A worker’s classification as either independent contractor or employee drives whether a worker is entitled to minimum wage, overtime, worker’s compensation, unemployment compensation, anti-discrimination protection, NLRA protections, and many other safety-net protections. During COVID-19, unemployment protections were extended to independent contractors, but this is not the norm and likely will not continue post-pandemic. Classifying certain workers, particularly those who work in the gig economy, is challenging, so states are looking for an answer – either through their own innovation or through that of other states. California’s answer was AB5. AB5’s goals were to correct misclassification issues for app-based drivers and other workers. A plethora of workers including court reporters, freelance writers and photographers, coaches, truckers, performing artists (mimes, magicians, comedians, etc.), and musicians rebuked AB5. AB5 is well known beyond California’s borders as it received, and continues to receive, nationwide attention because it reclassified app-based drivers (such as Uber, Lyft, DoorDash, etc.) as employees. This reclassification was ineffectual because Uber’s Prop 22 passed in November 2020 rendering app-based drivers exempt from California’s worker classification law. As Justice Brandeis said, one of the benefits of federalism is that states can act as “laboratories of democracy.” Experimental federalism can provide for collective learning across the states if they are all experimenting, but often states look to one another for innovative solutions so that they can free-ride instead of experiment. Some states that are looking for an improved worker classification law seek to learn from, and potentially free-ride on, California’s AB5 “experiment.” In considering whether to adopt AB5 or a similar statute, states should consider, at a minimum, three factors: relevancy of the law to their state, ease in obtaining information about the law, and the costs to adopt, implement, and enforce the law. This article assists policymakers and interest groups by providing a detailed look at the AB5 experiment including the impact of Uber’s Prop 22. This article applies the aforementioned three factors and determines that California’s law, while well-intentioned is likely not valuable for, or adoptable by, other states or the federal government partly because it contains 109 exemptions. Ultimately, this article concludes that to maximize the benefits of experimental federalism, a group of states, both homogenous and heterogenous to California, should experiment with more novel approaches to reach a more optimal solution to worker (mis)classification. Adopting California’s worker classification law will result in states following a sub-optimal law and delay states from reaching a better solution. Workers need protections, but California’s worker classification law does not sufficiently satisfy this need.
{"title":"The AB5 Experiment – Should States Adopt California’s Worker Classification Law?","authors":"Samantha J. Prince","doi":"10.2139/ssrn.3801265","DOIUrl":"https://doi.org/10.2139/ssrn.3801265","url":null,"abstract":"A worker’s classification as either independent contractor or employee drives whether a worker is entitled to minimum wage, overtime, worker’s compensation, unemployment compensation, anti-discrimination protection, NLRA protections, and many other safety-net protections. During COVID-19, unemployment protections were extended to independent contractors, but this is not the norm and likely will not continue post-pandemic. Classifying certain workers, particularly those who work in the gig economy, is challenging, so states are looking for an answer – either through their own innovation or through that of other states. California’s answer was AB5. \u0000 \u0000AB5’s goals were to correct misclassification issues for app-based drivers and other workers. A plethora of workers including court reporters, freelance writers and photographers, coaches, truckers, performing artists (mimes, magicians, comedians, etc.), and musicians rebuked AB5. AB5 is well known beyond California’s borders as it received, and continues to receive, nationwide attention because it reclassified app-based drivers (such as Uber, Lyft, DoorDash, etc.) as employees. This reclassification was ineffectual because Uber’s Prop 22 passed in November 2020 rendering app-based drivers exempt from California’s worker classification law. \u0000 \u0000As Justice Brandeis said, one of the benefits of federalism is that states can act as “laboratories of democracy.” Experimental federalism can provide for collective learning across the states if they are all experimenting, but often states look to one another for innovative solutions so that they can free-ride instead of experiment. Some states that are looking for an improved worker classification law seek to learn from, and potentially free-ride on, California’s AB5 “experiment.” \u0000 \u0000In considering whether to adopt AB5 or a similar statute, states should consider, at a minimum, three factors: relevancy of the law to their state, ease in obtaining information about the law, and the costs to adopt, implement, and enforce the law. This article assists policymakers and interest groups by providing a detailed look at the AB5 experiment including the impact of Uber’s Prop 22. This article applies the aforementioned three factors and determines that California’s law, while well-intentioned is likely not valuable for, or adoptable by, other states or the federal government partly because it contains 109 exemptions. \u0000 \u0000Ultimately, this article concludes that to maximize the benefits of experimental federalism, a group of states, both homogenous and heterogenous to California, should experiment with more novel approaches to reach a more optimal solution to worker (mis)classification. Adopting California’s worker classification law will result in states following a sub-optimal law and delay states from reaching a better solution. Workers need protections, but California’s worker classification law does not sufficiently satisfy this need.