By Leo E. Strine, Jr., Aneil Kovvali & Oluwatomi O. Williams. Full Text.
In view of the decline in gainsharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because they are a highly visible part of codetermination regimes that operate in several successful European economies, including Germany’s, in which workers have fared better.
But board level representation is just one part of the comprehensive codetermination regulatory strategy as it is practiced abroad. Without a coherent supporting framework that includes representation from the ground up, as is provided for by works councils in the European Union, representation from the top down is unlikely to be successful. This Article begins the work of fleshing out a principled and contextually fitting approach to reform that would allow for greater worker voice within the American corporate structure. After establishing the basics of how codetermination operates in the EU, the Article addresses the challenges facing even a minimal codetermination regime in the United States, tackling issues that reformers have not yet addressed. It then suggests a broader set of reforms that would increase worker voice and improve worker wellbeing now, while facilitating the eventual adoption of an effective and efficient system of board level representation for American workers.