So that means that individual employees don't really have enough incentive to speak up. They bear a large cost and only get a tiny share of the benefits. But if that collective action problem can be overcome, then activating employees within internal compliance structures can have even greater potential payoff in enforcing and achieving better compliance with the law of the workplace than it can in other areas of regulation. Unfortunately, employees' vulnerability to reprisals poses an even greater threat to a system of self-regulation in the workplace than with other laws, and that's because much more rides on employees themselves speaking up. Our legal system, and I say this, I think especially our U.S. legal system, but I think our shared legal systems rely heavily on enabling beneficiaries of the law to enforce their own rights. Sometimes they do it by contacting a public agency, but sometimes they do it by filing a lawsuit. We like lawsuits in the U.S. Okay, it can be overdone. But injured consumers, aggrieved shareholders, they play an important role in providing a check against fake or cosmetic compliance systems by suing or enforcing when things go wrong. And self-enforcement by victims is especially important in a system that relies heavily on self-regulation precisely because they can come from the outside and say, yeah, you see this pretty picture, you go on the web, they got all these great sounding programs, but actually, it's not working, I'm injured and I want recourse. But in employment law, of course, there usually aren't any outside beneficiaries. There's nobody out there who's not under the thumb of the employer to file that lawsuit, to self-enforce their rights. The law's beneficiaries, as well as the potential monitors of compliance, are inside the firm, subject to economic pressure, subject to the risk of reprisals. So it is all the more important in a system of employment law and self-regulation in the employment law context to make sure we have in place good protections for employees who do speak up against misconduct. So whether we aim for democratic responsiveness and internalization of public values as the new governance people want us to do, or whether we aim for mere compliance with the law, the key to effective self-regulation or at least one major key to effective self-regulation of labor standards and employee rights is figuring out how to ensure that employees can participate effectively in internal compliance structures, can participate in a way that diffuses the collective action problems that employees face and protects employees against the risk of reprisals. Public regulators should not be dealing out regulatory goodies. They should not be putting firms on a regulatory high-road enforcement track unless their self-regulatory internal compliance systems include structures for employees to participate in the process of self-regulation. So what do we need for that to be true? Institutionally speaking, employees need a vehicle of voice and representation that has both a foot inside the workplace and a foot outside the workplace. A foot inside the workplace obviously to aggregate the knowledge that employees have to aggregate the eyes and the ears and the information that employees have. But a foot outside the workplace to gain some insulation and protection and power vis-a-vis employers so that they're not totally vulnerable to employer reprisals and employer domination. Unions in principle are ideally suited to play that role or I should say perhaps ideal unions are ideally suited to play that role. Unions aggregate the knowledge of employees. They bring additional resources and expertise and they have independence and power that is grounded outside the workplace that can shield employees from reprisals and facilitate outside scrutiny. So they provide a check and the data definitely support our inference, our guess that employee rights are better respected and more fully enforced in union workplaces than in non-union workplaces. So the decline of unions across the developed world especially in the US but certainly also in Canada is very, very bad news for the theory of effective self-regulation in the employment context. The self that is doing the regulating is increasingly unlikely to have an organized independent voice for employees inside doing the self-regulation. So one answer could be oh well maybe we should say only firms whose workers are represented by a union should ever get the benefits of a self-regulatory responsible employer track. Sadly in the US at least that would be a recipe for making the whole system illusory. There's too few employees that are represented by unions and too few employers who would be willing to open the door to unions in order to get the benefits of self-regulation. But it's a serious question whether we can figure out a way to engage employees in self-regulation that provides reasonably reliable checks against a facade of self-regulation against cosmetic compliance. So what about that huge majority of employees without a union? Obviously the second best possibility is something like employee committees internal workplace committees health and safety committees for example. I'm going to talk more tomorrow about these health and safety committees. They face some unusual barriers under US labor law that will give you all a laugh or a gasp of horror at the expense of we Americans. I'm happy to provide that service to y'all. But Canada has health and safety committees and they've been studied and the studies indicate that they work best when there's also a union but they do help. They do seem to provide a vehicle for pooling information for overcoming to some extent the collective action problems that employees face. They at least mitigate some of the barriers that employees face in coming forward in a completely unorganized context. They're particularly good at identifying what we might call