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"16 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116785636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Firms that provide training to their labor force may risk ex post opportunistic behavior on the part of their workers or of competing firms. Some arguably restrictive firm practices that have been justified by this concern include employment contracts restricting the freedom of workers to seek employment from the firm’s competitors and agreements among competing firms not to solicit or hire certain of each other’s workers – sometimes termed “non-compete” and “no poach” agreements, respectively. This Note considers these two categories of practices in the context of recent public discussions and enforcement actions by the US competition law enforcement agencies.
{"title":"A Note on Antitrust, Labor, and 'No Cold Call' Agreements in Silicon Valley","authors":"R. Pittman","doi":"10.2139/ssrn.3737856","DOIUrl":"https://doi.org/10.2139/ssrn.3737856","url":null,"abstract":"Firms that provide training to their labor force may risk ex post opportunistic behavior on the part of their workers or of competing firms. Some arguably restrictive firm practices that have been justified by this concern include employment contracts restricting the freedom of workers to seek employment from the firm’s competitors and agreements among competing firms not to solicit or hire certain of each other’s workers – sometimes termed “non-compete” and “no poach” agreements, respectively. This Note considers these two categories of practices in the context of recent public discussions and enforcement actions by the US competition law enforcement agencies.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"20 1-2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120915375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is no violation of work agreement clause should be scrutinized by the parties. Is there an element that violates the rules of labour law. This study aimed to analyse the violation case of the clause in a particular time employment agreement (PKWT) that resulted in dismissal. This research was a normative jurist with a legislative approach. The first research result showed that a form of legal protection for employees are fired because PKWT clause violations must be based on the truth of the content of the work agreement clause that did not violate the law. If the clause of the employment agreement was contrary to the rules of law, then the affected party can make legal efforts by non-litigation or litigation to Civil Court and Indusrial Relation Court.
{"title":"Critical Analysis of Violation of Work Agreement Clause","authors":"Maskhunatin Siti, Asri Wijayanti","doi":"10.2139/ssrn.3665485","DOIUrl":"https://doi.org/10.2139/ssrn.3665485","url":null,"abstract":"There is no violation of work agreement clause should be scrutinized by the parties. Is there an element that violates the rules of labour law. This study aimed to analyse the violation case of the clause in a particular time employment agreement (PKWT) that resulted in dismissal. This research was a normative jurist with a legislative approach. The first research result showed that a form of legal protection for employees are fired because PKWT clause violations must be based on the truth of the content of the work agreement clause that did not violate the law. If the clause of the employment agreement was contrary to the rules of law, then the affected party can make legal efforts by non-litigation or litigation to Civil Court and Indusrial Relation Court.<br>","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125282643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, a controversy has erupted over the distinction between employees and independent contractors. Commentators have argued that in the modern “gig economy,” many people traditionally classified as independent contractors are as vulnerable as employees and should be granted the legal protections that employees alone normally enjoy. However, the distinction between the two categories remains inescapable, and the theoretical basis for it has not been identified. I argue that the distinction is derived from market structure. Employees are workers who, because they must make relationship-specific investments in a single firm, are subject to labor monopsony. Independent contractors do not make such relationship-specific investments, and hence normally operate in a competitive labor market. Employment and labor law may be explained as a method for protecting workers from labor monopsony; because independent contracts are not subject to labor monopsony, they do not require such protection.
