REGULATING RELATIONS: THE ETHICS OF COMMUNITY

Sima Kramer*

Despite the complexity of employee-employee relations, their centrality to the experience of work and their potential to cause serious harm to those involved, current theories of law do not directly address relations between employees. Furthermore, these relations, as such, are not coherently regulated. This paper is an attempt to rectify the apparent blind spot.

This article suggests conceptualizing employee-employee relations as “community”, in order to better our understanding of the special characteristics of relations between employees, as well as the normative implications of these special characteristics.

It argues that, as members of a special type of community - the “Worker-Community” - co-workers have ethical obligations towards one another, which should translate into legal regulation countering phenomena such as bullying and sexual harassment or even the practice of underbidding that has emerged with the “gig” economy. This article further argues that there are other communities for whom this understanding of relations may have ethical as well as regulatory consequences and addresses some of the broader implications of the Worker-Community.

* PhD, Faculty of Law, Hebrew University; Fellow, Van Leer Institute; LL.M., University of Toronto; LL.B Hebrew University. I am grateful to Alon Harel, Yuval Feldman, Frances Raday, Sharon Rabin-Margalioth, Ruth Gavison, Ofer Malchai, Adi Libson, Shai Stern, fellows of the Intercontinental Academia on “Human Dignity” in the University of Bielefeld, Germany, Neta Ziv and participants in the Sapir College Faculty Seminar and participants in the Hebrew University Law Faculty Doctoral Colloquium (2015) for their valuable comments and insights on earlier drafts. I would like especially to thank Sam Scheffler, Mordechai Kremizer, Miriam Gur-Arye, Aharon Barak and Pnina Alon-Shenker for helpful discussion of some of the ideas presented here. Responsibility for all opinions and errors is mine alone.

2 REGULATING RELATIONS [11-May-17TABLE OF CONTENTS

INTRODUCTIONI. HOW CURRENT LEGAL THEORIES DEAL WITH EMPLOYEE-

EMPLOYEE RELATIONS II. THE WORKER- COMMUNITY MODEL

A. On Community as an Idea: the Conceptual Development of “Community”

B. How are the Employees in the Workplace a Community? 1. Shared Space2. Common Ties3. Social Interaction4. Partial Summary: The Uniqueness of the Worker-Community

III. WHAT ARE THE ETHICAL IMPLICATIONS OF THE WORKER-COMMUNITY?

A. On Special Obligations, Responsibilities and Duties in the Worker-Community

B. Arguments in Support of the Worker-Community Model1. The Worker-Community Model Promotes an Ethical Workplace, which may also Increase Efficiency and Productivity2. The Worker-Community Model Reinforces Community along with its Positive Offshoots3. The Worker-Community Model Contributes to the Growing Duties Narrative

IV. THE LEGAL IMPLICATIONS OF THE WORKER-COMMUNITY MODEL

A. Anti-Bullying LegislationB. Changes to Current Regulation of Sexual Harassment C. A Communal Disciplinary Regime Functioning as a Type of ADRD. Regulation of Employee-Employee RelationsE. Regulation of Relations in Other Communities

V. OBJECTIONS ADDRESSEDA. The Voluntarist-Contractual ObjectionB. The Distributive ObjectionC. The Autonomy Objection

CONCLUSION

INTRODUCTION

The growth of the “gig” or “sharing” economy, as reflected by the

proliferation of sites and apps connecting people seeking services, with

11-May-17] REGULATING RELATIONS 3sellers of those services, has featured prominently in the media over recent

years.1 In the field of ride services one can point to Uber, Lyft and Sidecar,

on-demand delivery services include Postmates and Favor, task brokers

include TaskRabbit and Fiverr, and there are many more fields covered by

similar apps and sites. While feted by some as a platform for micro-

entrepreneurs, much of the coverage has addressed how the gig economy

undermines labor law by presenting a new paradigm of employment that

blurs the distinction between employees and contractors and encourages gig

workers to work on contingency, without basic employment benefits or

protections. It has also brought to the forefront the practice whereby

companies channel tasks to the lowest bidder, pitting workers against one

another “in a kind of labor elimination match.”2

This is clearly a type of race to the bottom scenario, since setting the

workers to compete against one another, results in the reduction of wage

standards for all. However, it is hard to regulate against this practice when

viewed through the lens of ordinary labor and employment law (LEL),

which traditionally focuses on employee rights vis-à-vis the employer. The

bidders – gig workers – are not really employees, behaving more like

consumers of these apps and sites, since the assumption is that they could,

theoretically, choose not to use them and to work according to the classical

1 See for example The Gig Economy Is Just Part of the Unsettling New World of Work, BLOOMBERG, 2.6.2016, http://www.bloomberg.com/news/articles/2016-06-02/gigonomics-the-dismal-science-behind-today-s-on-demand-jobs [last visited on 21.8.16], With ‘Gigs’ Instead of Jobs, Workers Bear New Burdens, NEW YORK TIMES, 31.3.2016, http://www.nytimes.com/2016/03/31/upshot /contractors-and-temps-accounted-for-all-of-the-growth-in-employment-in-the-last-decade.html?_r=0 [last visited on 21.8.16], among many.

2 See In the Sharing Economy, Workers Find Both Freedom and Uncertainty, NEW YORK TIMES, 16.8.2014, http://www.nytimes.com/2014/08/17/technology/in-the-sharing-economy-workers-find-both-freedom-and-uncertainty.html?_r=0 [last visited on 21.8.16]. Defending the sharing economy as a platform for micro-entrepreneurs, see Brian Chesky: The 'Sharing Economy' and Its Enemies, THE WALL STREET JOURNAL, 17.1.2014, http://www.wsj.com/articles/SB10001424052702304049704579321001856708992.

4 REGULATING RELATIONS [11-May-17labor paradigm.3

But the harmful effects of this underbidding on workers, are

palpable and warrant a different approach aimed at challenging the

consequences of this new, employerless way of being employed. This

article will put forward one such approach, focusing on the dimension of

employee-employee4 relations as the object of regulation.

Even before the gig economy, relations between employees could be

seen as being characterized by a somewhat puzzling complexity. In the

heterogeneous workplace typical of a modern multicultural society,

diversity of religious and political beliefs, cultural identity and lifestyle is

frequently a given. Co-workers regularly disagree about everything from

current affairs to organizational policy and then go back to doing their jobs,

even when these require high levels of cooperation. Conflict on such

matters is generally considered a normal part of work life and it does not

undermine the stability of workplace relations.

No deep emotional bond is entailed and people may not even

personally like their workmates. Yet this relationship is characteristically a

relatively enduring one through which people grow and develop and even

more so, may exhibit highly trusting behavior, even in workplaces that

3 Indeed, despite the promise, or threat, posed by the Uber drivers’ class-action lawsuit (O’Connor v. Uber Technologies Inc., 13-cv-03826, U.S. District Court, Northern District of California (San Francisco)), which argued they should be treated as traditional employees, it was recently settled out of court for $100 million, so that the issue of whether the drivers are employees remains undecided. One knock-on effect has been the decision of gig economy companies, such as Alfred, Zirtual, Parcel, FlyCleaners and Managed by Q, to move to voluntarily employing the gig workers as employees, as reported in The Gig Economy Won't Last Because It's Being Sued To Death, FAST COMPANY, 17.2.15, http://www.fastcompany.com/3042248/the-gig-economy-wont-last-because-its-being-sued-to-death.

4 I would like to emphasize that my use of the term employee-employee relations, is in the non-legal sense, unless the context indicates otherwise. Therefore employee-employee relations simply refers to relations between people engaged in work who are not employers, without addressing whether they are recognized as employees as opposed to other legal categories of workers, such as contractors, for example. In fact, I use the term employee interchangeably with “worker”.

11-May-17] REGULATING RELATIONS 5encourage competitive behavior. Thus, people can evince consideration and

concern, be aware of others' difficulties, and offer a range of support, from

listening and advising on work-related problems, to more active help in

cases of illness or family crisis. Co-workers may lend each other materials

or tools, circulate papers, seek and give credence to references, in

confidence that the book will be returned, the material not plagiarized, and

the report reasonably reliable. This phenomenon should not be mistaken as

resulting from the repeated game aspect of the relations, since such trust can

be extended to people they have never met, such as new colleagues whom

they have not chosen.

Yet at the same time, it is undeniable that terrible things can happen

at work at the hands of colleagues: sexual harassment, bullying, violations

of privacy, libel, sabotage, various types of theft and even rape. The

vulnerability experienced with respect to the employer is self-evident as

financial, social, emotional and psychological well-being are tied up in that

relationship.5 However, these are also at stake when relations with co-

workers become dysfunctional, given the proximity of co-workers to these

goods. With the advent of the gig economy, fueled by workers underbidding

one another, one can add the inability to earn a dignified income with

minimal social benefits to this list of potential harms.

Thus, the experience of being a worker is characterized by a unique,

multidimensional and significant degree of vulnerability vis-à-vis one’s co-

workers. This vulnerability is intensified by the intimacy that develops over

time between workers, which, even if unintentional, inevitably arises from

the information co-workers collect about one another through their routine

interactions.6 This state of affairs is exacerbated by the “involuntariness” of

5 See JOHN W. BUDD, THE THOUGHT OF WORK (Cornell University Press 2011) (presenting ten different theories of work in order to establish the fundamental importance of work for the human experience).

6 Intimacy can arise involuntarily/passively, simply by virtue of repeated physical and

6 REGULATING RELATIONS [11-May-17these relations, since most workers do not get to choose their co-workers,

that is, the people to whom they are thus exposed.

Given the tension that underlies employee-employee relations,

arising from the inbuilt vulnerability, on the one hand and a limited capacity

to exit the relationship, on the other, this paper investigates the special

characteristics of relations between employees and asks: what are the moral

and normative implications of these special characteristics and how should

these affect the law of the workplace? Are there moral grounds for requiring

employees to take into account and accommodate interests of co-workers?

If so, how should these translate into regulation?

Despite the complexity of employee-employee relations as well as

their centrality to the experience of work and their potential to cause serious

harm, current legal scholarship fails to address them. Whereas a handful of

scholars have recently begun to address conflicts between groups of

workers7, conflicts between individual workers have not been rigorously

examined from a conceptual perspective and the issues they raise remain

neglected. This paper proceeds on the assumption that this has resulted in

something akin to a legal blind spot, so that our view of the desired law is

obstructed.8

temporal proximity, as well as voluntarily, through chosen interactions. As will be described in the main text, the intimacy and vulnerability characterizing workplace relations are also constituent elements of the Worker-Community.

7 See Ann Davies 'Identifying ‘Exploitative Compromises’: The Role Of Labour Law In Resolving Disputes Between Workers' (2012) Current Legal Problems 269 and Guy Mundlak, The Third Function of Labour Law: Distributing Labour Market Opportunities among Workers, in THE IDEA OF LABOUR LAW 315–328 (Brian Langille & Guy Davidov eds., Oxford University Press 2011), discussed in Part I below.

8 See for example a recent case showing what happens when an employer attempts to discipline one worker for mistreating a co-worker, in an individual employment law context. The employer sanctioned the offending employee by moving her to a smaller room without a window and limiting the work she was asked to perform. On these grounds she brought proceedings against her employer, arguing that she had been bullied by her employer. It is hard to tell from the facts of the case what came first, the conflict with the employer or the conflict with the employee but it illustrates the legal limitations placed on employers attempting to regulate relations between employees in a noncollective employment law context (LabC 25725-05-14 Robbie Kafer – Scan Doc Ltd. (29.5.16)

11-May-17] REGULATING RELATIONS 7The justifications for singling out employee-employee relations for

analysis, out of the full gamut of relationships covered by LEL, are

numerous and multifaceted9, however, they broadly fall into three main

types of justifications. First, from a statistical point of view, while the law

today mainly talks about employee-employer relations, given the fact that

the employer is typically one, it can be argued that the vast majority of

workplace interactions occur between employees. Furthermore, the rise of

the management culture means that managers have more say as to their

fellow workers and with that comes a higher probability of an abuse of this

power.

Second, from a labor policy point of view, the analysis of employee-

employee relations is justified since the quality of these relations also

presents an economic concern. Productivity, cooperation, opportunities for

development, efficiency - all these can be adversely affected by negative

relations in the workplace or a culture of underbidding, impacting

individual workers, the company and the market.

Third, from a law and economics perspective, the vulnerability

described above, arising from the employees' unique exposure to a broad

range of potential harms at the hands of their colleagues, also presents a

justification for special regulation.10 Since no one has an interest to regulate

Nevo Legal Database (by Subscription) (Isr.). 9 I discuss this in greater detail in “L’Enfer C’est Les Autres: How Does Labour and

Employment Law Protect Employees from One Another?” (under consideration), recipient of the 2015 Goldberg Prize for Best Article in Employment and Welfare Law (hereinafter "L'Enfer"). In this article, I analyzed the effects of the lack of a focus on employee-employee relations, finding that it has led to inconsistent and partial regulation. In addition, I addressed the intricate web of interests preventing the employer from stepping into that regulatory blind spot, a phenomenon I call “employer inertia”.

10 It is interesting to note that when vulnerability is experienced by a company at the hands of a senior employee, the law defines the worker a fiduciary and significantly limits the worker’s freedom by placing onerous duties on her. Indeed, even lower level employees including a driver-messenger or a junior worker, as well as employees with low salaries and no managerial functions, can be found to owe fiduciary duties to the employing entity. For more, see Sima Kramer, Creativity, Control and Trade Secrets Policy: An Examination of Some Recent Developments in Canada and Israel, 90

8 REGULATING RELATIONS [11-May-17these relations and the law does not allow the employees to enforce these

relations between themselves, these harms can be seen as a negative

externality, indicating a market failure.

The law does partially recognize employee-employee relations as

requiring special regulation. For example, laws relating to sexual

harassment emphasize the special duties placed on employers regarding

sexual harassment between employees in the workplace. So too, unwanted

sexual advances from a co-worker in a position of authority do not require

express rejection in order to be considered sexual harassment. Similarly,

disciplinary codes in collective agreements typically contain address

relations between employees as well as vis-à-vis the employer. However,

from a broader perspective, the above-described rules betray the lack of a

consistent theoretical approach to employee-employee relations, covering

some aspects of these relations and not others. At the same time, the

concern with relations between employees seems to be falling by the

wayside, since the decline of collective labor law and unionization.11

In this paper, I put forward a conceptualization of employee-

employee relations as “community”, in order to describe these relations and

better understand them, with a view to laying the foundation for their

coherent regulation. I argue that, as a special type of community, the

Worker-Community, employees have ethical obligations towards one

another and that there is ethical meaning to being an employee, vis-a-vis

one's co-workers. Finally, this paper outlines the practical legal implications

CANADIAN BAR REV. 325 (2012). While I am not arguing here for the existence of fiduciary duties between employees

of equal power, awareness of vulnerability in the experience of workplace relations yet again reveals the discrepancy in the way the law treats employee - employer relations, in contrast to employee-employee relations. For more on fiduciary duties, see THE PHILOSOPHICAL FOUNDATIONS OF FIDUCIARY LAW (Andrew Gold & Paul B. Miller eds., Oxford University Press 2014).

11 Elsewhere I describe how this result was compounded by the rise of the liberal rights discourse, which occurred at roughly the same time (work in progress).

11-May-17] REGULATING RELATIONS 9of these findings.12

Thus, the Worker-Community model serves us on two main levels. It is descriptive in that it builds on the way the workplace is now (and, potentially, may always have been) and attempts to better our understanding of what, in fact, happens between people at work. At the same time, this model is also normative, as it seeks to support and expand on the communal aspect of employee-employee relations in the workplace by suggesting ways in which the model should impact the law between employees.

To that end, this article proceeds in the following way: Part I will

review current legal theories and see how they address employee-employee

relations. Part II reviews sociological literature on "community" and

introduces the Worker-Community paradigm. Part III considers the ethical

implications this approach reveals about employee-employee relations and

points to three arguments in support of constructing employee-employee

relations as a community, the Worker-Community. Part IV briefly addresses

some of the practical legal implications of the Worker-Community,

indicating how the law should change in light of this new understanding of

employee-employee relations. It further suggests several other fields in

which the application of the Worker-Community model may be beneficial.

Part V addresses three main objections to the regulation of employee-

employee relations as community: (1) the voluntarist-contractual critique;

(2) the distributive critique; and (3) the autonomy critique; and concludes

that these objections do not significantly weaken the case for recognizing

the communal aspect of relations between employees in ethics and law.

12 This paper does not enter into the well-known philosophical discussion about the relationship between moral duties and legal duties.

10 REGULATING RELATIONS [11-May-17I. HOW CURRENT LEGAL THEORIES DEAL WITH EMPLOYEE-EMPLOYEE

RELATIONS

The field of LEL has blossomed in recent years, bringing forth a

plethora of theories attempting to explain it. However, much of the analysis

either focuses on the employer-employee dimension13 or on market

regulation and the way this influences the relations of power between

employees and employers14, so that the employee-employee dimension is

mostly not directly addressed.

