Can China Resolve its Labor Question by Improving Labor Standards?

The Regulatory Response to Labor Unrest
Cynthia Estlund, Catherine A. Rein Professor of Law, New York University School of Law
| CSCC conference room, Fisher-Bennett 345

China's initial and preferred strategy for abating labor unrest was to legislate labor standards and improve access to judicial and arbitral enforcement of individual rights claims under the law.  China's creation of a unified regulatory regime for labor conditions, first with the Labor Law of 1994 and then with the Labor Contract Law (LCL) of 2008, marked a convergence both within China between its "socialist" and "market" economies, and between China and the world's advanced industrial societies.  The laws have had some success in improving labor standards, and in drawing tens of thousands of labor disputes into legal channels of dispute resolution; yet they have failed to reduce overall levels of labor protest.  That is partly because of the large gap between the law on the books and the law on the ground.

China's large enforcement gap partly reflects weaknesses in its regulatory institutions.  But those weaknesses can be better understood in light of regulatory experience across the world.  Institutions of public enforcement and adjudication cannot do the whole job of enforcing labor standards across a large and diverse economy.  They work only by catalyzing and tapping into private regulatory inputs:  compliance structures inside large regulated organizations, and representative institutions and actors that enable workers to claim their rights both internally and externally.   Low-wage workers (in the U.S. and elsewhere) are especially likely to face widespread legal violations unless they have access to independent representation from civil society -- unions, lawyers, or other worker advocates.  But in China, those civil society organizations and actors are tightly restricted because of official worries about workers organizing outside official channels.  This chapter offers a glimpse at "civil society with Chinese characteristics, and illuminates the dilemma that China faces in its effort to regulate its way out of collective labor unrest:  The very institutions that might help to improve social stability by narrowing the enforcement gap and addressing rights disputes are seen as a potential vehicle for independent collective labor activity, and thus a threat to political stability.

Cynthia Estlund is the Catherine A. Rein Professor of Law at the New York University School of Law. She is a leading scholar of labor and employment law, and has written extensively on workplace governance and democracy. Her recent book, Regoverning the Workplace: From Self-Regulation to Co-Regulation (Yale University Press 2010), chronicles the current crisis of workplace governance brought about by the decline of collective bargaining and the shortcomings of both regulation and litigation, and charts a potential path out of that crisis. Her first book, Working Together: How Workplace Bonds Strengthen a Diverse Democracy (Oxford University Press 2003), argues that the workplace is a site of both comparatively successful integration and intense cooperation and sociability, and explores the implications for democratic theory and for labor and employment law. Other writings focus on workplace transparency, transnational labor regulation, freedom of speech and procedural fairness at work; and diversity, integration, and affirmative action. Her current research focuses on comparative perspectives on fundamental labor rights, and on China's legal and institutional response to labor unrest. In addition to courses in labor and employment law, Estlund teaches Property and Torts. Estlund graduated summa cum laude from Lawrence University, in Appleton, Wisconsin, in 1978. She then studied government programs for working parents in Sweden as a Thomas J. Watson Fellow. She earned her J.D. at the Yale Law School, where she was a Notes Editor for the Yale Law Journal, before clerking for Judge Patricia M. Wald on the U.S. Court of Appeals for the D.C. Circuit. She practiced law for several years, primarily with the labor law firm of Bredhoff & Kaiser, before joining the University of Texas School of Law faculty in 1989. She moved to the Columbia Law School faculty in 1999, where she was the Isidore and Seville Sulzbacher Professor of Law until her move to NYU in 2006.