Jennifer S. Fan, Employees as Regulators: The New Private Ordering in High Technology Companies, 2019 Utah L. Rev. 973 (2019), https://digitalcommons.law.uw.edu/faculty-articles/583
Utah Law Review
There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight of public companies. Now, however, white-collar employees at high technology companies are speaking out in protest about their respective employers’ actions and changing private ordering as we know it. In essence, employees are holding companies accountable for the choices they make, whether it is what area to work (or not work) in or eliminating a practice that has systemic implications, such as mandatory arbitration provisions for sexual misconduct cases. This Article builds upon my prior work on the role of corporations and social movements, analyzing how employees in high technology companies have redefined the contours of private ordering and, in the process, have also reimagined what collective action looks like. Because these workers are in high demand and short supply, they are able to affect private ordering in a way that we have not seen before. As a result, they have the potential to be an important check on the high technology sector.