win-win solutions. Ones that benefit employers as well as employees but employees know things that employers don't. And so I'd be very curious to know if there are good studies of best practices. What are actually the best practices for employee committees? For reasons I'll talk more about tomorrow. We don't have those studies but I'd be interested in knowing what studies you have. What these committees don't seem to do these purely internal committees in non-union workplaces they don't seem to stand up for employee safety concerns that are expensive to address. So if you think about something like slowing down the production line in a poultry processing plant that's a costly safety precaution and that's something that purely internal committees do not seem to have the clout to induce employers to do. The problem of course is that without having a foot outside the workplace employee committees do nothing more than and this is not nothing but all they can do is aggregate the individual power of employees and they have no more power than the employees who make them who make up the committees. So they're too weak and too vulnerable to employer domination and to the risk of reprisals to stand up for workers when compliance is actually costly. That's especially true for employees who are terminable at will which the vast majority of private sector workers in the US are. It is especially true in industries where employers' business model means to consist of minimizing labor costs. When everything rides on minimizing labor costs safety becomes an important cost item and these committees are not really going to do any good. In fact, we might generalize to say that a purely internal corporate compliance system may not do much good at all when the problem that we're trying to get at is not accidental or hidden misconduct by subordinates but rather a deliberate business strategy that's being pursued by managers. So internal employee committees can provide a useful foot inside the workplace but they need support from outside the workplace. They might get that in part from public regulators from having established, formalized and real lines of communication between regulators in the government and these internal committees. They might get that partly from independent monitors and I'll talk a little bit more about that tomorrow whether we can make something good of this burgeoning institution of independent monitoring that we see operating with a very mixed record in areas like anti-switch shop regulation and social regulation. So whatever we, if we figure out something that will work, something that can provide an effective check against sham procedures and actually ensure that self-regulation is working that is what the government should demand as a condition of going on to that higher road track for responsible companies. Another useful element that I'm not going to talk very much about but would be happy to talk about in questions but I don't have time for that. We should have a greater transparency of what's actually going on in the workplace, more information, so actual injury data, actual demographic data, how diverse is your workplace, details of work-life balance policies and their actual usage. Some of this is information that employers already produce and report to the government but that they don't report publicly at least in the U.S. Some of it is information they produce for employees but you can't get it until you're already employed so prospective employees don't have adequate access to this information. Making this sort of information available to the general public in some form might do very little good to help individuals directly. Too much information, right? We live in a world of too much information. Information overload. Not lack of expertise, inability to interpret and compare but so I would agree with those in general who say that we over-rely on mandatory disclosure as a regulatory technique. It's way too cheap and it doesn't do as much good as its proponents say. I agree with that but I think it plays an important role especially as we have the growth we're in a big growth period in terms of information intermediaries. Groups that have different sorts of concerns whether it's regional, industry, topic that rate employers that make it their business to compare employers across a variety of dimensions so that if what I really care about as a prospective employee is family-friendly policies there should be a place I could go that gathers that information together, reliable information not just the lovely picture of the family-friendly workplace environment and actually find out what are the policies and how many people actually feel like they can take advantage of them. So think of, I'm sure you have your equivalent of publications for best firms for diversity best firms for working mothers best firms for XYZ. The information that goes into those processes those intermediary projects should be more accurate it should be more comparable across companies it shouldn't be based just on what companies submit on their own behalf which it often is. So alright we can talk more about that if you want but the idea of regulated self-regulation provides a kind of in-between alternative not necessarily mandatory disclosure which might be very burdensome depending on what companies are already doing but conditional disclosure so if you want to be on the high road track one of the elements we will be looking for is whether you disclose oh so a favorite one of mine is arbitration agreements you should be able to go online and find out if on day one in the U.S. you are going to be required to sign an arbitration agreement and you should find out what that process is and we should have that information should be available to everybody so that people like us can study it and people like the plaintiff's lawyers can actually figure out who's doing who has a fair process who