Charting a New Course in a Fissured Economy? Employer Concepts and Collective Bargaining in the US and Canada

Abstract

The legal concept of the employer plays an increasingly important and contested role in the modern economic context of broad-sweeping organizational fissuring. This article focuses on the role of employer concepts specifically in the collective bargaining domain, where they hold the unique potential to substantially affect access to regulated collective bargaining, its efficacy, and the extent of worker bargaining power. Building on a critical engagement with previous normative literature on fissuring and on the concept of the employer, the paper examines the interaction of fissuring and employer concepts in the context of the US and Canadian ‘Wagnerist’ collective bargaining regimes, and compares the trajectory of employer concept doctrine in each of these two countries in recent decades. The comparative analysis suggests that while employer concept reform within collective bargaining regimes remains constrained in important respects in both the US and Canada, these concepts have also recently diverged in important formal respects shaping their effects in fissured contexts. This divergence is comprised of a formal expansion of their scope in Canada; a narrowing of their scope in the US; and an effective inversion of the US joint employer concept consequentially into less of a remedial, and a more restrictive device. As a heuristic, comparison of US developments with those in its neighbour’s regime that has much else in common, help to highlight the extraordinarily restrictive nature of most recent US doctrine, including the 2020 National Labor Relations Board (NLRB) final rule on joint employer status, its facilitation of fissuring, and the formidable task confronting US labour of somehow bringing lead firms into the regulated collective bargaining process.

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