Most theories of LEL are based on the premise that there is an

imbalance of bargaining power between the employer and the employee and

this assumption features heavily in the case law. It is also reflected in much

of the relevant scholarship, which addresses the employee’s financial and

psychological dependence on the employer. This literature states that the

traditional goal of the law is to address this imbalance at two crucial stages:

during negotiations on the terms of the employment contract and in the

duration of the contract, as expressed by the idea that control and

subordination are an inseparable part of the relationship.15 On the face of

things, this approach does not address employee-employee relations

insomuch as they do not affect the imbalance of bargaining power.16

13 See for eg GUY MUNDLAK, FADING CORPORATISM: ISRAEL’S LABOR LAW AND INDUSTRIAL RELATIONS IN TRANSITION (ILR Press 2007) [hereinafter FADING CORPORATISM], in Chapter 7: “[…] the traditional focus of labor law has been on the relationship between employers and their employees or capital and labor […].”

14 See for example , LABOUR LAW AND LABOUR MARKET REGULATION: ESSAYS ON THE CONSTRUCTION, CONSTITUTION AND REGULATION OF LABOUR MARKETS AND WORK RELATIONSHIPS (Christopher Arup et al eds., 2006). This critique is the premise of this book, arguing that focus on employee-employer relationship and collective bargaining fails to take into account a wide range of regulatory influences situated outside the labor law framework, that condition the way in which labor is contracted.

15 See for example PAUL DAVIES & KAHN FREUND, KAHN-FREUND’S LABOUR AND THE LAW 18 (3d ed. Stevens & Sons, 1983): “[t]he main object of labour law has always been, and we venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship.”

16 Insofar as employee-employee relations lead to unionization and collective bargaining, they may be addressed by the classical approach to LEL, however that is not to

11-May-17] REGULATING RELATIONS 11Some have spoken out against this premise and argued that LEL is

struggling to keep up with the ever-changing conditions in which work is

carried out and that therefore new guiding principles for the field are in

order.17 Others have argued that this sense of crisis is not connected to the

goals of LEL, but rather with the application of the positive law.18 This has

led to the development of alternative legal theories, some of which will now

be discussed.

The redistribution of resources, power and risks has been described

as one of the main goals of LEL.19 While it can be shown that this

articulation may be consistent with a model addressing employee-employee

relations, it nonetheless typically focuses on protecting and helping

employees, vis-à-vis the employer, by shifting power and resources from

the employer to employees and does not address employee-employee

relations directly.20

Another example is the vulnerabilities approach. This approach

argues that employment relationships are characterized by vulnerabilities,

see the relations in themselves but rather instrumentally.17 See for example Brian Langille, Labour Law’s Back Pages, in BOUNDARIES AND

FRONTIERS OF LABOUR LAW: GOALS AND MEANS IN THE REGULATION OF WORK 13 (Guy Davidov & Brian Langille eds., Hart Publishing 2006); Brian Langille, Labour Law’s Theory of Justice, in THE IDEA OF LABOUR LAW 101–111 (Guy Davidov & Brian Langille eds., Oxford University Press 2011). See also Richard Mitchell, Where Are We Going in Labour Law? – Some Thoughts on a Field of Scholarship and Policy in Process of Change, 24 AUSTL. J. LAB. L. 45 (2011); MARK FREEDLAND & NICOLA KOUNTOURIS, THE LEGAL CONSTRUCTION OF PERSONAL WORK RELATIONS 371–382 (Oxford University Press 2011).

18 See Guy Davidov, The Goals of Regulating Work: Between Universalism and Selectivity, 64 U. TORONTO L.J. 1 (2014) (hereinafter: Davidov, Regulating Work); Guy Davidov, Re-Matching Labour Law with Their Purpose, in THE IDEA OF LABOUR LAW 179 (Brian Langille & Guy Davidov eds., Oxford University Press 2011). For the view that our goals have not changed, see also Manfred Weiss, Re-Inventing Labour Law?, in THE IDEA OF LABOUR LAW 43, 46 (Brian Langille & Guy Davidov eds., Oxford University Press 2011); Ruth Dukes, Hugo Sinzheimer and the Constitutional Function of Labour Law, in THE IDEA OF LABOUR LAW 57 (Brian Langille & Guy Davidov eds., Oxford University Press 2011).

19 See FREEDLAND & KOUNTOURIS, supra note 17, 439–446, arguing that the ‘mutualization of risks’ is one of the goals of labour law.

20 See Davidov, Regulating Work, supra note 18, at 13.

12 REGULATING RELATIONS [11-May-17such as democratic deficits and dependency and that the law aims to

minimize these and prevent unwanted outcomes arising from them.21 Given

the centrality of vulnerability between employees to the model, as will be

described below, there seems to be a reasonable basis for arguing that this

articulation could embrace a model relating to employee-employee relations

as well, even though it too does not address them directly. This is also the

case with the “happiness” approach as put forward by Glenn Patmore22 and

the “emancipation” approach as put forward by Adelle Blackett23.

Other approaches to the goals of LEL that do not directly address

employee-employee relations but also do not directly undermine an

employee-employee-centered approach, include: advancing workplace

democracy24, conceptualizing labor rights as instances of human rights or

human dignity25, reducing or minimizing social exclusion26, efficiency27 and 21 For more on the vulnerabilities approach to LEL, see Guy Davidov, Three Axes of

Employment Relationships: A Characterization of Workers in Need of Protection , 52 U. TORONTO L.J 357–418 (2002) (hereinafter: Davidov, Three Axes).

22 Glenn Patmore, Happiness as an Objective of Labour Law (University of Melbourne, Ctr. For Emp. & Lab. Rel. L., Working Paper No. 48, 2010).

23 Adelle Blackett, Emancipation in the Idea of Labour Law, in THE IDEA OF LABOUR LAW 420 (Brian Langille & Guy Davidov eds., Oxford University Press 2011).

24 For more see Karl E. Klare, Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform, 38 CATH. U. L. REV. 1, 7 (1988).

25 COLIN FENWICK & TONIA NOVITZ, HUMAN RIGHTS AT WORK: PERSPECTIVES ON WORK AND REGULATION (Hart Publishing 2010); Guy Mundlak, Human Rights and the Employment Relationship: A Look through the Prism of Juridification, in HUMAN RIGHTS IN PRIVATE LAW 297 (Daniel Friedmann & Daphne Barak-Erez eds., Hart Publishing 2001); LABOR RIGHTS AS HUMAN RIGHTS (Philip Alston ed., Oxford University Press 2005); Judy Fudge, THE NEW DISCOURSE OF LABOR RIGHTS: FROM SOCIAL TO FUNDAMENTAL RIGHTS? 29 COMP. LAB. L. & POL’Y J. 29 (2007); Kevin Kolben, Labor Rights as Human Rights?, 50 VA. J. INT’L L. 449 (2010).

26 Hugh Collins, Theories of Rights as Justifications for Labour Law, in THE IDEA OF LABOUR LAW (Brian Langille & Guy Davidov eds., Oxford University Press 2011); CYNTHIA ESTLUND, WORKING TOGETHER – HOW WORKPLACE BONDS STRENGTHEN A DIVERSE DEMOCRACY 134–136, 169–173 (Oxford University Press 2003).

27 For more, see Hugh Collins, Justifications and Techniques of Legal Regulation of the Employment Relation, in HUGH COLLINS, EMPLOYMENT LAW 3 (Oxford University Press, 2003); Simon Deakin & Frank Wilkinson, Labour Law and Economic Theory: A Reappraisal, in LEGAL REGULATION OF THE EMPLOMENT RELATION (Hugh Collins et al eds., 2000); Alan Hyde, What Is Labour Law?, in BOUNDARIES AND FRONTIERS OF LABOUR LAW: GOALS AND MENAS IN THE REGULATION OF WORK 37 (Guy Davidov &

11-May-17] REGULATING RELATIONS 13so on.28

Two writers address employee-employee relations directly. Mundlak

does this from a broad conceptual perspective, arguing that labor law

influences the distribution of rents, power, rights, resources and economic

risks between workers as well as between labor and capital29. Davies looks

at how the 'interests of labor' are not a unified whole to be pitted against

those of 'capital' but rather a heterogeneous group made up of sub-groups

with divergent interests30.

In Mundlak’s articulation of the functions of law regarding the

world of work, he lists three main roles, the third one being marking the

borders of power between workers. However, he takes this in the direction

of the distributive aspects of work and benefits between workers and does

not attempt to conceptualize the relations between them.31

While Mundlak's contribution to our understanding of labor market

segmentation and dualism cannot be overstated, the focus is different to the

one suggested in this paper. Mundlak expressly links this third function of

the law, to labor market institutions and norms developed by employers,

examining their effect on workers, whereas the focus in this article is on

how the way workers behave, affects other workers. This is yet another

example of how existing theories overlook the importance of employee-

Brian Langille eds., Hart Publishing 2006), has argued that the goal of labour law is to correct market failures.

28 The above review is consciously limited as the aim is only to mention some of the existing approaches. For a broad and thorough review of the main theories of LEL, see THE IDEA OF LABOUR LAW (Brian Langille & Guy Davidov eds., Oxford University Press 2011). See also Davidov, Regulating Work, supra note 18.

29 See FADING CORPORATISM, supra note 13, at 6, 10, 109. See also Mundlak, supra note 7.

30 See Davies supra note 7.31 Rabin Margalioth also addresses the employee-employee level from this

perspective, looking at intra-employee redistribution resulting from mandated employee benefits and leading to compensation disparity, in Sharon Rabin Margalioth, Cross Employee Redistribution Effects of Mandated Benefits, 20 HOFSTRA LAB. & EMP. L.J. 311–344 (2003).

14 REGULATING RELATIONS [11-May-17employee relations to the experience of work, even though it appears that

they could be applied to this dimension, without overstraining their

foundations.

Davies' analysis can also be seen as remaining on the distributional

level, as she is motivated by the realization that labor law has the potential

to exacerbate divisions between different groups in the workforce. She

presents a preliminary mapping out of the way conflicts between groups of

workers arise under existing legal principles, in recognition of the divergent

interests of different groups of workers. The contribution of Davies' article

is significant in that it identifies conflicts between workers as a neglected

dimension and calls for more research in the field. However, she does not

attempt to examine the special characteristics of relations between workers

and nor to resolve the problems that she identifies. Furthermore, she

expressly sidesteps the issue of internal conflicts between workers, finding

that they have become a sad inevitability as workplaces have become more

diverse.

Since the large part of the models described above build on the

premise that the fundamental structure of the employment relationship is

between employees and employers, an employee-employee-centered model

addressing the underlying sociology of these relations presents an

opportunity to complement these models. Such a model has the potential to

enrich the discussion of the goals of the law, which is important for three

reasons: proposing reforms (or evaluating proposed reforms); interpreting

existing laws (and filling gaps in legislation); and examining the

constitutionality of laws when they are being challenged.32

II. THE WORKER- COMMUNITY MODEL32 Davidov, Regulating Work, supra note 18; see also Guy Davidov, Articulating

Labour Law’s Goals: Why and How, 3 EUR. LAB. L.J.130 (2012).

11-May-17] REGULATING RELATIONS 15

As emerged from the discussion above, current theories of law fail

to directly address the employee-employee dimension of relations in the

workplace. In light of the centrality of these relations to the experience of

work, this blind spot threatens to undermine the cohesiveness of these

theories as well as their ability to explain positive law. This section suggests

one way of thinking about employee-employee relations.

To this end, this part of the paper addresses literature from the field

of sociology, which identifies the central characteristics of “community”.

The aim is not to provide a taxonomy of the concept of “community”, nor to

map all the existing approaches. Instead, the goal is to indicate the

progression in thinking which occurred around this concept and to isolate

those elements which serve the purpose of better conceptualizing employee-

employee relations. This will facilitate the discussion in the next section,

regarding the ethical implications of employee-employee relations

understood in this way.

Before delving into the literature, it would be apt to pause and ask

“why ‘community’”? Whence the turn to this concept? The more banal

response points to the fact that historically, workers have been recognized

as a group, whether one to be reckoned with, when unionized, or one to be

otherwise managed when not unionized. While this external recognition

need not necessarily dictate the way relations between employees should be

understood,33 a brief consideration of the potential alternatives reveals that 33 It should be made clear at the outset that the characterization of employee-employee

relations as community and the parameters used for this, are only for the purpose of understanding employee-employee relations as between themselves. Community here is not used as a legal category but rather as a model, enabling us to better comprehend the dynamics between workers. In other words, I do not discuss how this community of workers should function or be treated outwardly, as a unit, or what legal recognition it should be given as a unit. One should bear in mind that any attempt to view workers as a community for the purposes of external legal recognition, that is, as a group of workers requesting group rights, is likely to require more definitive parameters with a stricter application. For my purposes, that is, conceptualizing the interaction between employees

16 REGULATING RELATIONS [11-May-17they present untenable positions.

The Individualistic Approach would consider employees as, above

all, individuals, interacting freely and therefore governed by nothing more

than the dictates of respect for basic human rights require. While this option

may be partially true, it fails to explain the special bond that is, nonetheless,

evident between employees.34 Furthermore, it ignores the legal recognition

that has been granted to the workplace, as generating special norms of

behavior (health and safety, privacy, libel, sexual harassment, intellectual

property and so on).

Alternatively, the Employer-Centered Approach might view

employees as an extension of the employer and therefore lacking in any

individual standing when it comes to regulating their relations with one

another. This view focuses on the vicarious responsibility of employers for

the acts of their employees within the physical and virtual boundaries of the

workplace. It finds that the employer is ultimately responsible for the nature

of employee-employee relations because of the control the employer exerts

on the workplace. While there is some basis for this approach, for example,

regarding the responsibility placed on employers regarding prevention of

sexual harassment in the workplace, there is something potentially

dehumanizing about this approach and it can be argued that this is in direct

opposition to the recognition of the employee’s right to autonomy and

human dignity.35

Finally, the Collectivistic Approach would be to revert back to the

collective labor model and view employee-employee relations through the

and themselves, the parameters in the main text are more inclusive.34 Some examples were brought in the introduction and more are discussed below, in

the main text.35 For an interesting discussion of the employee's right to autonomy and human dignity

in the context of the right to privacy in the workplace, see the majority and dissenting opinion in Barbulescu v. Romania no. 61496/08 ECHR 2016 in which the European Court of Human Rights discussed an employee’s right to privacy in his emails.

11-May-17] REGULATING RELATIONS 17lens of unionization. As mentioned above, the regulation of employee-

employee relations is in part a by-product of the act of unionization,

however the decline in unionization requires a model that can address

workplaces that are also governed by individual employment law. Unions

are interesting since their presence indicates a type of internal organization

that surpasses whatever a community approach can achieve, certainly

outwardly. In its inward focus, the Worker-Community model is still

applicable to unionized settings, though the major contribution of this

model is in recognizing a community also where there is no union or

collective agreement36.

We see, therefore, that at the very least, in light of the lack of

alternatives, there is a reasonable basis for turning to the idea of community,

in order to understand employee-employee relations. The analysis that

follows will reveal that this hypothesis is well-founded and that the Worker-

Community paradigm has the potential to both explain certain behaviors

between employees, as well as to provide the justification for legislation

establishing desired norms of behavior between employees.

A. On Community as an Idea: the Conceptual Development of “Community”

While many have commented on the difficulty in creating a strict,

exclusive definition of community37, this did not prevent the development

36 Though one could in theory see how application of the Worker-Community can lead to unionization, even though that is not the aim, by increasing cohesiveness among employees. One could question how apt it is to suggest a community-based approach as opposed to an individualistic approach, given the decline in unionization. Without denying the trend of individualism in the workplace and in society in general (and this critique is addressed towards the end of the paper), the fact that unions function outwardly, determining pay, makes them harder to swallow for the individualistically minded employee, than the Worker-Community model is expected to be, given that it functions inwardly.

37 See the introduction to JOSEPH GUSFIELD, COMMUNITY: A CRITICAL RESPONSE

18 REGULATING RELATIONS [11-May-17of a large body of literature attempting to do just that. While it is beyond the

scope of this paper to map all the existing approaches, or to provide a

cataloguing of the definitions of “community”, it is valuable to indicate the

progression in thinking that occurred around this concept and to point to the

main elements that emerged through the years.