doesn't okay so one question that I'm not going to have a lot of time to talk about but I do want to come back to the worst workplaces because the model that I've been talking about builds on internal self-regulatory structures that are non-existent in the workplaces where most low wage workers work many low wage workers work in low visibility undercapitalized operations that do not feel much threat they don't have any reputational capital to worry about they live virtually under the radar and many rely heavily on undocumented workers so the only way the idea of regulated self two ways the idea of regulated self-regulation can help those workers in those workplaces one, if it becomes a more efficient way of regulating the firms that do have decent self-regulatory systems then there will be more regulatory resources left to target the firms that are not playing ball but more is possible of course and this is hardly a new concept if we could find a variety of ways to hold the big companies more responsible for the work practices in their supply chain so the firms many low wage workers are part of a supply chain that leads up to these big organizationally sophisticated firms that hold themselves out as responsible corporate citizens and that have put a lot of resources into compliance as well as of course they have to put some resources into monitoring the products and services that they are getting from those contractors further down the supply chain I'm going to call these super employers although of course they are rarely legally liable for the employment practices in their supply chain there's a lot of good reasons for holding super employers more liable for their practices further down the supply chain first of all it is big firms contracting processes that spur competition among these low wage producers to fill their labor needs and it puts downward pressure on labor costs and compliance with labor laws that downward pressure is predictable it's profitable and it might even be intentional so maintenance for example maintenance is a very high labor intensive industry low skill a lot of turnover a lot of undocumented workers and there's a whole layer of maintenance contractors that pay no employment taxes that do not abide by minimum wage or other aspects of the labor laws and those contractors can save up to 40% of the total labor costs of the compliant maintenance contractors so the use of these contractors reduces super employers costs it usually has the side benefit if not a goal of insulating the super employers from liability for the almost inevitable employment violations that take place down below so to the extent that those super employers are both the instigators and the beneficiaries of a race to the bottom in certain sectors of the low wage economy it is more than fair to hold them accountable it's also not impracticable given that these super employers have to already have in place mechanisms for monitoring the quality and efficiency of the products and services that they're getting from these contractors and given the fact that they have these very organizationally sophisticated compliance programs if they can be held responsible through law through mandates through conditional sorts of self-regulated self-regulation mechanism even to some extent through political and social pressure if you're going to get hurt by labor violations down your supply chain well then you might find it makes sense to expand your compliance program to include your suppliers to figure out a way to monitor not only the quality of the goods and services that they're producing for you but also the labor conditions so the law could nudge these developments along in a number of ways but I'll leave that also I do want to leave time for questioning of course everything so we can imagine a system of holding employers liable and saying you only get to be a responsible employer you only get to go on the high road track if among other things you take responsibility for your supply chain okay but everything that I've said about the difficulty of self-regulation is sort of multiplied when we try to figure out what it would take to provide checks against cosmetic compliance with the supply chain demands so this doesn't escape any problems it actually expands the problems but it also holds out a possible solution to some sectors of the labor market in which self-regulation otherwise seems like a fantasy so is all of this meant to be a substitute for traditional criminal and civil sanctions license revocation etc not at all those have to be there and they have to be big and they have to be used often enough so that people know that if they cheat the system hold themselves out as responsible employers and are actually engaged in cosmetic compliance that they'll get caught and it will hurt so my personal guru but I'm not unique in this area of responsive or self-regulated self-regulation John Braithwaite calls these big guns what are the big regulatory guns the things that will really hurt and really get employers attention supercompensatory damages for egregious cases criminal sanctions mechanisms for aggregate litigation so that if you're doing something across 100,000 workers they can actually aggregate their action and sue you effectively 100,000 that's not going to work but class actions I want to just give a little shout out to my friend David Dury at York University who's proposed a particularly interesting variation on this an innovative kind of big gun what do low-road employers fear the most unionization so put low-road employers those who are employment law violators on a special labor law track that makes them more vulnerable to unionization that might include access for organizers it would include car check recognition all the things that those of us on both sides of the border have dreamed of many of us as a package of labor law reforms at a minimum put those on the track for