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This chapter examines the role of employment law in workplace conflict resolution. It argues that employment litigation could leverage workplace conflict into more participatory structures of workplace governance and dispute resolution. Employment litigation, like collective bargaining, was launched legislatively in an era of widespread social conflict, and aimed to provide peaceful modes of workplace conflict resolution. Like collective bargaining, however, litigation is itself a catalyst for conflict, partly because it empowers employees in conflicts that employers might otherwise suppress or externalize. Employers seek to avoid both litigation and unionization by creating internal dispute resolution processes. Without union representation, however, employees are unable to monitor the fairness of those internal processes. The forms of workplace governance that are taking shape under the shadow of employment litigation could and should be molded into a fairer system of “co-regulation” in which workers participate through collective representation in the resolution of workplace disputes.
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