The term itself has changed in meaning over time and carries

different connotations in different cultures.38 As a sociological concept, the

term “community” has been used to refer to a range of social phenomena,

over the years. Classical social theory, for example, initially defined the

term as a geographic territory.39 The development of industrial capitalism

was viewed as the trigger to a change in the basis of social cohesion. It was

described as a move from Gemeinschaft (community) to Gesellschaft

(society)40, which lead to the development of a more abstract concept of

community. Weber and Simmel for example viewed community as a

network of intimate primary relationships, involving emotional attachment

and sentiment and looked at the quality of human relationships that bind

people to one another to form a social group.41

The application of the sociological perspective of Symbolic

Interactionism in the context of community analysis, further disconnected

the concept of community from its geographical sense and introduced the

idea of community as a social construct. In this sense, a community is

socially constructed by a group of individuals who identify themselves as

(Harper & Row 1975). See also Marcia P. Effrat, Approaches to Community Conflicts and Complementarities, in THE COMMUNITY: APPROACHES AND APPLICATIONS 1 (Marcia Pelly Effrat ed., 1974), at 1: “You can get ‘hold of some, but there’s always more slipping away from you’.” See also W. Richard Goe & Sean Noonan, The Sociology of Community, in 21ST CENTURY SOCIOLOGY: A REFERENCE BOOK chapter 46 (Clifton D. Bryant & Dennis L. Peck eds., Sage Publications Inc. 2007).

38 GERARD DELANTY, COMMUNITY 1 (2d ed. Routledge 2009).39 Goe & Noonan, supra note 37. 40 FERDINAND TONNIES, COMMUNITY AND SOCIETY (Michigan State University Press

1957) (1893). 41 MAX WEBER, ECONOMY AND SOCIETY (University of California Press 1978).

11-May-17] REGULATING RELATIONS 19members of a group with which they share common characteristics and

have specific rights and obligations.42

Gusfield argued against conceiving of “community” as a group or

entity to which people belong, saying that it is more useful to conceptualize

this term as a point of reference “brought into play in particular situations

and arenas.” Thus, he pointed to the distinctly regulatory dimension of this

term, describing the individual as drawing on a plurality of groups,

associations and social networks, in determining norms of his and other’s

behavior. “The same person is at once a Catholic, a student, a lawyer, a

woman, an American. Each definition brings different loyalties and

purposes into play.”43

So too, symbolically constructed communities do not necessarily

require face-to-face interactions. Residing in proximity within a small

territory may promote the development of symbolically constructed

communities, however such communities also exist on broader geographic

scales, for example national identities and it is only really required that

individuals identify themselves as members of the group, for them to be

recognized as a community.44 This approach will be instrumental in the

conception of the Worker-Community that will emerge below.

By the middle of the 20th century, the composite knowledge base of

42 GUSFIELD, supra note 37, chapter two onwards, the statement of the symbolic interactionist approach to community.

43 Id. at 42.44 Id., 32, 43. In the conception of community developed by Symbolic Interactionism,

lie some elements which are essential in order to understand the modern workplace as a community. The approach of Symbolic Interactionism to new media shows that virtual online communities are an important social construct in terms of their cultural, structural, political and economic aspects (Jan Fernback, Beyond the Diluted Community Concept: A Symbolic Interactionist Perspective on Online Social Relations, 9 NEW MEDIA & SOC’Y 49–69 (2007)). For example, the idea that face-to-face interactions are not required in order for a community to exist, is directly applicable to workplaces that enable people to work from home (THARON W. HOWARD, A RHETORIC OF ELECTRONIC COMMUNITIES (1997). COMMUNITIES IN CYBERSPACE 29–59 (Peter Kollock & Marc Smith eds., Routledge 1999)).

20 REGULATING RELATIONS [11-May-17the various trends in the sociology of community, provided a plethora of

different definitions of the concept of community, which led to a growing

lack of consensus over its meaning. Against this background, George

Hillery conducted an analysis of definitions of community that had been

used in 94 previous studies to determine what, if any, areas of agreement

could be identified.45

Combining the leading figures indicated that 69 of the 94 studies

agreed on the following definition of community: a group of persons (a)

engaging in social interaction, (b) within a geographic area, and (c) having a

common tie or ties46. The resulting combination of this data has since served

as a point of reference for the vast majority of sociological research into the

concept of community. The definition emerging from this combined data

will serve as the basis for the discussion in the next section.

B. How are the Employees in the Workplace a Community?

According to Durkheim, the idea of the workplace emerged from the

fragmentation of community, when the community could no longer provide

everything its members needed47. The essence of the whole seems to have

been retained in its fragments, since research indicates that many workers

place importance on community in the workplace and see work as a basis

for communal and social life.48 Whereas the fields of psychology and

45 George A. Hillery, Definitions of Community: Areas of Agreement, 20 RURAL SOC. 111–123 (1955).

46 It should be noted that Hillery used the term “common tie” to refer to a wide range of phenomena, including a common lifestyle, culture, work, and beliefs; kinship; “consciousness of kind” (a type of psychological identification with a group); shared norms, values, or goals; and the use of shared institutions.

47 EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 105–110 (George Simpson trans., 1969) (1893).

48 For an extensive discussion of what this means see BARBRA POCOCK, THE WORK/LIFE COLLISION (The Federation Press 2003), relying on quantitative and qualitative

11-May-17] REGULATING RELATIONS 21sociology have extensively documented the importance of the workplace in

providing a sense of community and camaraderie49, this article now asks

what elements of community are present in workplace relations between

employees.

This section proceeds on the assumption that employee-employee

relations in any given workplace may be considered a community in one

sense, but not in another. The aim is not to create an exhaustive list of all

the aspects of community present in the workplace. Neither does this

section prefer one parameter over another, since this would require data

from quantitative fieldwork that has yet to be carried out. Rather, the

following discussion attempts to call to attention some of the ways in which

employees in the workplace can be viewed as a community, by isolating the

core characteristics of this concept and identifying their presence in the

workplace.

As described above, Hillery identified the main qualities of

community as including: shared space, common ties and social interaction.

While his research was carried out in the 1950s, these elements continue to

present themselves as the focal point in contemporary studies of community

research..49 For a sociological analysis, see ARLIE RUSSELL HOCHSCHILD, THE TIME BIND:

WHEN WORK BECOMES HOME AND HOME BECOMES WORK (Metropolitan Books 2001) (studying families working at a Fortune 500 company) as well as Stephen R. Marks, Intimacy in the Public Realm: The Case of Co-workers, 72 SOC. FORCES 843–859 (1994). In psychology, see Boas Shamir, The Workplace as a Community: Some Observations on the Relationships Between Work and Non-Work of Living-in Hotel Employees, 12 INDUS. REL. J. 45–56 (1981); Gary Alan Fine, Friendships in the Workplace, in FRIENDSHIP AND SOCIAL INTERACTION (Valerian J. Derelega & Barbara A. Winstead eds., Springer 1986); Katherine J. Klein & Thomas A. D’Aunno, Psychological Sense of Community in the Workplace, 14 J. COMMUNITY PSYCHOL. 365–377 (2006). Another branch of research in the field of workplace psychology has been the application of the “Sense of Community Index” as introduced in David W. McMillan & David M. Chavis, Sense of Community: A Definition and Theory, 14 J. COMMUNITY PSYCHOL. 6 (1986) to the workplace, see for eg Heather M. Chipuer, A Review of the Sense of Community Index: Current Uses, Factor Structure, Reliability and Futher Development, 27 J. COMMUNITY PSYCHOL. 643–658 (1999).

22 REGULATING RELATIONS [11-May-17as well50 and their expression among employees will now be examined.

1. Shared SpaceOn a most basic level, the workplace is a shared space, used by an

increasingly heterogeneous range of people.51 The shared space could be

identified as an office block housing different employing entities, or a

particular floor in the office block or even the water cooler to which

different workers gravitate to quench their thirst. So too, factories, call

centers or other manufacturing spaces, bring unrelated people into a specific

area on a regular and frequent basis, creating a common experience and a

shared space. Thus, in its simplest form, the physical geography of the

workplace creates community between the people who share that space.

This is the case, even before these individuals have interacted among

themselves.52

This is the place to clarify that the spatial element is not confined to

physical space alone and includes virtual space as well, so that the

workplace community may equally be constituted through technologically

mediated relations. The development of the internet and its effects on

communities has been described as contributing to the concept of “liberated

community”.53 According to this concept, the community is liberated since 50 Cf LARRY LYON, THE COMMUNITY IN URBAN SOCIETY (Waveland Press 1999).51 On the increased heterogeneity of the workplace see ESTLUND, supra note 26 and

Orly Lobel, Between Individualism and Solidarity: Collective Efforts for Social Reform in the Heterogeneous Workplace, in 14 DIVERSITY IN THE WORKPLACE, RESEARCH IN THE SOCIOLOGY OF WORK 131–164, at n.38 (Nancy DiTomaso & Corrine Post et al eds. 2004) (hereinafter: Lobel, Collective Efforts).

52 The workplace would not be the first shared physical space to be considered a community prior to any interaction between its members. See for eg gated communities in Shay Stern, Taking Community Seriously: Toward a Reform in Taking Law (Dec. 2013) (unpublished Ph.D. Dissertation, Tel-Aviv University) (on file with author).

53 Documenting the importance of internet communities, see Barry Wellman, Physical Place and Cyberplace: The Rise of Personalized Networking, 25 INT’L J. URBAN & REGIONAL RES. 227–252 (2001); THE INTERNET IN EVERYDAY LIFE (Barry Wellman & Caroline Haythornthwaite eds., 2002). Barry Wellman et al, Computer Networks as Social Networks: Collaborative Work, Telework, and Virtual Community, 22 ANN. REV.SOC.

11-May-17] REGULATING RELATIONS 23close geographic proximity is no longer essential to the formation and

maintenance of the communal relationships.54 As a result, it would be a

mistake to think that workers who telecommute are not part of the Worker-

Community and this model fits well around phenomena related to

globalization, offshoring and outsourcing.

What should be immediately evident from this description is that

this perspective on workers does not condition membership in the

workplace community on any particular legal status. Its focus is on a shared

locality and it appeals to the fact that workers are first and foremost human,

literally sharing a space, be it physical or virtual. This approach is therefore

free of conceptual constrictions that are foundational to LEL, such as who is

an employee, contractor, freelancer, precarious worker and so on and that

necessarily arise from the fact that the law today is fundamentally structured

around employer-employee relations or the relationship between capital and

labor.55

By contrast, this paper puts forward the idea that relations between

employees are central to the experience of work. Such an approach invites

the inclusion into the community of all those involved in work around a

particular space, physical or virtual, in a way that is not constricted by

specific legal categories.56 For this reason, it seems apt to refer to this social

213–238 (1996). 54 Barry Wellman, The Community Question: The Intimate Networks of East Yorkers,

84 AM. J. SOC. 1201–1231 (1979).55 Indeed, a significant volume of legal scholarship is concerned with the question of

who is an employee and how to circumvent this definition in order to improve the welfare of a greater number of workers. For example, ALAIN SUPIOT, BEYOND EMPLOYMENT: CHANGES IN WORK AND THE FUTURE OF LABOUR LAW IN EUROPE (Oxford University Press 2001) and Guy Davidov, Three Axes, supra note 21.

56 This is also another way in which the idea of a worker community is different to unions and other formal employee organizations: the dependence of unions on membership means that they frequently fail on inclusiveness and they represent only certain groups of workers. Most commonly this will be workers legally recognized as employees, leading to accusations that unions sell-out other groups of workers such as contractors or precarious workers.

24 REGULATING RELATIONS [11-May-17unit as a “Worker-Community”. This term encapsulates a more pluralistic

legal approach to the workplace, accepting all those engaged in work,

irrespective of their legal status and also adds specification vis-à-vis the

community in question.57

The influence of geography in generating community among

employees in the workplace is illustrated by the following story that was

reported in the Israeli press.58 A public outcry arose around two photographs

posted on Facebook, taken of death notices hung on the walls of the Bank of

Israel. They addressed the death of two young soldiers, one the son of an

individual working in the Bank in the information technology department

and the other, a cleaner in the Bank, employed by a contractor. The trigger

was the fact that on the death notice, in brackets by the cleaner’s name, the

cleaner’s status in law, as contractor, had been added. As the media

described it, the furor arose around the fact that even in her grief, as far as

the Bank’s management was concerned, she remained a “second class

citizen”.

The blanket emotional outrage triggered by the wording of the

different death notices was marked and indicated that a social norm had

57 The name chosen for this approach was inspired by Hillery’s comments in his paper A Critique of Selected Community Concepts, 37 SOC. FORCES 237, 241–242 (1959): “[…] the term "community" is already a vague and a haphazard one […] One of the more certain aids to clarity which the present writer can see is to employ hyphenated words: nation-community, village-community, household-community, etc.”

58 Tali Heruti-Sover, On the Relation between the Bank of Israel, Obituaries and Contract Workers, HAARETZ BLOG (Jul. 29, 2014), http://blogs.haaretz.co.il/taliherutisover/2020/. See also Why did the Bank of Israel mention the Grieving Mother was a Contract Worker?, WALLA! NEWS (Jul. 29, 2014), http://finance.walla.co.il/?w=/557/2770224; Dudi Avitan, Obituary States: Mother of Fallen Soldier is a Contract Worker, YNET (Jul. 28, 2014), http://www.mynet.co.il/articles/0,7340,L-4551216,00.html; and, also see Forum treating thesubject at http://cafe.themarker.com/topic/3125959/; The Bank of Israel Publishes an Obituary and Offers Condolences to a Grieving Mother, “A Sub-Contract Worker”, NANA10 (Jul. 28, 2014), http://news.nana10.co.il/Article/?ArticleID=1072089, The Obituary Outcry: The Grieving Mother will be Employed Directly by the Bank of Israel?, MAKO (Aug. 17, 2014), http://www.mako.co.il/news-israel/local/Article-6c00ad8bd64e741004.htm.

11-May-17] REGULATING RELATIONS 25been violated. As far as the Bank was concerned, their regulations only

required them to put out death notices for actual employees of the Bank and

their decision to put one out for the cleaner’s son as well was motivated by

consideration for her feelings. However, the uproar points to the fact that

from a broad social perspective, citing her legal status contravened the

implied understanding that these two workers were of equal status in a

certain social unit, even if according to the law, this was not the case.

What was the social unit functioning implicitly as an anchor?

Clearly, the issue at hand was not about the status of both workers as

citizens of the State of Israel, since the frame of reference was their status

within the Bank. Neither was the issue at hand the employment of cleaners

as contractors as opposed to employees, since this is a widespread and legal,

if distasteful phenomenon. From the resulting commotion it can be intuited

that the social unit in question was that of the Worker-Community, which is

why emphasizing the separateness of the cleaner’s legal status was viewed

as a “singling out”, a breach of the community cohesiveness.

In other words, the broad public perceived the mourning parents as

equal members of the same community, that is, equally belonging to the

physical space of the Bank of Israel as a workplace, irrespective of the legal

status attached to their jobs, which is why the wording of the notices, in

emphasizing the differences between them, was deemed so offensive. From

the Bank’s spokesperson’s official response, this was evidently also the way

the Bank viewed the situation, which is what lead the Bank to put up the

notice for both workers in the first place.

Thus, considering the spatial element as an organizing principle in

the conceptualization of the workplace provides a novel perspective on

relations in the workplace, because it frees us from the typically polarized

paradigms of contemporary approaches to the law. Whereas LEL is troubled

26 REGULATING RELATIONS [11-May-17by the existence of different legal statuses of various workers in one

workplace as far as their rights with respect to the employing entity are

concerned, looking at workers as united by the shared space – physical or

virtual – inhabited while they work, reveals additional dimensions of the

experience of being a worker, which are not fully explored by current legal

theories.

2. Common Ties

The common ties in the workplace can be found in a shared lifestyle

generated by a common employing entity. For example, the following

attitude was recorded in research carried out in a retail store:

“Cindy, who worked as a Night Filler, said that there was

community among some of the mothers because of the

commonness of their situation, since a lot of these women

were at home with their children all day and then when their

husbands come home from work, they went off to work.

“Most of the mums tend to stick together.””59

A shared lifestyle could also find expression in the work hours set by

the employer, the food available for the workers, the levels of stress a

certain workplace creates or even management style.60 59 Gilian Vogl, Work as Community: Narratives of Solidarity and Teamwork in the

Contemporary Workplace, Who Owns Them?, 14 SOC. RES. ONLINE (2009), at s4.8 (hereinafter: Vogl Work as Community).

60 Cf Paul Thompson & Chris Warhurst, The Hands, Hearts and Minds: Changing Work and Workers at the End of the Century, in WORKPLACES OF THE FUTURE (Paul Thompson & Chris Warhurst eds., Palgrave Macmillan Press 1998); C.R. Litter, The Labour Process Debate: A Theoretical Review 1974-88, in LABOUR PROCESS THEORY (David Knights & Hugh Willmott eds., Macmillan Press 1990) (addressing the changes in the way work has been organized over the last 25 years, as well as the diversity of developments in the labour process affecting management and control styles).