the low-road employers so that now they have something really to be afraid of that would both it would deter and sanction those employment law violations I got almost eaten alive defending this proposal in front of Roy Adams not too many years ago by talking about unionization as a punishment for employers rather than as a fundamental human right but let's be realistic for many employers they view it as a punishment and let's use that so I think it's a great concept it would help prevent future violations and would help remedy violations that employees have already experienced so alright the jury is still out are there any of these devices add up to a fully realistic satisfactory model of regulation but I want to come back to this idea that I put out at the beginning about regulated about democracy and employee participation and workplace governance so my aim in this this work is two-sided it is to use mechanisms of employee voice to improve and help enforce rights and labor standards in the workplace the things the public already says workers are entitled to and at the same time to use those rights and regulations those mandates to create new channels for employee voice and representation and participation in workplace governance so if self-regulatory structures if a regime of regulated self-regulation can induce firms to internalize the norms underlying legal mandates and or can at least induce them to live up to what they say they're doing then they might grow into more robust forms of employee participation something to eventually down the road do a little bit more for workers what collective bargaining was meant to do for workers but even if all it does is enable employees to enforce their rights first of all that's a lot for some there's a whole layer of employees in which just getting what the law says you're entitled to would be a big improvement but more than that if we take seriously the idea that employees have to have enough collective power to enforce their legal rights at work if we actually try to figure out how that works I think they might figure out ways to use that voice in other ways as well it's not so if you can give enough protection against employer reprisals and if you can overcome the collective action problem that workers face enough so that they have a voice in enforcing their own employment employee rights and labor standards well then it's not so easy to contain that voice in the channels that the law has set out so just want to finally return to the question posed by the title is this whole idea of using law to foster self-regulation simply trying to make a virtue of necessity is it just putting a nice face on our surrender to the ascendancy of global capital giving up on a superior state centered solution well it is necessary I think to redesign law to better foster self-regulation especially in a world in which states and traditional self traditional state centered regulatory techniques in traction but I also think it's virtuous I think that effective systems of self-regulation regulated self-regulation can do a better job of transmitting norms and enforcing constraints on corporate conduct that we have devised through our own political democratic procedures and it can do a better job of making workplaces and organizations more internally democratic so even if the world were as it was in the 60's say remember that where you had stable firms and stable industries operating largely within national boundaries comparatively protected against outside competition I remember it my dad used to work for AT&T before it was broken up it was the phone company that was a whole different world even in that world though I think that a system a well designed system of regulated self-regulation with sanctions in reserve for those that don't play along is more responsive and more realistic about the heterogeneity of individual and organizational motivations and cultures with regard to compliance and also ultimately more democratic so I look forward to your questions thank you sure but I don't know anybody's names pointing at people but you don't know everybody's names probably either okay thank you that was fabulous what your talk I was wondering about the model of the United States that in Canada the unions are exclusive bargaining agents that collect the bargaining or a wannabe exclusive bargaining agents that collect the bargaining and as a wannabe it doesn't get too much but the one thing historically got is a role in unions in defending employees for labor practice stuff even if the workplace is not unionized so I'm wondering is there in theory and more importantly in practice is there a role in your framework and a role for unions to play even if the chairman comes through to be exclusive bargaining agents that collect the bargaining is there a role for unions to play in yourself absolutely so I talked only a little bit today and I'll talk a little bit more tomorrow about the idea of independent monitors giving internal workplace committees that foot outside the workplace unions could serve that role the only place where we tend to see that in the US is when unions or working hand in hand with worker centers non union associations of workers which do play a very important role in monitoring compliance and pressing for compliance at the bottom among low wage workers the problem that unions face in the US and I think probably here also is that they haven't actually would love to do that but number one they haven't figured out a business model to put it very crassly they haven't figured out how to fund this work for people who can't be contractually compelled to pay their agency fee that poses really interesting questions for us going forward if you've been watching our Supreme Court case law on the agency fee litigation unions are going to have to start figuring out how to do anything that they do without being able to compel people to pay dues