Work, Free Will and Law

American law conceptualizes work as an exercise of free will, as a choice rather than as a right. Work law is dominated by a freedom of contract analysis in which occupations, jobs, union representation, working conditions, and exit are seen as freely chosen. New Deal-era regulatory regimes are undermined by the pervasive influence of the work-as-free-will framework. Vast spheres of worker activity that benefit employers yet occur within the coercive context of an employment regime in which jobs are a choice and a privilege rather than a right are left unregulated. Worker agency is reduced as workers conform their aspirations, expectations and demands for workplace justice to the confines of the job as defined by the employer. Few question the prevailing meaning of work as freedom because it is consonant with our cultural commitment to the American Dream—but we should.