This is the place to clarify that characterizing the relations between individuals in the workplace as community, is not contingent upon the relations being pleasant or happy, despite these being the connotations of communal life for many people. See for example Marcia P. Effrat, Approaches to Community Conflicts and Complementarities, in THE COMMUNITY: APPROACHES AND APPLICATIONS 1 (Marcia Pelly Effrat ed., 1974): “Like

11-May-17] REGULATING RELATIONS 27Common ties also arise from doing the same work. The following

comment was recorded in research carried out among garbage truck drivers:

“Most of them have been there for a long time and known

each other for a while so it is a bit of a mateship in that sense.

Although you will find that a few of the sections stick

together in a little way so, the recyclers stick with the

recyclers and the garbage truck drivers stick with the garbage

truck drivers.”61

Common ties are defined from a broad perspective such as the common

goal of making a certain company succeed, for example, in which case, all

those involved in the project of making aforesaid company succeed, from

the cleaner to the security guard, from the secretary to the manager, are

united as a community under the same goal.62

Another common tie is that of need or dependence. This plays a

significant role in the context of the Worker-Community because workers

are united in their reliance on the employing entity for income. This

dependence carries over to extra-work communities such as family and

neighborhoods because the degree to which this dependence is met, affects

the worker’s ability to participate in these other communities. Tellingly,

motherhood and apple pie, it [community] is considered synonymous with virtue and desirability. Indeed, much of the problem in identifying the various definitions lies in separating the content of the conception from the value-laden imagery of warmth and camaraderie attached to it in many cases.” There is an alternative discourse about community. For some people, community is the epitome of social terror. Relations in a workplace could be characterized by cut-throat competition or, on the other extreme, take a supportive, team-oriented approach. The analysis of these variations belongs in the field of management sciences. See Douglas Ezzy, A Simulacrum of Workplace Community: Individualism and Engineered Culture, 35 SOC. 631 (2001) criticizing the manipulative use of the idea of community in management sciences, in order to increase production.

61 Vogl Work as Community, supra note 59, at s4.8.62 See NIKOLAS ROSE, GOVERNING THE SOUL: THE SHAPING OF THE PRIVATE SELF

(2d ed., Routledge 1999) describing how as a result of finding meaning in the work, workers began to relate to the product they were producing and perceive their own worth to be tied up with and reflected in the quality of the work they produced. See also CATHERINE CASEY, WORK, SELF AND SOCIETY AFTER INDUSTRIALISATION (Routledge 1995).

28 REGULATING RELATIONS [11-May-17common dependence on the employing entity for income has been the

principle around which union membership - a clear and familiar example of

the Worker-Community - evolved.

On this point it is important to raise the fact that some have argued

that employee generated collectivism is the only real type of employee

community. According to this approach, other forms of employee

community, such as teamwork, mimic the cohesiveness of industrial

culture, with the aim of undermining other forms of more genuine

solidarity, such as the union.63 While I agree that unions have and still do

play a central role in generating community among workers, I disagree with

this essentially monist approach. While the decline of unionism has

negatively impacted workers in many ways, I prefer a more pluralistic

approach to the possibility of communities of workers, one allowing for the

existence of other types of community, even while the union is in place. The

pluralistic approach also recognizes the existence of various alternative

organized groups of employees such as employee caucuses.64

Either way, one of the unique aspects of this element of community,

is that it is in a sense fractured, since the worker can, simultaneously,

belong to a network of overlapping circles of communities in the

workplace, each circle defined by different ties. For example, a worker

could belong to one Worker-Community defined by her employer, another

community defined by shared lifestyle, yet another community defined by

63 See for example, Bill Harley, Team Membership and the Experience of Work in Britain: An Analysis of the WERS98 Data, 15 WORK, EMP. & SOC’Y 721–742 (2001).

64 For more on employee caucuses, see Lobel, Collective Efforts, supra note 51, at n.20 ad Alan Hyde, Employee Caucus: A Key Institution in the Emerging System of Employment Law, 69 CHI-KENT L. REV. 149–193 (1993), arguing that labor law should protect such employee caucuses as a fundamental institution of employee voice. For other types of ways in which employees organize themselves, aside from unions, see R. Geman, , Safeguarding Employee Rights in a Post-Union World: A New Conception of Employee Communities, 30 COLUM. J.L. & SOC. PROBLEMS 369–405 (1997) and Note Labor-Management Cooperation after Electromation: Implications for Workplace Diversity, 107 HARV. L. REV. 678–695 (1994).

11-May-17] REGULATING RELATIONS 29the job that she does for example all the engineers in the company and yet

another community, defined by the engineers on her floor.

Each community suggested so far in this example, is swallowed up

by the preceding community, as they go down in size. Yet this is not always

the case since for example, there may yet be another community of

engineers who work the night shift, some of whom are in her floor and thus

share that community with her, and some of whom are located on another

floor and are therefore members of a separate community. This example

illustrates the way in which common ties function, though communities

constructed in this way only really become “flesh and blood” communities,

when the social interactions they generate are added into the analysis. This

element is discussed in the following section.

3. Social Interaction

While listed here last, this element holds a prominent place in

Hillery’s definition of community and is certainly a salient part of work life,

as most workplaces include more than one person and so one can safely say

that there is social interaction in most workplaces.

More commonly, the workplace forces people to interact with one

another on a day to day basis, whether directly through speech and behavior

or indirectly on the phone, via email or post. This interaction can be around

purely professional tasks, constitute a thin layer of friendly relations or even

go past such a superficial mixing, allowing for the potential development of

much stronger bonds, characterized by dependence and even friendship.

Indeed, positive workplace social interactions can provide emotional

support, recognition and appreciation unsurpassed in other dimensions of

the workers life.65 This social capital constitutes the community and

65See Hochschild, supra note 49, at 27 (documenting how people prefer to be at work than at home and that in about a fifth of families, it was at work and not at home that the

30 REGULATING RELATIONS [11-May-17reinforces it.66

A central aspect of workplace social interaction is the fact that it is a

“repeated game” and often part of a routine. The workers are recurring

players and this affects the way their relationships evolve. As described by

Marks, while the purpose of the worker’s presence may at first be limited to

the setting-specific activity itself, pursuing that activity regularly leads to a

familiarity with “unrelated others” whose purposes have brought them there

for the same reasons.67

This continuous contact along with mutual recognition will often

foster close, self-disclosing relationships.68 In turn, such relationships

construct new private niches within the formal workplace setting69,

facilitating the expansion of their experience of intimacy in the workplace70.

As was described by one interviewee:

“I think in a lot of ways having intimacy with people

that you work with is vital. To feel connected to people that

you are working with. I would hate to work somewhere

where I wasn’t able to share how I feel about a particular

issue or nothing in particular. …It gives you cohesion with

the people that you are working.”71

person felt most competent, most appreciated, most supported ( i.e. could get help with mistakes) and even most secure.

66 See James S. Coleman, Social Capital in the Creation of Human Capital, 94 AM. J. SOC. 95‒120 (1988) (describing social capital as a concept paralleling the concepts of financial capital, physical capital, and human capital-but embodied in relations among persons.

67 See Marks, supra note 49, at 843–859.68 See also Scott Feld, The Focussed Organization of Social Ties, 86 AM. J. SOC.

1015–1035 (1981); GEORGE C. HOMANS, THE HUMAN GROUP (Routeledge 1950).69 Cf LYN H. LOFTHAND, A WORLD OF STRANGERS: ORDER AND ACTION IN URBAN

PUBLIC SPACE (Waveland Press 1973).70 The intimacy described here is the most common type, arising voluntarily and

through chosen interactions. It should be noted that intimacy can also arise involuntarily/passively, simply by virtue of repeated physical and temporal proximity. This also contributes to the creation of community.

71 Vogl, supra note 59, at § 4.6

11-May-17] REGULATING RELATIONS 31This quote shows how routine arising from coming to work in the same

place, day after day and meeting the same people, creates an intimacy,

which, in turn reinforces the Worker-Community.

Another trait, that of mutual vulnerability in the institution or

practice, while not necessarily unique to the worker-community

relationship72, is nonetheless characteristic of it, as was discussed in the

introduction. In addition, vulnerability arises between employees as a result

of the trust which is also part of their relations:

“Associations of all kinds if legitimate, have the benign

effect of protecting their members from all the dangers,

physical, emotional and spiritual, that attend isolation.

Because they involve trust, they also make their members

vulnerable in new ways: not only do their members

implicitly or explicitly waive self-protection, they

participate in creating or supporting new kinds of power of

various kinds…”73

Some have gone even further and argued that vulnerability is in fact a

constitutive element of community.74

To conclude, as the analysis so far has revealed, the central elements

of community can be identified in the archetypal workplace.

72 The special opportunities for mistreatment – including “specially intimate forms of mistreatment” - created in situations of special relationships, are generally recognized, see SAMEUL SCHEFFLER, BOUNDARIES AND ALLEGIANCES – PROBLEMS OF JUSTICE AND RESPONSIBILITY IN LIBERAL THOUGHT 59 (Samuel Scheffler ed., Oxford University Press 1994).

73 See RICHARD VERNON, FRIENDS CITIZENS STRANGERS ‒ ESSAYS ON WHERE WE BELONG 270 (University of Toronto press 2005).

74 “There can be no vulnerability without risk; there can be no community without vulnerability; there can be no peace, and ultimately no life, without community”, see SCOTT PECK, THE DIFFERENT DRUM: COMMUNITY-MAKING AND PEACE 233 (1987).

32 REGULATING RELATIONS [11-May-174. Partial Summary: The Uniqueness of the Worker-Community

This is the place to raise some important clarifications.

There are certain additional and essential characteristics of the

Worker-Community, which set it apart from most other types of

community. These are the involuntary aspect of employee-employee

relations in the workplace and the standard of equality, which applies to the

individuals involved in these relations.

While people may have varying degrees of choice in taking up

employment in a particular workplace, workmates are not generally

involved in selecting one another. In this sense, the members of the Worker-

Community are “stuck together”, so that it is an involuntarily assumed

relationship, although it can be abandoned, with varying degrees of

difficulty, by changing jobs. The organization or job frames the interactions

between employees and determines salient reference points so that the

relations develop through the practice, while the choice of partners for this

relationship is not part of the process.

The second core characteristic is that of equality. As described

above, the physical spatial element emphasized that the individuals in

question are not necessarily employees of the same employer, or workers

with the same legal status or workers with the same level of training

(though for obvious reasons, the owner of the workplace cannot be

considered part of the Worker-Community).75 Yet they are all members of

the same community and therefore of equal value. They are conceptually

equal, in the sense that the life of one cannot be deemed more important

than the life of another.76 Furthermore, this is a legally enforced 75 Colleagues, or members of the same profession, are therefore members of this

community or can have a sub-community of their own. Owners on the other hand are excluded from the Worker-Community because of the independence of their source of income, impinging on their sense of vulnerability at work. Workers often find their solidarity in their mutual vulnerability vis-à-vis the leadership or management.

76 This is equality in the sense referred to by RONALD DWORKIN in LAW'S EMPIRE

11-May-17] REGULATING RELATIONS 33characteristic as evinced by the laws reiterating the right to equality in the

workplace and the prohibition on various types of discrimination.

To conclude, the following working definition of the Worker-

Community, incorporating all the above-discussed elements, is offered: the

Worker-Community is made up of workers involuntarily related through

their work or projects (common ties), and interdependent (social relations),

as equals, in a virtual or physical space (shared space).

As the next section will show, there are ethical ramifications

employee-employee relations that only become evident when these are

constructed as a type of community, the Worker-Community. The various

ties between employees that bind them together, as described above, justify

specific responsibilities between employees as distinct from those between

strangers. These are known as special obligations or special responsibilities

and are now discussed.

III. WHAT ARE THE ETHICAL IMPLICATIONS OF THE WORKER-COMMUNITY?

A. On Special Obligations, Responsibilities and Duties in the Worker-Community

There is much literature describing the special

obligations/responsibilities /duties77 owing to a specific subset of persons as

(Harvard University Press 1986), at 199 which he terms conceptually egalitarian: “They may be structured, even hierarchical, in the way a family is, but the structure and hierarchy must reflect the group’s assumption that its roles and rules are equally in the interests of all.” The point is that they are equal in the eyes of the law and there is no justification for one to be treated differently to another, not by the employer and not by their colleagues.

77 For the sake of this argument, this text does not distinguish between these three terms, though there is much literature that addresses their differences (see for example Richard Brandt, The Concepts of Obligation and Duty, 73 Mind 374–393 (1964); or H.L.A. Hart, Legal and Moral Obligation, in ESSAYS IN MORAL PHILOSOPHY (A.I. Melden ed., University of Washington Press 1958). A common distinction states that obligations must be voluntarily undertaken or incurred, but duties need not be. As an aside, it is worth noting that in the context of the workplace, this distinction is not helpful because one could argue that the very entrance into a workplace is a voluntary act whereby one then commits to the

34 REGULATING RELATIONS [11-May-17opposed to natural duties owed to all persons simply by virtue of their being

human.78 Various types of considerations are invoked to explain this

phenomenon.79 One kind of explanation is the existence of a special kind of

interaction, such as a promise or agreement, or a debt owed to someone

because of something that was done for us, or because of harm we inflicted

on someone.

Another kind of explanation arises from special relationships we

have with people, such as family, friends, neighbors, colleagues, teammates,

clients, common membership in a group, membership in a community and

so on.80 In such contexts, duties may even arise between people who have

never met or directly interacted, out of the conviction that shared group

membership is sufficient to generate such responsibility. Despite some

controversy around this latter situation creating duties, common sense

morality would have it that valued human relationships are seen as

generating special duties: “It seems that whenever people value an

interpersonal relationship they are apt to see it as a source of special duties

obligations it entails, without requiring specific agreement, so that what seemed like obligations from outside the workplace become duties, from within). Either way, in this text, the terms are used interchangeably.

78 See for example, Arash Abizadeh & Pablo Gilabert, Is There a Genuine Tension between Cosmopolitan Egalitarianism and Special Responsibilities?, 138 PHIL. STUD. 349–365 (2008); Diane Jeske, Families, Friends, and Special Obligations, 28 CANADIAN J. PHIL. 527–556 (1998); Diane Jeske, Associative Obligations, Voluntarism, and Equality, 77 PAC. PHIL. Q. 289–309 (1996).

79 This article consciously side steps some complex and important philosophical debates, such as whether the duties discussed are moral or otherwise. The aim of the Worker-Community model is to draw attention to a common sense morality that pervades communal relations, according to which being a member of a community creates certain duties towards other members of the community.

80 This type of explanation is discussed in some detail by Samuel Scheffler, Relationships and Responsibilities, 26 PHIL. & PUB. AFFAIRS 189 (1997) (hereinafter: Scheffler, Relationships). It is important to emphasize that the focal point of Scheffler’s debate and of this discussion is duties individual members have to one another, as distinct from duties individual members may or may not have to the group. In the context of the workplace, the relevant group organizing workers would be the union. This paper does not purport to address that relationship and like Scheffler, remains agnostic on this point (id, at 197).

11-May-17] REGULATING RELATIONS 35or obligations.”81 In other words, from the perspective of special obligations

literature, the Worker-Community entails duties between the employee

members.

A similar approach can be found in Hardimon’s account of

obligations that are attached to certain institutionally defined roles, namely

“political, familial, and occupational roles”, where a role is a

“[constellation] of institutionally specified rights and duties organized

around an institutionally specified social function”.82 A role obligation,

according to Hardimon, is “a moral requirement, which attaches to an

institutional role, whose content is fixed by the function of the role, and

whose normative force flows from the role”.83 Some role obligations attach

to unchosen social roles, but only to social roles that are reflectively

acceptable, that is, a role which one would accept upon reflection.

Determining whether a given social role is reflectively acceptable involves

stepping back from that role in thought and asking whether it is a role

people ought to occupy and play. Determining that a given social role is

reflectively acceptable involves judging that it is in some ways meaningful,

rational, or good. Clearly, employment and the role of employee fill these

criteria.84

Yet another example of a similar approach can be found in 81 Id. at 190. This is the point to raise a distinction Scheffler makes, which is

particularly pertinent in the context of Worker-Community: 'The existence of a relationship that one has reason to value is itself the source of special responsibilities, and these responsibilities arise, whether or not the participants actually value the relationship.' (SCHEFFLER, supra note 72, at 201). In other words, the duties arise even when on a subjective level, the worker does not value these relations, if there is an objective reason to value these relations. As I showed in the previous section, this prerequisite is certainly fulfilled in the context of workplace relations.

82 Michael Hardimon, Role Obligations, 91 J. PHIL. 333, 334 (1994).83 Id.84 It should be noted that this term is often used to refer to special duties of doctors to

their patients, lawyers to their clients and teachers to their students. While Hardimon included these relationships in his idea of “role obligations”, alongside duties of family members to one another, I think they are different since they do not really arise from shared membership in a group, which is why I do not adopt this term in the main text above.