so I think this is this has been the idea of trying to figure out better ways to represent non exclusively represent workers has been on the table for a while and it's been stuck in an experimental phase for a long time it hasn't really gone hasn't really turned into anything quite yet but I think that is something we could think about like super employers in the role of the supply chain and how there's like declining standards I guess how would that how would the regulated self-regulation deal with international supply chains huge problem huge problem and I you know David Dory again actually wrote his dissertation on sort of domestic regulation of transnational labor regulation so he's thought about this a lot of people have thought about what governments in the corporations home countries can do to promote compliance with labor standards but most of what that has not taken off and so we have to look sadly to the field of international labor law sadly I say because that is a very very soft law for the most part but I have been impressed I think when I first started reading about these international global supply chain monitoring systems I was very very skeptical and there's plenty of reason to be skeptical because we read all the time about the ways in which they turn out to be a facade or they're not doing nearly as well as they should be I would say though that it's interesting to me that the movement and the progression of what these systems look like is only in one direction they've been getting more effective they're getting better the first systems and I might talk a little bit more about this tomorrow the first the early systems were laughable there was no monitoring at all then there were monitors but they were pretty much in the pocket of the corporations and so they would like announce their inspections ahead of time they'd interview employees in front of their supervisor dumb things like that but that that's no longer okay because there's a whole stakeholder community that's made it its business to police the procedures and make sure that companies that hold themselves out as sweat free are actually putting in place reasonable I shouldn't say reasonable best practices so companies are being pushed to improve the quality of their procedures but all of this where is the where's your motivation you want to ask right what what is driving this and that's just fascinating it's not international labor law although international labor law has some levers here and there that can help it's this sort of amorphous fear of scandal which has really bit some companies quite badly but there the fear of scandal seems to be much greater than the actual you know calculable cost of scandal companies Nike has turned a huge corner back you know when Phil Knight was first asked about the sweat shop workers that were producing sneakers he said not our problem they're not our workers they're not our that doesn't fly anymore right so I think we're moving slowly with lots of stumbling in a direction and this is but this is largely a process of social regulation with a few levers here and there provided by international sometimes domestic law organizing of workers there's lots of pieces of that picture but it's very it's much messier more difficult than even the rather complicated process that I'm describing within domestic law question well yeah and I think they have been doing that in some ways so one thing that's happened is the the stakeholder activist organizations have been they've been pretty good at pushing employers to sign on to the core ILO standards which include child labor forced labor you have to promise and monitor against using child labor forced labor but also mode the most difficult one of course to get them to accept was freedom of association the right to form a union that is that's been a struggle the kind of coordination between those consumer and stakeholder groups and the diffuse reputational sanctions over there and international labor standards for what really is most important has moved in the right direction I would say although it's still very very imperfect but the ILO has done some really interesting things in Cambodia they played a big role in setting up a monitoring system for factories in Cambodia so they have you know they have resources that go beyond the law such as it is and can help countries figure out how if they want to do a better job how do they do it so Cambodia decided to try to brand itself and distinguish itself from some of its neighbors by having decent labor standards it seems to have had some success I think it was the air kind of went out of the balloon when Cambodia lost the benefit of some trade concessions that I personally don't understand as well as some people in this room might but the ILO can do interesting things they have a lot of resources what they don't have is a lot of sanctions I guess I was wondering in my mind what I've always regarded as really beneficial to having a third party involved is that it really helps to use the actual tension in the workplace so I guess what I have a hard time understanding with this sort of model is how in a realistic day to day working relationship how do you continue to have a smooth relationship between the employer and the employee with this internal regulation and their somewhat responsible for reporting these violations where there's what? where the employee is responsible for reporting for a place like this yeah it's tricky and employers are under a lot of pressure so just take the securities laws forget about labor law for a moment been a huge amount the law has at least tried and congress our congress you know the last time they did any serious legislating they actually put their mind to figuring out how do we liberate employees and empower them and sometimes even obligate them to speak up but employers and one of the ways they did that for example was by creating a