The IBM decision illustrates two major problems with current workplace regulation. First, there are two distinct but overlapping systems - the individual and the collective - which often collide. The result is, at best, an imperfect realization of rights under both systems, and perhaps more often, the sacrifice of rights under one to rights under the other. Second, the multitude of forums available for litigation results in multiple claims arising out of the same action, as well as tribunals deciding issues outside their expertise. After analyzing the IBM decision, I will consider the costs and benefits of the current regulatory system for employers and employees. Finally, I will make some broad suggestions for change, urging a revitalization of the collective system and creation of a system of labor courts to resolve workplace disputes.
Ann C. Hodges, The Limits of Multiple Rights and Remedies: A Call for Revisiting the Law of the Workplace, 22 Hofstra Lab. & Emp. L.J. 601 (2005).