36 REGULATING RELATIONS [11-May-17Dworkin’s associative obligations.85 Dworkin writes about “associative” or

“communal” obligations as explicitly including office colleagues, though

his aim in Law’s Empire is to present a defense of political legitimacy and

this is a small, if vital step in that direction. Nonetheless, in the process, he

presents a detailed description of just how communities such as those

among colleagues or co-workers, function to create obligations between the

co-members.

Dworkin uses the term “associative” or “communal” obligations to

refer to “special responsibilities social practice attaches to membership in

some biological or social group, like the responsibilities of family or friends

or neighbors”.86 While Dworkin finds these are less studied by philosophers

than other types of personal obligations, he notes that “for most people,

responsibilities to family and lovers and friends and union or office

colleagues are the most important, the most consequential obligations of

all.”87 He emphasizes that the source of these obligations is social practice,

which serves to define both the communal groups to which we belong and

the obligations that attach to these, qualifying these as being dependent on

interpretative attitude, among other conditions.

Dworkin outlines additional conditions which must be met in order

for community members to have a duty to honor responsibilities under

social practices that define groups and attach special responsibilities to

membership. According to Dworkin’s conception of communal relations,

one condition refers to an abstract form of reciprocity that relates to the sort

and level of sacrifice one may be expected to make for another and the

responsibility owed to other members. This is how he defines the four

essential attitudes about responsibilities owed:

85 Dworkin, supra note 76.86 Id. at 196.87 Id. at 196.

11-May-17] REGULATING RELATIONS 37”First, they must regard the group's obligations as

special, holding distinctly within the group, rather than as

general duties its members owe equally to persons outside

it. Second, they must accept that these responsibilities are

personal: that they run directly from each member to each

other member, not just to the group as a whole in some

collective sense.... Third, members must see these

responsibilities as flowing from a more general

responsibility each has of concern for the well-being of

others in the group... Fourth, members must suppose that

the group's practices show not only concern but an equal

concern for all members. Fraternal associations are in that

sense conceptually egalitarian. They may be structured,

even hierarchical, in the way a family is, but the structure

and hierarchy must reflect the group’s assumption that its

roles and rules are equally in the interests of all, that no

one’s life is more important than anyone else’s.”88

Not only are these are all present in the workplace community, they also

emerged as themes in the previous sections above.

A community meeting these conditions is called a “true”

community, in contrast to a “bare” community, which merely meets the

genetic or geographical or historical conditions identified by social practice

as capable of constituting a fraternal community. It must however be

emphasized that as far as Dworkin is concerned, these are not psychological

conditions or properties that some fixed number of members must actually

feel, since it is not even necessary that members of true communities all

know each other. Rather, this goes back to the abovementioned

88 Id. at 199–201.

38 REGULATING RELATIONS [11-May-17interpretative attitude and they are intended to inspire common ideas of the

relationship to facilitate the requisite reciprocity at the base of associative

duties.

As we have seen, Dworkin accounts for the dynamics that create

obligations within communities and between members, taking the

workplace as an example, among others. He describes the necessary

conditions for such duties to emerge, addresses the issue of choice and

details how conflicting duties can be resolved. While this is done with

another aim in mind, that of justifying political obligations, in the process,

he usefully shows us how being a member of a Worker-Community may

justify the development of obligations between employee members.

While the practical legal implications of these ethical duties are

examined in Part V, it is pertinent to consider them in the specific context of

the workplace. General examples of special obligations perceived as being

typical of the workplace could be special duties of communication,

consideration and trust. More concrete examples of the special duties which

could intuitively be seen as arising in the workplace could include: honesty,

informing others about common affairs, consulting them on decisions

affecting them, discussing matters likely to elicit different viewpoints, and

supporting others in their interaction with the management and wider

institution. Similarly, people may feel a responsibility to help new co-

workers find accommodation and negotiate the bureaucracy of relocating to

a new area or workplace.

However, special relationships or duties between employees as

members of the Worker-Community can create unique dilemmas. There is a

range of workplace communities that elicit duties between members, some

of which may be virtuous communities whilst others are deeply immoral.

Some examples of less virtuous workplace communities include illegal

11-May-17] REGULATING RELATIONS 39businesses such as drugs or prostitution rings, or the more mundane corrupt

corporations. Could special obligations in some circumstances require the

individual to behave badly?89

One solution is to say that group members have straightforward

duties to one another even when the framework to which they belong is a

negative one. Even in a company that has become corrupt, workers finding

themselves in a common predicament may have obligations to one another

that are independent of any commitment to the framing institution.90

Furthermore, prima facie special obligations of workers may be limited by

considerations of justice or more pressing commitments. For instance we

may recognize that members of a police force have special obligations to

one another without thereby justifying their concealing corruption or giving

false evidence out of loyalty to one another.91

89 The idea of special responsibilities or obligations should be distinguished from the idea of partiality, which has been described as the claim that it is morally right to give a higher priority in one’s actions to the good of those to whom we stand in certain sorts of relationship (friend, teacher, parent) than to those to whom we stand in no relationship, everything else being equal (Lawrence Blum, Against Deriving Particularity, in MORAL PARTICULARISM 205, 208 (Bard Hooker & Margaret Olivia Little eds., Clarendon Press 2000). By contrast, special obligations establish duties arising from such relationships but do not say anything about how to prioritize the different duties under which an individual may find herself. See for example Scheffler, Relationships, supra note 80.

This is the place to point out that partialism is sometimes referred to as particularism however, it in fact addresses a different situation, also worth being clarified here. Particularism, as opposed to Generalism, is the view that there are no overriding principles that can be abstracted to apply to every case. In emphasizing the particularity of local contexts, it might seem to support the partialist’s view however, this is not the case, since the particularist would reject the broad application of the principle represented by the partialist stand. For more, see Vernon, supra note 73, at 202; JONATHAN DANCY, MORAL REASONS (Blackwell 1993). Jonathan Dancy, Moral Particularism, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2013), available at http://plato.stanford.edu/archives/fall2013/entries/moral-particularism/>.

90 See for example Heinisch v. Germany no. 28274/08 ECHR 2011, in which the European Court of Human Rights overturned a ruling by the Berlin Labor Court of Appeals (confirmed by the Federal Labor Court), which supported the dismissal of an applicant who had allegedly violated her duties as an employee by blowing the whistle on her employer (a company specializing in health care, geriatric care and assistance to the elderly), who was failing to address problems of staff shortages adversely affecting the remaining employees’ ability to carry out their jobs.

91 These questions relate to the issue of partiality in professional relationships. For a

40 REGULATING RELATIONS [11-May-17In other cases, external obligations may take precedence, for

example a teacher's obligation to another teacher may be overridden by the

needs of a student. Similarly, an employee in a corrupt public organization

may be under a duty to blow the whistle on corrupt practices, even if that

makes the lives of corrupt co-workers harder.92 As mentioned above,

Scheffler’s nonreductionist approach is not committed to a particular

strength or content in special responsibilities and accepts that a special

responsibility can be outweighed by other considerations.93

Different resolutions to these dilemmas have been offered though it

is not within the scope of this section to review them all, especially since

they touch upon other controversies related to the inner justifications of

special responsibilities.94 Suffice to say, I accept the qualification that one

should distinguish between relationships which there are reasons to value,

from relations that people may in practice value, so that only the former

detailed debate about prioritizing duties arising out of professional commitments, see Brenda Almond, Reasonable Partiality in Professional Relationships, in 8 ETHICAL THEORY & MORAL PRACTICE 155–168 (2005), asking whether it may be both reasonable and right to prefer the interests of a client to those of others who are not clients, or, whether professionals have, from a moral or even legal, point of view, special privileges? In particular, do they have some kind of moral dispensation that allows them to favor the interests of their clients in a way that could, in certain circumstances, over-ride the interest of particular others or even the public interest?

92 Cf Orly Lobel, Citizenship, Organizational citizenship, and the Laws of Overlapping Obligations, 97 CAL. L. REV. 433 (2008) (describing the conflicting loyalties in which an employee may find herself, especially in contexts of institutional corruption, when the employee must choose between loyalty to a corrupt system, loyalty to co-workers and loyalty to the public interest).

93 As mentioned above, Scheffler’s nonreductionist approach is not committed to a particular strength or content in special responsibilities and accepts that a special responsibility can be outweighed by other considerations (see Scheffler, Relationships, supra note 80, at 199).

94 See for example, Alistair Macleod, Moral Permissibility Constraints on Voluntary Obligations, 43 J. SOC. PHIL. 125–139 (2002) (arguing that special moral obligations can only arise from voluntary actions and choices that are morally justifiable), or David Miller, Reasonable Partiality Towards Compatriots, 8 ETHICAL THEORY & MORAL PRAC. 63–81 (2005) (arguing that special obligations arise only from relationships that are intrinsically valuable and the attachments that ground them cannot inherently involve injustice). Dworkin also weighs in on this point, in his chapter Conflicts with Justice, in DWORKIN, supra note 76, at 202–206.

11-May-17] REGULATING RELATIONS 41generate valid special obligations.95 As Scheffler argues, the workplace

relationship, and the interpretation of the obligations arising from it must be

subjected to critical reflection, so that it may be limited or overridden by

other considerations. Consequently, there is no generalized loyalty giving

priority to co-workers in every domain, and irrespective of all other

considerations. “Special responsibilities need to be set within the context of

our overall moral outlook and constrained in suitable ways by other

pertinent values.”96

Finally, it is important to note that the duties entailed in workplace

relations are highly variable and will change depending on the workplace.

Nonetheless, they can be delineated generally, and are experienced as real

and as distinct from the civility people instinctively feel they owe to

strangers. For example, while partly reciprocal, they do not necessarily

require the same actions from everyone.97 They are different for people in

different stages of their lives, for example older workers may be expected to

introduce new ones to the system and encourage their development,

younger ones may be expected to be sensitive to existing practices, and to

invest time in learning how the specific workplace functions.

B. Arguments in Support of the Worker-Community Model

1. The Worker-Community Model Promotes an Ethical Workplace, which may also Increase Efficiency and Productivity

Community has been described as a focal point of shared

expectations about how people should behave, shaping social norms and

95 Joseph Raz, Liberating Duties, 8 LAW & PHIL. 19 (1989).96 Scheffler, Relationships, supra note 80, at 207.97 Hanoch Dagan & Avichai Dorfman, The Justice of Private Law 17 (2015) available

at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2527970.

42 REGULATING RELATIONS [11-May-17moving beyond individual interests.98 Such shared expectations are inherent

even to heterogeneous communities, such as the workplace and in that

sense, the Worker-Community is something of a social melting pot.99 Indeed, according to one account, the community should be viewed as

“webs of social relations that encompass shared meanings and above all

shared values.”100

What are the values that appear with regularity in discussions of

communities? Community is often regarded as a means of generating

abstracted relations of trust, reciprocity, and mutual obligation.101 These

qualities are often linked to tolerance as well, that is, openness to others,

curiosity and perhaps even respect.102

As regards reciprocity, its functioning in the community has been

described in the following way: “I’ll do this for you now, without expecting

anything immediately in return, and perhaps without even knowing you,

confident that down the road you or someone else will return the

favour’.”103 Closely linked to norms of reciprocity, trust is the confident

expectation that people will act in a consistent, honest and appropriate

way.104 Social trust enables people to cooperate and develop and

communities to flourish.

In the context of actual communities, these shared values do not

98 Gregory S. Alexander, Dilemmas of Group Autonomy: Residential Associations and Community, 75 CORNELL L. REV. 1, 21–28 n.4 (1989).

99 On workplace heterogeneity see ESTLUND, supra note 26.100 Amitai Etzioni, Introduction: A Matter of Balance, Right and Responsibilities, in

THE ESSENTIAL COMMUNITARIAN READER xiii (Rowman & Littlefield Lanham 1998).101 See PAUL JAMES ET AL, SUSTAINABLE COMMUNITIES, SUSTAINABLE

DEVELOPMENT 14–20 (University of Hawai’i Press 2012), at 18.102 See for example MICHAEL WALZER, ON TOLERANCE 11 (Yale University Press

1998). 103 ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF

AMERICAN COMMUNITY 274 (Simon & Schuster 2001).104 See for eg JAMES C. COLEMAN, FOUNDATIONS OF SOCIAL THEORY (Harvard

University Press 1990); ROBERT D. PUTNAM, MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY (Princeton University Press 1993).

11-May-17] REGULATING RELATIONS 43remain abstract and there is an expectation that communal life will be

imbued with these values, which, it has been argued, creates duties.105 Even

without common values, the existence of various forms of ties between

employees in the workplace community, entails specific responsibilities

between employees as distinct from those between strangers, as described

above.

Constructing the workplace as a Worker-Community, including its

incumbent duties, enables workers to draw on a moral framework, which is

expected to influence their behavior and guide their choices towards more

respectful and ethical terms. The value of maintaining a high ethical

standard among workers is evident on a number of different planes.

First, from a broad social perspective, the workplace can be seen as

a site of civil society with the law promoting social inclusion both in the

workplace and beyond it.106 Consequently, ethical conduct in the workplace

can be expected to spill out into other areas of life and have a positive

impact on them as well.

Second, progressive perceptions in the organizational social sciences

see a connection between maintaining an ethical workplace and increases in

efficiency and productivity. In general, it has been argued that LEL

contributes to economic growth and development and that it has a “market

constituting” role or even a “market creating role”107. Practical application 105 This is in line with the voluntarist approach to special obligations. Their argument

is that if one voluntarily lead another to expect that a given action will be performed, then one is likely to make plans on the basis of that expectation. One is obligated not to upset the plans that another has made on the basis of one’s voluntary actions that one knew would raise the expectations of the other. See Diane Jeske, Special Obligations, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY s.7 (Edward N. Zalta ed., 2014), available at http://plato.stanford.edu/archives/spr2014/entries/special-obligations/ (hereinafter: Jeske, Special Obligations). This argument is more typically made in the context of family relations, for example in Christina Hoff Sommers, Filial Morality, 83 J. PHIL. 439–456 (1986), and therefore is not explored fully here.

106 ESTLUND, supra note 26. See also Peter Levine, The Legitimacy of Labor Unions, 18 HOFSTRA LAB. & EMP. L.J. 529, 567–568. (2001)

107 See Simon Deakin, The Contribution of Labour Law to Economic and Human

44 REGULATING RELATIONS [11-May-17of the Worker-Community model will lead to legislation which can be

expected to reinforce this effect.

Finally, as mentioned above, research indicates that ethical behavior

can also directly maximize productivity and efficiency.108 The connection

between ethics and efficiency or productivity is a much researched topic,

addressed by many disciplines. Beyond there being a lack of conflict or

contradiction between business efficiency and ethical behavior109, a direct

connection between ethical behavior and economic efficiency has also been

shown.110

I suggested above that ethical behavior in the workplace leads to

productivity, which is good for the employing entity but it can also be

viewed as being good for the individual workers. These are likely to enjoy a

sense of satisfaction if they are able to fulfill their potential in the

workplace, unimpeded by the negative behavior of co-workers and

supported by positive ethical acts.

2. The Worker-Community Model Reinforces Community along with its Positive Offshoots

Many positive effects have been ascribed to being part of a Development, in THE IDEA OF LABOUR LAW 156, 162 (Brian Langille & Guy Davidov eds., Oxford University Press 2011). For the research potential arising from applying micro-economic analysis to LEL, see Lilach Luria et al, Employment law, in HANDBOOK OF LAW & ECONOMICS IN ISRAEL (Uriel Frucaccia ed., 2012).

108 See for example, Werner Erhard et al, Integrity: A Positive Model That Incorporates the Normative Phenomena of Morality, Ethics, and Legality – Abridged (Harvard Bus. School, Working Paper, No. 10-061, 2010). See also Michael C. Jensen, Integrity: Without It Nothing Works (Harvard Bus. School, Working Paper, No. 10-042, 2009) and See for example Steven H. Appelbaum et al, The Relationship of Ethical Climate to Deviant Workplace Behaviour, 5 CORPORATE GOVERNANCE 43–55 (2005).

109 See for example APPLIED ETHICS: REMEMBERING PATRICK PRIMEAUX 19 (Michael Schwartz & Howard Harris eds., 2012).

110 PUBLIC POLICY: WHY ETHICS MATTERS C.11 (Jonathan Boston et al eds., 2010) presenting empirical evidence that markets need people to act with a degree of trust and integrity otherwise the costs and risks of contracting are greatly increased. It further posits that ethical behavior may influence a country’s overall economic performance as well, showing a positive relationship between indicators of ethics and economic output.

11-May-17] REGULATING RELATIONS 45community. One example is social capital.111 Social capital is an offshoot of

community, since it relies on social networks and the norms of reciprocity

and trustworthiness that arise from them. Social capital, as an idea, is

related to a similar concept, that of civic virtue, which has been described as

the sort of interaction enabling people to “knit the social fabric”112. These

ideas reflect the understanding that an individual’s well-being is not solely

attributable to their talents, but instead, builds on the goods arising from

various types of social cooperation.

