The Bramble and the Trees: The Employer’s Prerogative as the Foundation of Private Workplace Power

Employers are sovereigns in their workplace. Despite a variety of working arrangements and an array of institutional structures of work, the default governance rule is one. The “employer prerogative” is this default: all workplace decisions fall within the employer’s discretion unless altered by a contract, statutes, or court doctrine. As a result, all legal interventions in the workplace, and the normative debates that surround them, must contend with the employer's prerogative.

Using comparative cases, the Article surveys the ways legal systems entrench the employer prerogative and the relatively limited ways in which workplace institutions have developed to curve or bend it towards various social goals. The Article concludes by offering a novel framework for considering possible alternatives. The Article concludes by describing alternative default governance rules, and a framework for a radically different form of work law and of the framework of power within the workplace.