so-called bounty system if you blow the whistle on something that actually turns out to be a violation that produces big fines you can get a share of the fines now that will empower whistleblowers employers were screaming bloody murder and lobby to try to to cut that back and there is a serious tension some people have written about this serious tension we shouldn't imagine that there is no organizational cost to making every employee into a little policeman you don't want to do that especially in assistance if what you are trying to promote is a collective sense of shared responsibility you have to find fairly subtle ways of empowering employees without destroying the atmosphere of trust that kind of needs to be part of this internalization of public values and being a responsible corporation a healthy corporate culture is not one in which everybody is looking for how can I report and in fact interestingly in the things the reporting mechanisms that have become absolutely standard practice in the US under the pressure of things like our federal sentencing guidelines turn out to be illegal in Europe where they take things like employee privacy rights and oh works councils seriously because they are imposed by the corporation by headquarters up above without any works council consultation we will put that aside what about the fact that they have anonymous reporting mechanisms no most of the Europeans are not so keen on the idea of encouraging people to anonymously report on each other something called the Stasi something called Nazi party there is a history of real concern about people spying on their neighbors and their colleagues so we have had supposedly the works council problem and this privacy problem are a big part of what led Wal-Mart to get out of Germany can you imagine to decide we are not going to be able to get out of Germany there is some real national rooted state centered power that gave some backing to those employee rights but it is a difficult problem I don't think we have in the US have a very adversarial we sort of romanticize whistleblowers even if we also discourage them but we have put a lot of weight on anti-retaliation protections and employee reporting and I don't think we have it quite right but I do think it is something that everybody does need to think about how can you get that right what can the law do to induce corporations to create an environment in which it is not blowing the whistle it is not some big dramatic event it is just what you do when you see something going wrong in the community at a temperature and make reporting a less extraordinary event and something that doesn't have extraordinary consequences but just feeds into a normal process of trying to make things work better and better employers that they tend to be well above any minimum standards in terms of conditions of work so I am just trying to wonder how this model would fit into a small pond as opposed to the bigger pond well that is a really good question because I have focused on those big employers which are better in part because of the huge reputational stakes but better in part because they can afford to invest in compliance and all that stuff but I have talked about them under the radar I have really talked about small to medium sized businesses that want to do the right thing but don't have the resources to do what some of the big companies can do and so I haven't really talked about that and I think it does raise real I think we need to have an idea of effective compliance and a way of evaluating effective compliance that takes into account differential resources but I haven't figured I haven't really thought about how you would do that clearly it would be you would have a different set of criteria and you probably would need some different institutions to help workers out I think that I have come to see the Wagner act model employ an enterprise based bargaining as fatally flawed and have come to admire the more sectoral based institutions that exist in much of Europe and I think small and medium sized businesses put that issue on the table are there sectoral institutions that could do a better job more efficient job of you know they have some efficiencies some economies of scale and they might be able to we might be able to figure out those kinds of regional sectoral institutions that can help smaller firms do the job of effective compliance I understand correctly the suggestion is that there is a creation of two tracks well maybe three or maybe three maybe a sectoral one maybe I'm being overly cynical because after that is a whole lot of arguments over I should have put on this track that I wasn't or you're trying to put this person on this track and they don't deserve to be there we're on that track together I can pull this thing down a track and I'm just wondering isn't that that's just going to create just a multiplicity of litigation which could have been replaced with the regulator just in the first place just enforcing the regulations so it's a very good question and it is one reason why it shouldn't be two tracks or three tracks it has to be a little bit more blended and so John Braithwaite his idea of this that many people have used talks about a pyramid and it's got many layers and you can move up and down depending on the nature of your regulatory record your experience if the stakes are too high at any one step you're absolutely right and you'll lose all the benefits you can't have a big you know two systems like this because then you just have a lot of fighting but something that's more staged I haven't gotten myself into the project of figuring out how that might work in the US because I fear that I'm already engaged in a massively delusionary pipe dream in figuring out the idea that we'd be able to actually think productively in a policy environment about how to design our workplace regulation I it's one of the reasons I sometimes wish I