In political theory, the typical examples of publicly supported goods

include transportation, schools and other types of infrastructure. Example in

the workplace might include charity funds aimed at helping poorly co-

workers, or committees working to raise money together for external cases,

for example or even a greater sense of personal safety in the workplace.

None of these would be required by the Worker-Community model,

however, given the emphasis it places on reciprocal social relations, it is

highly likely that such positive offshoots could emerge. In emphasizing

community, the Worker-Community model reinforces the communal

aspects of workplace relations between employees, which increases social

capital and could facilitate further benefits for others.

An additional advantage attributed to social capital, is economic

prosperity. This connects to the opportunities that open up to members of

social networks, but also to the safety net such membership provides during

times of hardship.113 So too, Putnam has argued that social capital is good

for your health.114

111 For a detailed definition of social capital, see Coleman supra note 66.112 CHRISTOPHER BEEM, THE NECESSITY OF POLITICS – RECLAIMING AMERICAN

PUBLIC LIFE (University of Chicago Press, 1999).113 See PUTNAM, BOWLING ALONE, supra note 103. at 319–325114 Id. at 331.

46 REGULATING RELATIONS [11-May-173. The Worker-Community Model Contributes to the Growing Duties

Narrative

Since the Worker-Community has been shown to entail special

duties between co-workers, it is evident that one of the byproducts of the

Worker-Community is the enrichment of the duties discourse. But in what

way can the particular connotations of duties and obligations, as opposed to

rights, be seen as positive?

Before answering this question, it is important to clarify that the

following discussion does not aim to contribute to the general debate

regarding the question whether duties are derived from rights or whether

they are fundamental or correlative to rights.115 Irrespective of the

relationship the special duties described above, have with rights, it is clear

that there is particular value to duties, which is not semantic and different to

the value embodied by the language of rights.116

Stoljar has argued that rights and duties each make their own

distinctive contribution to the relationship of complementarity that exists

between them. Consequently, they should not be considered as mirror

images of one another and they do not contain the same conceptual

115 Literature discussing this question includes: WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter Wheeler Cook ed., 1919) and John Hardwig, Should Women Think in Terms of Rights?, 94 ETHICS 441–455 (1984). Although rights do imply correlative duties, a theory of duty can be developed that does not presuppose or imply a correlative theory of rights (Id. at 443). On the difference between perfect and imperfect duties see DOUGLAS HODGSON, INDIVIDUAL DUTY WITHIN A HUMAN RIGHTS DISCOURSE 30 (Ashgate Publishing Limited, 2003). See also C.H. Whitely, On Duties, 53 PROCEEDINGS ARISTOTELIAN SOC’Y 95, 97 (1953); David Lyons, The Correlativity of Rights and Duties, 4 NOUS 45, 54–55 (1970); David Braybrooke, The Firm but Untidy Correlativity of Rights and Obligations, 1 CANADIAN J. PHIL. 351, 360–362 (1972); Marcus G. Singer, The Basis of Rights and Duties, 23 PHIL. STUD. 48, 49 (1972). For a review of the main approaches regarding the types of relationship between duties and rights, see Alon Harel, Theories of Rights, in BLACKWELL’S GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY 191–206 (Martin P. Golding & William Edmundson eds., 2005) (hereinafter: Harel, Theories)..

116 See for example HENRY STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 362 (2d ed. Oxford University Press 2000), 342.

11-May-17] REGULATING RELATIONS 47elements, even as they are, in his opinion, interlocking.117 Specifically,

Stoljar has described rights as having a distinct generality compared with

the relative specificity of duties. According to Stoljar, rights are typically

formulated in more general terms and require a catalogue of duties telling

the duty-holder how to behave, including prescriptions or proscriptions, in

order to have effect.

One very well-known elaboration of the uniqueness of the duties

discourse was written by Robert M. Cover.118 In his article, he shows how

speaking about the same idea in terms of rights or duties has a different

effect, which illustrates Stoljar’s argument described above. He gives the

example of the “right to an education”.119 This formulation provides no

indication of who is meant to act in order to enable the individual to fulfill

this right, which can be an obstacle to this right having any meaning.

However, by using the language of “duty”, one is compelled to name the

body responsible to act, making the norm more effective. Put otherwise,

duties are about specific conduct for which one is answerable –

commissions or omissions protecting interests - whereas rights define those

interests and an area of freedom. Rights relate to benefits whereas duties

impose burdens responding to those benefits.

Thus, aside from contributing to the general movement in support of

an increased use of duties as normative tools120, the language of duties as 117 SAMUEL STOLJAR, AN ANALYSIS OF RIGHTS 39 (Palgrave Mcmillan 1984), at 46–

47, arguing against the thesis of redundancy of rights as presented for eg in C. Arnold, Analyses of Right, in HUMAN RIGHTS 74, 77 (Eugene Kamenka & Alice Her-soon Tay eds., 1978).

118 Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L & RELIGION 65–74 (1987).

119 Id. at 71.120 Some examples include: The CLS movement - David Kennedy, Boundaries in the

Field of Human Rights: The International Human Rights Movement: Part of the Problem?, 15 HARV. HUM. RTS. J. 99, 115 (2002); Karl E. Klare, Legal Theory and Democratic Reconstruction, 25 U. BRITISH COLUM. L. REV. 97 (1991) (from the point of view of criticizing the ability of rights tradition to bring about social change); some outside the western world view the rights discourse as alien and harmful to their states or cultures,

48 REGULATING RELATIONS [11-May-17opposed to rights within the Worker-Community is effective in providing

concrete guidance for desired behavior. The vocabulary of duties and

obligations inherent to the Worker-Community facilitates the clear

formulation of norms of behavior, so that there is no need for costly

recourse to a third party who can decide on the content of the norm. The

“duties” formulation of the right way to behave has the potential to be self-

evident, which is a significant advantage in the crowded and stressful lives

of people at work.

The practical effectiveness of the use of the duties narrative is

reinforced in light of insights from expressive-law theorists.121 These argue

that individuals respond to the expressive signals embodied with the legal

system out of a natural inclination to considerations of duty and legitimacy.

In other words, the mere expression of a prohibition or obligation provides a

reason for people to comply.122 There are different reasons brought to

explain this tendency, for example, that citizens view law as information

disruptive to traditional social structures and subversive of authority. This is essentially a cultural relativist argument for eg JOMO KENYATTA, FACING MOUNT KENYA: THE TRIBAL LIFE OF THE GIKUYU 109 (1965); See InterAction Council, A Universal Declaration of Human Rights and Responsibilities, in A GLOBAL ETHIC AND GLOBAL RESPONSIBILITIES: TWO DECLARATIONS 6 (Hans Küng & Helmut Schmidt eds., 1998); Makau Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 VA. J. INT. L. 339, 344 (1995); Jason Morgan-Foster, Third Generation Rights: What Islamic Law Can Teach the International Human Rights Movement, 8 YALE H.R. & DEV. L.J. 67 (2005); Annemarie Devereux, Should 'Duties' Play a Larger Role in Human Rights? – A Critique of Western Liberal and African Human Rights Jurisprudence , 18 UNSW L.J. 464 (1995); From the direction of feminism and the ethics of care, see Hilary Charlesworth, Feminist Approaches to International Law, 85 AM. J. INT’L L. 613 (1991). See also Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT LEGALISM/LEFT CRITIQUE.

121 This approach was one of the central theoretical assumptions underlying valuable empiric research into the comparable effectiveness of various regulatory mechanisms such as protections, duties, fines, and monetary incentives in the context of employees reporting misconduct. See Yuval Feldman & Orly Lobel, The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties, and Protections for Reporting Illegality, 87 TEX. L. REV. (2010).

122 See for example Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2024 (1996): “[T]he expressive function of law [is] the function of law in ‘making statements’ as opposed to controlling behavior directly.”

11-May-17] REGULATING RELATIONS 49that helps them make decisions, or that the need to belong to a group

includes compliance to norms endorsed by the group.123 Either way,

imposing duties as opposed to rights between employees, has the potential

to send a clear message regarding the desired form of behavior between co-

workers and to lead to an improvement of the experience of being at work.

IV. THE LEGAL IMPLICATIONS OF THE WORKER-COMMUNITY MODEL

As I have argued, the Worker-Community paradigm encapsulates

the essence of employee-employee relations, so that it becomes evident that

they are an instance for special obligations and that there is ethical meaning

to being a worker, vis-à-vis one’s co-workers. This perspective sheds a new

light on some existing legal issues, presenting potential practical

applications of the Worker-Community. These are now discussed.

A. Anti-Bullying Legislation

The first and most immediate practical insight arising from the

Worker-Community, addresses the negative behaviors evident in the

workplace and indicates that all types of bullying behavior and harassment,

whether sexual, or otherwise, should be considered illegal. A special

obligation requiring workers to treat each other with respect is one of the

first moral principles to emerge out of the Worker-Community paradigm,

which directly impacts existing laws in this respect.

Thus, the Worker-Community presents a justification for anti-

123 Richard H. McAdams, An Attitudinal Theory of Expressive Law, 79 OR. L. REV. 339, 358–372 (2000) (describing expressive law as an information-signaling system). See also Richard H. McAdams & Janice Nadler, Testing the Focal Point Theory of Legal Compliance: Expressive Influence in an Experimental Hawk/Dove Game, 2 J. EMPIRICAL LEGAL STUD. 87, 108–118 (2005) (presenting results of empirical study supporting the claim that third-party legal expression influences behavior by creating a focal point around which individuals coordinate).

50 REGULATING RELATIONS [11-May-17bullying legislation, in light of the fact that this is an acutely employee-

employee problem. Since employer-employee relations are contractual, it is

theoretically possible to provide some remedy to employees who are bullied

by their bosses, even in countries where no specific anti-bullying legislation

exists.124 Where employee-employee relations are concerned, the

recognition of special duties between employees indicates the standard of

what amounts to actionable harassment, whether sexual or otherwise and

can be developed into grounds for a suit at law.

By providing a strong theoretical basis for legislation against a

broad conception of harassment, the Worker-Community model pre-empts

many of the critics of general anti-harassment laws aimed at expanding the

prohibition against sexual harassment to include bullying. This is because it

does not necessarily require a change in sexual harassment laws nor their

expansion to cover bullying, but rather provides an alternative basis for the

legal prohibition of all types of employee-employee harassment, one

founded on a coherent conceptualization of workplace relations and their

resultant moral duties.

As such, the Worker-Community-based justification for anti-

bullying legislation does not threaten sexual harassment laws in the way

that is done by attempts to expand sexual harassment laws, to include

bullying. Rather, it provides a new justification for existing sexual

harassment laws, thus reinforcing them. Concurrently, this approach may

have the potential to succeed where other bills have failed, because it is not

framed as “another type of sexual harassment law” aimed at specific

behavioral pathologies. With all the achievements of sexual harassment

laws, they shook up the workplace so that the idea of additional such laws

may be perceived as threatening. Furthermore, repeated ad hoc legislation

124 Such as the United States.

11-May-17] REGULATING RELATIONS 51lacking a coherent theoretical basis creates problems of coordination. By

arising from a broad-based perspective as opposed to being the result of a

minority-oriented lobby, a Worker-Community-based anti-bullying bill may

have a greater chance of being legislated.

B. Changes to Current Regulation of Sexual Harassment

The Worker-Community paradigm also has implications for the

substantive rules against sexual harassment. There are legislatures that treat

sexual harassment carried out by a person in a position of authority in the

workplace as more severe than sexual harassment between equals, in that

they bypass the requirement that the victim express resistance. The moral

duties emerging from the Worker-Community bring to light the grounds for

considering treating sexual harassment at the hands of co-workers in a

similar way, by pointing to the vulnerability that characterizes relations

between employees. Thus, one of the implications of the Worker-

Community model indicates that instead of treating sexual harassment by a

person in a position of authority in the workplace as a unique situation, one

which justifies the bypassing of the requirement of resistance, all instances

of sexual harassment in the workplace should justify the bypassing of the

requirement of resistance and be treated as a unique instance of sexual

harassment.

In other words, the Worker-Community model brings to the

forefront the understanding that sexual harassment at the hands of a co-

worker, may embody similar characteristics as those recognized where

sexual harassment by a person in a position of authority at the workplace, is

concerned. The justifications for bypassing express resistance in sexual

harassment by a person in a position of authority at the workplace, are also

present when this occurs between co-workers, as a result of the vulnerability

52 REGULATING RELATIONS [11-May-17inherent in these relations.

The Worker-Community model can also be seen as providing

insights with regard to the criminalization of verbal sexual harassment, that

is, repeated sexual suggestions when the target has expressed their lack of

interest, or humiliating treatment addressing the target’s gender or sexual

preference, which does not require the target to express a lack of interest in

the attention, ie when the mere attention in itself is criminal.

The justifications for criminalizing verbal sexual harassment have

been criticized125, despite the fact that there is no denying that this is

undesirable behavior. The challenge raised addresses, among other things,

the higher level of proof required in criminal proceedings, as compared to

civil law. Given the fact that sexual harassment typically occurs when the

target is alone with the perpetrator, it may be difficult to collect evidence of

the criminal behavior. This is particularly true of verbal sexual harassment,

which typically does not leave physical evidence of its occurrence. This

may indicate why criminal convictions regarding verbal sexual harassment

are not more common. The signal that a low rate of convictions alongside a

high rate of acquittals based on insufficient evidence sends to potential

perpetrators, risks reinforcing negative norms as opposed to discouraging

them.126

Instead of supporting criminalization, the Worker-Community

points to an alternative solution regarding how verbal sexual harassment

125 See for example, Tatjana Hornle and Mordechai Kremnitzer Human Dignity as a Protected Interest in Criminal Law 44 ISR. L. REV. 143 (2011).

126 Given the obstacles to collecting and interpreting data on sexual harassment, there is a shortage of reliable data on the forms and extent of sexual harassment. This issue is addressed in MARGARET A. CROUCH, THINKING ABOUT SEXUAL HARASSMENT: A GUIDE FOR THE PERPLEXED (2001) at page 138. See also Vicki Schultz & Stephen Petterson, Race, Gender, Work, and Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation, 59 U. CHI. L. REV. 1073, 1091 (1992), discussing the difficulty of drawing conclusions from published judicial decisions, in the field of sexual harassment.

11-May-17] REGULATING RELATIONS 53should be treated, at least when it occurs in the workplace, between

employees. By viewing verbal sexual harassment as a violation of a basic

obligation owed to one’s co-workers, as members of the Worker-

Community, it raises the possibility of a system of rules and sanctions for

their violation that would be effective on the communal level. The practical

aspects of such an application of the Worker-Community approach are now

discussed.

C. A Communal Disciplinary Regime Functioning as a Type of ADR

The idea of a community suffused with mutual moral obligations,

can offer the basis for the development of an internal system of rules and

sanctions that would act as an internal governance regime. While unions are

widely recognized as promoting self-governance between employees,127 the

pre- or non-union stage of the regulation of employee-employee relation is

generally not addressed, despite its growing prevalence. The Worker-

Community brings the pre- or non-union stage of employee-employee

relations to the foreground, exposing the lack of coherent regulation and the

problems emerging from this state of affairs.

Disciplinary law as we know it, emerged from the limitation of

managerial power, with which the employer was endowed by virtue of her

ownership of the enterprise128. Workers sought to gain basic rights such as

127 See for example Archibald Cox, The Legal Nature of Collective Bargaining Agreements, 57 MICH. L. REV. 1, 2, 5–9 (1958); PHILLIP SELZNICK, LAW, SOCIETY, AND INDUSTRIAL JUSTICE (1969). For a critical perspective on the self-regulatory conception of collective bargaining, see Katherine Van Wezel Stone, The Post-War Paradigm in American Labor Law, 90 YALE L.J. 1509, 1514–1517 (1981).

