
doi: 10.2139/ssrn.6989098
In recent years, a novel but undervalued governance instrument has emerged that threatens the very foundations of American labor law: managerial power over the authoritative account of a firm's technological future. Extant labor doctrine takes a neutral position on the private ordering between employers and workers. Management's capacity to convince workers that their jobs depend on keeping labor costs low is virtually unchecked. Labor law lacks a mechanism and vocabulary to redistribute bargaining power in an era of future automation, leaving workers relatively powerless. <br><br>This Article examines the legal implications of future-automation rhetoric. It advances a theoretical framework it calls epistemic power, which refers to the capacity of employers to control the authoritative content of facts material to workers’ decisions, under conditions in which workers have no independent mechanism to verify those facts. Applying this theoretical framework to labor law exposes the normative stakes of a governance regime that uses future automation to control workers, particularly those without union representation. This account reveals that the National Labor Relations Board has the statutory authority to regulate epistemic power and redistribute power back to workers. And yet, current labor doctrine permits employers to link future automation to workers’ protected right to organize during the election period without requiring the employer to substantiate their claims until after the votes have been cast. Future automation, including burgeoning generative artificial intelligence (AI), is distinctly perceived as inevitable; its rhetoric is thus particularly coercive. This Article proposes a doctrinal framework that calls for the equal distribution of bargaining power between labor and capital by requiring employers to substantiate their future automation statements when they are made, during the election window.
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