actually were Canadian at least at the provincial level I think you sometimes have the opportunity to do this can I, we might have go and have a drink upstairs in the atrium can I just ask you one question Cindy let me preface it by saying we have a kind of national retailer called the Canadian Tire Company that when I was a child I used to sell things made in Canada and now everything you buy at Canadian Tire is made in China or some other low wage jurisdiction you are doing work in and around China about China when you think of that kind of economy does regulated self-regulation have a role in resulting these things or is it the ILO, is it markets is it a combination well it's all of that just by way of preface when I first started thinking when I worked for a union side labor firm way back when and this was in the mid-80s and that was the first time that I started thinking about this problem of all the work going to China it was a sudden bolt of insight to me and this is embarrassing that Chinese workers desperately need those jobs they need jobs that are much worse than jobs that we would regard as unacceptable and so it's changed the way I think about it a bit so that I think for example it was a very societies have to find ways of cushioning the blow when an entire industry like textiles and apparel goes abroad we have to have a way everybody benefits from that in some sense but we have to figure out a way to get the benefits to the people who are suffering intensely from the lack of the work the destruction of communities but what I think the idea that I feel like I had at one point in my life that the best thing would be if you could like put up borders put up walls that were strong enough and impervious enough to keep all our capital and all our jobs to ourselves so that would be the right way to go not only is that not possible and it's we should have a few more walls than we have but it's not possible to put up those walls and it would be a terrible thing for the people in the poorest parts of the world that actually still need more capital and more jobs so Richard Freeman who I'm sure has been around here a lot and a labor friendly economist has called to this the stage that we're in the great doubling the doubling of the industrial labor force in a relatively short period of time but not yet a doubling of world capital now bracket the question whether the environment can tolerate the doubling of industrial production but his argument is that there is a little transition to where capital catches up so we have we call these races to the bottom and I'm trying to promote the term race to the rising bottom think about it the bottom in places like China has risen they're going someplace else but there's not endless places they can go the point is this is not any great comfort to the workers in the first world who were incredibly privileged for all sorts of historic reasons the race to the rising bottom is not coming up fast enough to keep what we would regard as a decent standard for those industrial workers but it does kind of complicate the problem a little bit I think fighting against jobs going elsewhere in industries where the skills are available from much poorer people who will do it for much less as a general matter justice world justice is served to some extent by that flow but societies have to find ways of getting the benefits of that evened out and we've done a terrible job at that and the riches that have been accumulated off this process of globalization of production it hasn't come back to the people who lost that's not a fact that a lot of businesses have gone to China and have come back some have so that's interesting because of the quality of US workers because of global ranking factors that have led to this re-migration it's not a massive re-migration but we're getting very close to the tipping point in many industries where the advantages of proximity to customers and higher productivity workers mean that it's no longer a no brainer to have your stuff made in China and that's really great we used to think that China was a bottomless source of cheap labor no it is not they have labor shortages they're starting to demand higher wages some employers if they don't need the infrastructure and they don't need the skills that the Chinese workers have accumulated are trying to find other places to go but this is like it's not entirely a bleak process I think the market and globalization have done more for China's workers than certainly more than their unions have done for them people's time but let's give you an example I think it's driving a lot of skilled Americans into higher skills I'm going to give you an example my son is with a computer science firm in upstate New York they helped put the Mars lander on Mars they programmed it in space I asked him whether they had any new clients of interest where they were located in the United States he said he has no idea where they're located in the United States because at 5.30 every afternoon their top computer science group gets on the phone a conference called to India and they talk to the firm that does you know, fight the door down the scale computer science and they talk to the company in the US so the people in my son's firm have been driven up in necessary skills and have probably been there which is great but the people who get enough basic education to work their way up and we're not doing a good job on that I hope you're doing better so I think we should shift the scene of conversation upstairs and make it a little less formal I'd like you to thank you for a very stimulating beginning to the Christie process in this lecture and look forward to your contribution in the symposium tomorrow and we have a kind of keepsake for you to remember Nova Scotia by not too heavy it's not loose do I have to answer yes when they ask me if I'm bringing food into the country I don't know thank you very much