128 Common law countries take an approach commonly described as “institutional” in that the disciplinary power emanates from the manager’s prerogative, as a form of responsibility for interests of all those in the workplace. Other countries, such as Japan, take an approach which can be described as “contractual”, in that as a result of the employee’s subordination to the employer, the latter has the authority to do whatever is necessary to ensure the job gets done. See See M.-E Banderet, “Discipline at the workplace: A comparative study of law and practice. 1: The sources and substance of

54 REGULATING RELATIONS [11-May-17due process, representation and so on, in the attempt to mitigate the way the

employer exercised her power and these were granted through negotiations

over working conditions, in return for various concessions on the part of the

workers. So while the sources of disciplinary law may include legislation,

collective agreements, works rules, individual contracts of employment and

case law, the vast majority are formulated as a result of negotiations

between staff representatives (if not unions) and the employer.129

Consequently, with the decline of collective labor law and

unionization, came a decline in disciplinary law – both its employer-

employee and employee-employee dimensions - and the space it left behind

has not been filled. There are a number of reasons for this, which I have

discussed elsewhere,130 but the main reason is that employers lack the

incentive to invest in a negotiated system of rules, since they can simply

assert their managerial authority, at will, when there is no union present.131

At the same time, codes of ethics, while more prevalent and often

addressing relations between employees, are also unable to act as internal

governance mechanisms, since they typically embody unenforceable norms

of behavior.132 Furthermore, they are generally formulated by the employer,

disciplinary law.” International Labour Review. 1986, Vol. 125 Issue 3, p261, p262.129 Collective agreements are the most common source of disciplinary law, see M.-E

Banderet, “Discipline at the workplace: A comparative study of law and practice. 2: Procedure.” International Labour Review. 1986, Vol. 125 Issue 4, p383. After that comes arbitral case law, which is also produced under the umbrella of collective agreements and works rules which are also typically negotiated with staff representatives. Legislation is rare but is also usually the product of agreement between the social parties. Disciplinary rules arising from individual contracts of employment are rare since disciplinary law is by nature collective and therefore needs to be arranged at the enterprise, occupation or even State level.

130 “L’Enfer", supra note 9.131 Even if they do decide to act, disciplinary sanctions such as fines are limited by

law, given their potential to be misused and harm workers unfairly.132 For more on professional codes of ethics, see for example Nancy J. Moore, What

Needs Fixing? Lawyer Ethics Code Drafting in the Twenty-first Century, 30 HOFSTRA L. REV. 923 (2003) (hereinafter: Moore, Ethics Code Drafting); Nancy J. Moore, Professionalism Reconsidered, 12 LAW & SOC. INQUIRY 773, 784 (1987); Nancy J. Moore, Professionalism: Rekindled, Reconsidered or Reformulated?, 19 CAP. U. L. REV. 1121

11-May-17] REGULATING RELATIONS 55for her needs133 and so the extent to which they genuinely engage with

issues arising between employees, is limited.134 Finally, even within the

limited purview of codes of ethics, there is a type of consensus they are

generally ignored.135

Consequently, the Worker-Community and the special duties it

entails can provide a normative justification and substantive foundation for

the establishment of an alternative dispute resolution mechanism between

employees, in the form of a default statutory disciplinary law regime,

independent of collective agreements. The framework suggested here would

require the passing of a law with a default set of substantive disciplinary

regulations, sanctions agreed in advance between the workers and a

universal compulsory procedure136, enforced by the Worker-Community or

a third party service-provider. The ADR aspects of this proposal could be

manifested by a requirement that conflicts are treated first through internal

workplace mechanisms of arbitration or conciliation or mediation.

Through its default aspect, the proposal overcomes the barriers

(1990).133 Arguing that codes of conduct function as the “club goods” of a prestigious group

of corporations united by the fact that they are able to display their commitment to corporate social responsibility, placing appearance above the actual enforcement of norms, see Aseem Prakash & Matthew Potoski, The Voluntary Environmentalists: Green Clubs, ISO 14001 and Voluntary Environmental Regulations (Cambridge University Press 2009) (regarding environmental codes).

134 See for example the Renault code of ethics, which addresses environmental norms, financial norms and so on: RENAULT, CODE OF GOOD CONDUCT, available at http://group.renault.com/wp-content/uploads/2014/07/renault_-_code_of_ethics_-_en.pdf.

135 PUB. ADMIN. REV. 345–353 (1990) (providing empirical evidence from the public sector according to which codes of ethics are seldom used in decision-making, are not a subject of discussion and are not always taken seriously by top management). See also discussion at HANDBOOK OF ADMINISTRATIVE ETHICS 338‒339 (Terry L. Cooper ed., 2d ed. Taylor & Francis 2001) describing codes as “unrealistic, unimpressive and widely unknown or ignored guides to wishful thinking” or, alternatively, as "of little consequence to public servants in their work".

136The importance of having a universal compulsory procedure comes to substitute the protective aspect of union involvement, which is not possible in a non-unionized setting. Compulsory legal protections, such as guarantees of due process, a right to appeal decisions and so on, would at least in part prevent misuse of disciplinary law.

56 REGULATING RELATIONS [11-May-17many employers experience in formulating their own rules, as described

above, guaranteeing a minimum level of regulation of relations but at the

same time allowing an employer who is dissatisfied with certain rules, to

formulate her own. Furthermore, it allows for the regulation of types of

behavior which have been shown to be problematic and which are not

addressed by legislation. One obvious example is bullying behavior, other

examples could include dress codes or rules about departing employees

training new replacement workers.

More importantly, they enable regulation that reflects issues about

which some employees may feel strongly. Given the cultural heterogeneity

of the modern workplace, there is a good chance that not all employees will

share the same sense of duty about the same issues.137 Laying out express

behavioral norms in the form of a disciplinary code, has the potential to

improve employees’ experiences at the workplace by standardizing

expectations from co-workers on issues important to employees.

D. Regulation of Employee-Employee Relations

There are numerous additional ways in which the Worker-

Community model has the potential to affect the regulation of relations in

the workplace. Generally, this new understanding of employee-employee

relations can be a useful interpretative tool for existing rules, both in the

form of laws and codes of ethics, as well as an inspiration for new rules that

should be written. As mentioned above, codes of ethics typically embody

unenforceable norms of behavior but these can have a significant

educational impact, which is why interpreting codes of ethics in a manner

137 See Sharon Rabin Margalioth “The Significance of Worker Attitudes: Individualism as a Cause for Labor’s Decline”, Hofstra Labor & Employment L.J., Vol. 16, pp: 133-165, 1998, at 155 (arguing that homogeneity and shared values increase group consciousness).

11-May-17] REGULATING RELATIONS 57that reflects the Worker-Community paradigm, has the potential to

positively impact the way workplace relations play out.

As for formal codes of law, one approach could be to amend current

labor and employment legislation, so that the goals of existing laws are also

seen as including the guaranteeing of fair and respectful relations between

employees. This could tip the balance in various contentious issues, such as

the validity of anti-fraternization policies that prohibit workplace

romances.138 If employees are viewed as having a legal obligation towards

one’s co-workers, this may be hard to reconcile with blanket prohibitions on

romantic relationships, which have been seen to affect the career prospects

of women more often than those of men.139 This would be especially

pertinent when there is no evidence of harm to the employer’s goals from

the relationship between the co-workers.140

As mentioned above, the Worker-Community model can also be

seen as the foundation for a type of internal governance mechanism that in

the workplace, would be most applicable to the rules according to which

unions function, internally. There is much at stake in these scenarios, be it

competition between groups of workers vying for power in the union,

disciplinary measures against members and the way in which collective

representation in decision-making functions.

An additional effect of the Worker-Community perspective might be

felt in the field of legal procedure. The jurisdiction of labor courts or

tribunals is often limited to employer-employee relations, or allows cases

138 See generally Ian J. Silverbrand, Workplace Romance and the Economic Duress of Love Contract Policies, 54 VILL. L. REV. 155 (2009) (examining employer responses to workplace romance).

139 Timothy D. Chandler et al., Spouses Need Not Apply: The Legality of Antinepotism and No-Spouse Rules, 39 SAN DIEGO L. REV. 31, 45 (2002) (arguing that these apparently neutral policies may adversely impact the employment opportunities of women making them discriminatory under Title VII of the Civil Rights Act).

140 Sharon Rabin Margalioth, Love at Work, 13 DUKE J. GENDER L. & POL’Y 237–253 (2006).

58 REGULATING RELATIONS [11-May-17between employees regarding sexual harassment or libel. Another potential

application would be to allow employees to sue one another for a broader

range of claims, in recognition of duties arising from the Worker-

Community model, within the labor court system. The most obvious

example would be claims arising from privacy laws between co-workers.

Another example would be claims according to the anti-bullying law.

The advantages to hearing cases between employees in the labor

courts, as opposed to the civil courts, are similar to those brought in

justification of their unique jurisdiction over employer-employee

conflicts.141 The idea is that they have developed an expertise and

understanding of the norms in the workplace which other courts do not

have. This is in part facilitated by the special makeup of the judicial

panel,142 which often includes representatives of the public in the form of a

lay member from the union sector and a lay member from the employer

sector.

The advantages of labor court jurisdiction for cases between

employees lies in the fact that it would allow workers access to justice and

self-representation by implementing simple and easy-to-understand

procedure and evidence rules, as well as more expedient and efficient courts

than the over-stretched civil courts. The filing fees and costs are lower,

evidence and procedure rules are relatively understandable to non-lawyers

and not obligatory. In addition, the presence of union and management lay

members assure litigants that their claims are understood. Given the fact

that proceedings involving low sums of money are common, an easily 141 See for example George Cahill, Do We Need Labor Courts?, 31 MARGUETTE L.

REV. 1 (1947). More recently, see Stephen Adler, The Role of Judges in the Implementation of Social Policy, 18 INT’L J. COMP. LAB. L. & INDUS. REL. 341–377 (2002).

142 Guy Davidov & Reut Begas-Shemer, Lay Judges in Labour Courts: Their Role and Contribution in Theory and in Practice, in LIBER AMICORUM ELISHEVA BARAK-OSSOSKIN 185–206 (2012) [Hebrew], available at http://isllss.huji.ac.il/PublicRepresentatives.pdf.

11-May-17] REGULATING RELATIONS 59accessible, simple and cheap procedure is helpful.

The Labor Courts are generally credited with calming parties at

conflict with one another so that they can negotiate an agreement that is

agreeable to all involved. They place special emphasis on peaceful

resolution of conflicts and have established a broad dispute settlement

program, including pre-trial hearings by Court Registrars and mediation by

lay members and private mediators. This is especially important given the

assumption that the parties involved have to continue to work together

whatever way the conflict is resolved.

E. Regulation of Relations in other Communities

So far, this article has focused on laying the foundations of a new

way of thinking about employee-employee relations as well as the ethical

and legal implications of this approach. But the argument for a community-

based approach may have implications for other fields as well.

The community-centered approach may have practical applications

for internal rules of governance in fora outside the workplace, based on the

recognition of their communal nature. Just as the Worker-Community does

for employee-employee relations in the workplace, the recognition of the

existence of a community and the special ethical duties ensuing from this

recognition, could affect the way codes of conduct are construed, and even

justify the introduction of such codes, where they are lacking.

Schools for example are known to be plagued by problems with

bullying behavior between pupils,143 which has been tackled from different

143 For a review of the phenomenon of bullying in schools from an international comparative perspective, see THE NATURE OF SCHOOL BULLYING: A CROSS-NATIONAL PERSPECTIVE (P.K. Smith, Y. Morita, J. Junger-Tas, D. Olweus, R. Catalano and P. Slee eds., Routledge, 1999). Calling for a unified approach to research into bullying in schools, see Robert Thornberg, The Social Dynamics of School Bullying: The Necessary Dialogue between the Blind Men around the Elephant and the Possible Meeting Point at the Social-Ecological Square, 3 (1) CONFERO 1 (2015).

60 REGULATING RELATIONS [11-May-17directions. At the same time, there is a growing awareness of the need to

regulate relations within schools as can be seen by the introduction of pupil

bills of rights. Further research is required into relations between pupils,

however, the elements described above as constituting the Worker-

Community seem relevant to pupil-pupil relations as well. Shared space,

common ties and social interaction are all part of relations between pupils.

Special obligations between pupils may serve as an ethical basis for a

unique system of internal governance functioning between pupils and for

their benefit. This could cover anything from theft and bullying to help with

homework, rules about lending and returning and privacy with regard to

medical or family information.

Similarly, the relations between students at universities may also

benefit from a community-oriented analysis, guided by the ethics of special

obligations. Assuming the main elements of the Worker-Community

approach are also applicable, the idea of special obligations may provide the

justification for an internal code regarding unique issues between students

for example roommates, interpersonal relations, cooperation on course

assignments and so on.

Another relationship worth analyzing under from the perspective of

the Worker-Community model could be that between athletes, for example

on national athletic teams. The Games of the XXXI Olympiad, or the 2016

Olympics, taking place in Rio de Janeiro, have highlighted incredible acts

of sportsmanship between athletes, for example when American runner

Abbey D’Agostino stopped to help a runner against whom she was

competing, who slipped and fell.144 While this particular example refers to

144 American runner Abbey D'Agostino stops to help fallen athlete in ultimate demonstration of Olympic spirit, http://www.telegraph.co.uk/olympics/2016/08/16/american-runner-abbey-dagostino-stops-to-help-fallen-athlete-in/?WTmcid=tmgoff_soc_spf_fb&WT.mc_id=sf33523418 [last visited on 20.8.16].

11-May-17] REGULATING RELATIONS 61relations between competitors from different teams, national athletes from

the same team may find themselves competing against one another.

Furthermore, the behavior of athletes can significantly impact other

team members, be it when anti-doping rules are violated, or if they are sent

home for inappropriate behavior in the hosting country, or if they simply

party too hard.145 Moreover, relations between team members are likely to

be plagued by problematic types of behavior similar to those described

between co-workers as well, such as sexual harassment, bullying and so on.

The relations between athletes are rarely public because of the high

stakes involved and the imperative that they unite for the ultimate aim of

representing their nation and winning. However, this does not mean that

athlete-athlete relations should be ignored. On the contrary, their regulation

may well advance the goal of improving their achievements. Further

research is necessary in order to map out the special characteristics of these

relations, though they seem to, a priori, fit the Worker-Community

parameters of shared space, common ties and social interaction, laying the

foundations for the existence of special obligations between team members.

Since there seems to be a need for a form of internal governance mechanism

between athletes, independent of the team manager and the discipline

dictated from above, this could present yet another application of the

insights provided by the Worker-Community model.

Another type of relationship that would benefit from the insights of

the Worker-Community model, is that between people sharing a living

space, such as homeowners in a condominium or inmates in a prison. There

are various forms of shared living space, each characterized by different

145 Rio Olympics 2016: Team GB athletes told to curb their celebrations in athletes' village as team-mates look to increase medal tally, http://www.telegraph.co.uk/olympics/2016/08/15/rio-olympics-2016-team-gb-athletes-told-to-curb-their-celebratio/ [last visited on 20.8.16].

62 REGULATING RELATIONS [11-May-17degrees of communal life146, which have given rise to different types of

internal governance regimes147. It would be interesting to analyze these

mechanisms in light of the Worker-Community model and the ethical

perspective of it represents. By examining communal relations in property

from the new perspective of special duties, new issues may emerge which

may potentially have been overlooked to date.

As for prison inmates, while these are highly regulated relations

from the point of view of the state, this is only to the extent that it affects

the state’s interests. This includes maintaining order, guaranteeing safety of

inmates and of course, preventing escape. However, it is conceivable that

certain aspects of relations between inmates may not fall under any of the

abovementioned categories and therefore not be of concern for the

disciplinary system currently regulating these relations.

There are indications that the characteristics of the Worker-

Community - shared space, common ties and social interaction – are also

present between inmates, so that they can also be understood as a type of

community, in which the relations between the members are governed by

special duties. Here, more than the other types of communities that have so

far been discussed, the value of an ethical, as opposed to a legal code, could

be significant. The effects of such a code could positively impact immediate

state interests, however, it could also advance long-term goals, such as

rehabilitation.

146 See for example Shai Stern “Taking, Community, and Value: Reforming Takings Law to Fairly Compensate Common Interest Communities” 23 J. L. & Pol’y (2014) arguing that individuals who live in highly cooperative common interest communities should, in certain circumstances, be entitled additional compensation when their property is taken through eminent domain.

147 See, e.g., WAYNE S. HYATT, CONDOMINIUM AND HOMEOWNERS ASSOCIATION PRACTICE: COMMUNITY ASSOCIATION LAW (2d ed. 1988); Armand Arabian, Condos, Cats, and CC&Rs: Invasion of the Castle Common, 23 PEPP. L. REV. 1 (1995); Susan F. French, Making Common Interest Communities Work: The Next Step, 37 URB. LAW. 359 (2005); Norman Geis, Beyond the Condominium: The Uniform Common-Interest Ownership Act, 17 REAL PROP PROB. & TR. J. 757 (1982).

11-May-17] REGULATING RELATIONS 63This section has pointed to some of the broader implications of the

Worker-Community approach and shown that there are other communities

for whom the Worker-Community approach to relations may have ethical as

well as regulatory consequences. Conducting the type of methodological

analysis that led to the Worker-Community approach, in fora other than the

workplace, has the potential to bring to the surface aspects of relations

between the members of these communities that are otherwise unresolved.

The understanding that communal relations are governed by ethical

obligations, special duties, can contribute to the positive evolution of these

relations, for example, through the introduction of internal rules of

governance.

V. OBJECTIONS ADDRESSED

To recap, this article has so far made an argument based on

sociological literature, especially the work of Hillery and Gusfield, that the

relations between employees in the workplace can be understood as a

community. In addition, it has identified the main characteristics of the

Worker-Community, including some that set it apart from other types of

communities. Furthermore, insights from Dworkin and Scheffler have

revealed that the Worker-Community is imbued with mutual ethical duties

regarding desirable behavior between employees and some potential legal

implications of the Worker-Community model have been discussed.

The final part of this paper addresses three potential

counterarguments to the new paradigm proposed in this article: (1) the

voluntarist-contractual objection, which objects to duties placed on

individuals if they have not expressly agreed to them; (2) the distributive

objection, which argues that the goods arising from special responsibilities

create inequality since they are limited to those who work; and (3) the

64 REGULATING RELATIONS [11-May-17autonomy critique, which finds duties and obligations arising from the

workplace to be an unreasonable limitation on the autonomy of the

individual. These objections may explain why, despite the normative appeal

of the Worker-Community approach, employee-employee relations as such

have yet to be regulated. However, as I explain, none of these arguments

justifies either of the three alternative approaches outlined above, that is the

Individualistic, Employer-Centered or Collectivistic Approaches.

A. The Voluntarist-Contractual Objection

This type of objection could be raised by an employee who is to be

bound by a special duty placed on her as a result of the Worker-Community

model. According to this critique, mere membership in this community

cannot by itself give rise to any duties, if she has not voluntarily incurred

these responsibilities.148 Associative duties could only be legitimate if they

can be seen as a type of contractual duty otherwise they constitute an

unreasonable constraint on the employee in question. As such, the

voluntarist is acutely aware of the potentially burdensome costs social

involvement incurs and therefore argues that agents should not be required

to bear them against their wills. Essentially, this objection emerges from the

ideal of freedom and autonomy that is rooted in the liberal tradition.149

The simplest response to this objection points to the fact that the

Worker-Community model was described above as applying in all 148 Indeed, Dworkin’s account of associative obligations does not make choice the

basis of these obligations, which has led some to describe him as being “genuinely communitarian.” See for example Eerik Lagerspetz, Ronald Dworkin on Communities and Obligations: A Critical Comment, 12 RATIO JURIS 108–115 (1999).

149 Explaining the importance of choice to the Liberal tradition, John Stewart Mill likens those who do not choose their own life plan to apes: “The human faculties of perception, judgement, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice […] He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation.” See John Stewart Mill, On Liberty, in THREE ESSAYS 72–73 (Oxford University Press 1975).

11-May-17] REGULATING RELATIONS 65workplaces. This undermines the contractual objection, since the special

obligations incurred by becoming an employee should be considered not as

a unique constraint, but rather one that is part and parcel of the world of

work. If there is a coercive element to employment, it is not with respect to

the actual place of work but rather with the necessity to work in order to

have an income, to guarantee a reasonable level of sustenance. In other

words, there is no additional burden arising from the Worker-Community

approach because there is no workplace without the duties.

One could counter this response and point to the fact that insofar as

existing employee duties in the workplace are with respect to employers,

these are essentially contractual duties, voluntarily undertaken and therefore

the introduction of noncontractual duties between employees is an

unwarranted limit to liberty. However, that would ignore duties imposed by

regulation in the workplace with respect to society, for example in the field

of whistleblowing. While there is a certain price to be paid when regulation

is imposed, in terms of autonomy, there is also a price tag on lack of

regulation, including where autonomy is concerned as well. Given the high

costs of exit, the limitation on autonomy presented by a world without the

Worker-Community approach, may be greater than the regulation-based

limitations arising from the Worker-Community.150

Alternatively, one could counter that the model should distinguish

between different types of workplaces. There are nuances between

workplaces, the argument goes, so you cannot compare a factory floor to an

office to the home office of the freelancer.151 While this may be the case on

some levels, as the discussion describing evidence of community in the

workplace showed, this does not affect the fundamental determination that

150 The autonomy-based objection is elaborated below, under Part V section C. 151 See JAMES ET AL, supra note 101, suggesting that a taxonomy of community

relations should be used in order to typify communities based on such parameters.

66 REGULATING RELATIONS [11-May-17there are moral duties between employees. There may be room to allow a

variance between workplaces in terms of the legally enforceable rules based

on the special obligations, but this does not undermine the idea of special

obligations applying to all workers as such.

Alternately, one can point to one’s voluntary acceptance of the

benefits of participation in the workplace and therefore in a Worker-

Community model, as indicating agreement to the acceptance of the duties

arising from the Worker-Community.152

B. The Distributive Objection

This type of objection would be raised by people outside the

Worker-Community, against the special benefits members of the Worker-

Community enjoy and which are withheld from non-members. These non-

members could be the unemployed or even members of different worker-

communities, for example those belonging to less profitable worker-

communities. It is essentially an argument against inegalitarian distribution

of duties but also of benefits resulting from the duties and would challenge

even the voluntarist approach to the Worker-Community model, since it 152 For more on the voluntary acceptance of benefits as a source of special

responsibilities, see HART, supra note 77 and JOHN RAWLS, A THEORY OF JUSTICE ‒ PART I (Belknap Press rev. ed. 1999), as well as Samuel Scheffler, Friends, Nations and Strangers, in BOUNDARIES AND ALLEGIANCES – PROBLEMS OF JUSTICE AND RESPONSIBILITY IN LIBERAL THOUGHT, at 54. If someone were to question the voluntary basis of the Worker-Community model as described above, it might be propitious to turn to communitarian literature, see for example Lagerspetz’s categorisation of Dworkin on a similar point, supra note 148.

An alternative approach is that taken by ROBERT E. GOODIN, PROTECTING THE VULNERABLE 34 (University of Chicago Press, 1985), where he presents a comprehensive theory of responsibility based on the concept of vulnerability, which overcomes, the problem of consent: “It is dependency and vulnerability rather than voluntary acts of will which give rise to […] our most fundamental moral duties.” His theory purports to explain the existence of special responsibility and rejects the view that all special obligations arise from consent. However, since his aim is to extend our moral duties to other contexts outside communities, I find his approach to be one of monistic assimilationism, which essentially undermines the very existence of special responsibilities arising from special relationships. Scheffler makes a similar remark (See SCHEFFLER, supra note 105, at 56).

11-May-17] REGULATING RELATIONS 67makes no difference whether the agent was compelled to take on these

duties and enjoy the concomitant benefits, or chose to do so. One such duty

might include for example the duty to help out one’s co-workers financially,

when they are hit by particular difficulties. The resulting benefit, unique to

members of a Worker-Community, is the existence of an additional safety

net that is not available to the unemployed for example.

An aspect of this duty and its benefits is examined in the Belgian-

French-Italian film “Two Days, One Night”. When a worker is forced to

take time off work for medical reasons, the employer discovers that he can

do without her and so offers a €1,000 bonus to her colleagues, if they agree

to make her redundant. After an old friend convinces her to fight for her

job, she decides to visit all her co-workers over the weekend, in an attempt

to persuade them to reject the monetary bonus in the vote planned for

Monday morning. The various tensions trying the moral connection

between the workers are played out dramatically, but what is illustrated

clearly, is the tremendous stakes in the employee-employee relationship.

Put differently, this objection arises from a particular awareness of

the rewards of social life and of the great potential interpersonal relations

possess to enrich human life. As a result, assisting one’s co-workers and

contributing to the flourishing of one’s workplace relations, especially in

the context of a world in which there most probably are people who are

needier, is considered an unfair advantage. Essentially, this objection results

from the application of one version of the principle of equality, according to

which people are of equal value and importance, irrespective of how close

they are to us.

The response to this claim is complex. On the most immediate level,

the fact that there may be other duties in the world, for example, to those

who need you more, does not mean that the duties arising from the Worker-

68 REGULATING RELATIONS [11-May-17Community model do not exist or are unjustified. It merely points to an

additional question, requiring further research, regarding the way in which

conflicting duties ought to be prioritized.153 The Worker-Community model

merely elucidates existing duties and brings to the forefront an aspect of

work life which has so far been ignored.

At the same time, it is worth noting that a type of “tug of war” is

anyway at the heart of moral life, even without recognizing the duties

arising from the Worker-Community model. The common sense morality at

the heart of this concept should be emphasized: it is hard to ignore the

moral pull arising from claims not born of need or personal choice for that

matter, but rather of membership in particular groups or the existence of

particular types of relationships, such as families and histories and

traditions. However, the conflicts these duties elicit with broader issues of

world poverty or global justice, will not be resolved by ignoring the duties

arising from the Worker-Community. Modern moral life is comprised of

tensions pulling us in opposite directions and what is required is a

sophisticated concept of responsibility, able to encompass all the various

nuances of moral life.

C. The Autonomy Objection

As emerged from the text above regarding the Voluntarist-

Contractual critique, one formulation of the Liberal tradition places

autonomy at the top of the values it comes to protect. This type of liberalism

was originally suggested by Locke, and focuses on the danger to liberty

coming from the power of the state.154 Consequently, it advocates minimal

153 One facet of this issue was addressed in supra note 89 and note 91, regarding literature on partiality.

154 For more, see JEAN HAMPTON, POLITICAL PHILOSOPHY 171 (Westview Press, 1997). A more recent supporter of this approach can be seen in Joel Feinberg, especially in his idea of the Harm Principle (JOEL FEINBERG, HARM TO OTHERS: THE MORAL LIMITS OF

11-May-17] REGULATING RELATIONS 69government and tends to endorse the economic doctrine of laissez-faire. As

a result, the idea that a Worker-Community could dictate how people

behave towards one another and place duties and obligations in the

workplace, would be viewed by such Lockeans as an unreasonable

limitation on the autonomy of the individual. The very idea that such

questions of ethics could be the subject of national laws would be

considered unduly coercive. An alternative articulation of this critique

posits that relations between employees represent an intimate sphere into

which legislation should not venture.155

However, there is an alternative articulation of the liberal

commitment to autonomy, which refers to autonomy as the commitment

that people should, to some degree be the authors of their own lives.156 The

Worker-Community, including the incumbent mutual employee duties

arising from it157, can play a central role in the realization of the self-

authorship version of autonomy. This is because the Worker-Community

can be viewed as a structure that enables people to enlist others to advance

their own projects, leading to an expansion of the range of meaningful

choices that people can make to change their own lives.158 Employee-

employee relations can be seen as a locus of personal realization, growth

and expression, as well as a means to achieving economic independence.

An additional counter-argument posits that workplace relations have

value in and of themselves and are also frequently central to individuals’

identities, as well as to many of the things that individuals hope to achieve

THE CRIMINAL LAW 11 (Oxford University Press 1984).155 Margalioth, Love, supra note 140; Chandler, supra note 139, at 45; Silverbrand,

Supra note 138.156 JOSEPH RAZ, THE MORALITY OF FREEDOM 369–373, 417 (Oxford University Press

1986).157 This is in line with Dagan and Dorfman’s comment that the literature “Fails to take

seriously the horizontal, as opposed to vertical, dimension of the relationships that social institutions can establish or facilitate.” See Dagan & Dorfman, supra note 97.

158 Id. at 20 addressing a similar argument for contract law.

70 REGULATING RELATIONS [11-May-17for themselves. As Klare states,

“in significant measure we are the ensemble of our

social relations and shared meanings, and … our

individuality is in many ways defined in relationship to

our shared meanings and symbols. Human fulfillment is

impossible outside of and apart from communal

life…”159

The workplace can function as a locus of group life and public

discourse, a collective experience for employees in the emancipatory project

of becoming the authors of their own lives. Consequently, maintaining the

health of these relations, through the special obligations that come with the

Worker-Community, can be seen as being conducive to promoting

autonomy. In other words, since the “rules” of the Worker-Community,

facilitate these relations, they can be viewed as promoting autonomy in the

self-authorship sense of the idea.160

An additional dimension of the autonomy-promoting aspect of the

Worker-Community model emerges from Klare’s approach, that is, the

recognition of its value in promoting self-governance. As described above,

one of the practical implications of the Worker-Community model is that it

provides a normative justification for a default disciplinary regime by

laying out its moral foundations. Self-governance is a central aspect of

autonomy, both individual and in a communal setting. As Klare stated:

“freedom is in part the development of the capacity

for communal self-governance across the entire

existential space of life. The potential and need to

159 Karl E. Klare, The Public/Private Distinction in Labor Law, 130 U. PA. L. REV. 1358, (1982), at 1419–1421.

160 Arguing that Raz’s idea of autonomy, alongside dignity, constitutes the foundational justification for LEL in general and unfair dismissal legislation in particular, see HUGH COLLINS, JUSTICE IN DISMISSAL 18–21, 28 (Clarendon Press 1993).

11-May-17] REGULATING RELATIONS 71participate in organizing the social world and guiding its

future is a generic human capacity. The nature of our

species embraces the aspiration toward collective self-

governance, and our attainment of it is a measure of our

freedom.”161

The Worker-Community model is distinct from the idea of unionization,

yet in its emphasis on self-governance between employees, achieves a

similar goal, presenting a promising site for the self-authorship idea of

autonomy.

Finally, this is the place to address the second articulation of the

autonomy objection mentioned above, which views employee-employee

relations as a private sphere into which the law should not venture lest it

limits the individual’s autonomy. According to this argument, it is the

communal aspect of employee-employee relations that justifies, more than

anything, legal restraint out of respect for the autonomy of the community

and its organic regulation through non-legal social norms.

The answer to this objection recognizes that the workplace is not a

purely private sphere, unlike the family, which is in itself, also partially

regulated. Furthermore, unlike similar communal groups, such as places of

worship or clubs, the state has an economic interest in regulating the

workplace, as evinced by the intense regulation to which it is already

subjected.

The answer further points to literature that questions the value of the

private-public paradigm in general.162 According to the feminist version of

161 Klare, supra note 159, at 1419.162 For more, see Symposium on the Public/Private Distinction, 130 U. PA. L. REV.

1289 (1982). See also PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1965) (discussing the distinction between private and public moralities). See also Ruth Gavison, Feminism and the Public/Private Distinction, 45 STAN. L. REV. 1, 16, 20, 23-25, 27-28 (1992). Gerald Turkel, The Public/Private Distinction Approaches to the Critique of Legal Ideology, 22 L. & SOC’Y REV. 801 (1988).

72 REGULATING RELATIONS [11-May-17this argument, the public-private distinction in general, and in this context

in particular, can be seen as keeping the private beyond legal redress,163 thus

perpetuating forms of routine behavior which can be destructive to the

individual. Rejecting this distinction allows recognition of the fact that

supposedly private interactions between individuals in the workplace, are in

fact public, making them a legitimate subject for legislation.

This also means that even though some groups may have their own

non-legal social norms, there is a public interest in ensuring that all groups

have rules and that these rules function. As mentioned before, part of the

autonomy objection posits that there is no need to enshrine social norms in

law if they are already clear to all. However, the costs of uncovering which

norms are shared by all and which are not, if this is even possible given the

fluid nature of this subject matter, seem high. Furthermore, the value of

public regulation of behavior between employees is also evident in the

enforcement options that it creates. Listing sanctions for violations

alongside examples of how employees are expected to behave, may further

improve employee-employee relations by reinforcing the stability and

certainty experienced by employees in the workplace and freeing them to

fulfill themselves at work.

In this context, it should be pointed out that much of private law is

actually about the regulation of interpersonal relations.164 That in itself

ought to be enough to justify this legal and moral foray into interpersonal

relations in the workplace, since LEL also belongs firmly in the category of

private law.

163 Cf CATHERINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSED ON LIFE AND LAW 102 (1987) (arguing that the public-private division “keeps the private beyond public redress and depoliticizes women’s subjection within it.”).

164 Hanoch Dagan, Pluralism and Perfectionism in Private Law, 112 COLUM. L. REV. 1410 (2012). See also Klare’s critique of liberalist distinction which lead to the idea that autonomy and community are opposed in Klare, supra note 159.

11-May-17] REGULATING RELATIONS 73CONCLUSION

This article presented a new way of looking at employee-employee

relations, one that can both explain the more puzzling aspects of these

relations, as well as establish an ethical and legal standard for behavior. The

Worker-Community brings the special characteristics of relations between

employees to the forefront, so that their ethical and regulatory implications

can be addressed. It further presents a novel way of looking at relations in

other social settings, providing a theoretical basis that facilitates the re-

evaluation of their current regulation. The approach embodied by the

Worker-Community enables us to actively determine just how we want our

community relations to look.

As discussed above, when workers succumb to the pressures of the

sharing economy and underbid one another in order to get a “gig” or a job,

they are not only inadvertently limiting their own earning power but that of

numerous other workers. This harm has far-reaching consequences both for

individual workers and the economy and current legal paradigms have yet

to find a way to manage this phenomenon and its consequences.

As this article has shown, the Worker-Community provides a basis

for the establishment of duties between workers, both ethical and legal,

which could limit this behavior, even before the question of their status as

employees or contractors, has been resolved. Thus, the Worker-Community

enables some of the negative effects of the gig economy to be controlled,

where traditional legal tools have so far failed.