{"title":"The Economic Basis of the Independent Contractor/Employee Distinction","authors":"E. Posner","doi":"10.2139/ssrn.3582673","DOIUrl":"https://doi.org/10.2139/ssrn.3582673","url":null,"abstract":"In recent years, a controversy has erupted over the distinction between employees and independent contractors. Commentators have argued that in the modern “gig economy,” many people traditionally classified as independent contractors are as vulnerable as employees and should be granted the legal protections that employees alone normally enjoy. However, the distinction between the two categories remains inescapable, and the theoretical basis for it has not been identified. I argue that the distinction is derived from market structure. Employees are workers who, because they must make relationship-specific investments in a single firm, are subject to labor monopsony. Independent contractors do not make such relationship-specific investments, and hence normally operate in a competitive labor market. Employment and labor law may be explained as a method for protecting workers from labor monopsony; because independent contracts are not subject to labor monopsony, they do not require such protection.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"214 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114369837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
New forms of labour intermediation through digital platforms such as Uber, Deliveroo or Amazon Mechanical Turk can be conceptualised as the latest stage of a long-lasting process of disaggregation of the firm and “disorganisation of labour law.” In particular, the rise of platform-mediated work can be seen as an instantiation of deliberate business strategies aimed at outsourcing labour while retaining intense and pervasive managerial prerogative. The phenomenon is exacerbating several unresolved tensions inherent in the contemporary world of work, let alone the perverse impact that “platformisation” is having on precariousness and social inequalities.In short, new technologies allow platforms to abandon traditional methods of workplace governance and adopt a stronger version of the “command and control” logic. Direct interaction is replaced by a significant reliance on information communications technology: workers are monitored more closely and intimately than they ever used to be by means of tech tools, including algorithms, artificial intelligence and customers’ reviews. This leads to the question whether the existing concept of “firm” is appropriate to face this transformational new reality, whether minor or major adaptations may be necessary or whether we need a total re-invention of the underlying assumptions of the employment relationship.After describing the theoretical antecedents of hierarchical outsourcing, the article explores the literature on the nature of “non-standard forms of firm” by applying transaction-cost economics. In an attempt to update the incomplete trichotomy among “hierarchies,” “markets” and “networks,” I present a complementary model combining pre-existing schemes. By building on theories unfolding the disarticulation of the formal employing entity and the pulverisation of work-related responsibilities, this paper demystifies the prototypical business model of rampant socio-economic actors.
{"title":"Hierarchies without firms? Vertical disintegration, outsourcing and the nature of the platform","authors":"Antonio Aloisi","doi":"10.2139/ssrn.3124389","DOIUrl":"https://doi.org/10.2139/ssrn.3124389","url":null,"abstract":"New forms of labour intermediation through digital platforms such as Uber, Deliveroo or Amazon Mechanical Turk can be conceptualised as the latest stage of a long-lasting process of disaggregation of the firm and “disorganisation of labour law.” In particular, the rise of platform-mediated work can be seen as an instantiation of deliberate business strategies aimed at outsourcing labour while retaining intense and pervasive managerial prerogative. The phenomenon is exacerbating several unresolved tensions inherent in the contemporary world of work, let alone the perverse impact that “platformisation” is having on precariousness and social inequalities.In short, new technologies allow platforms to abandon traditional methods of workplace governance and adopt a stronger version of the “command and control” logic. Direct interaction is replaced by a significant reliance on information communications technology: workers are monitored more closely and intimately than they ever used to be by means of tech tools, including algorithms, artificial intelligence and customers’ reviews. This leads to the question whether the existing concept of “firm” is appropriate to face this transformational new reality, whether minor or major adaptations may be necessary or whether we need a total re-invention of the underlying assumptions of the employment relationship.After describing the theoretical antecedents of hierarchical outsourcing, the article explores the literature on the nature of “non-standard forms of firm” by applying transaction-cost economics. In an attempt to update the incomplete trichotomy among “hierarchies,” “markets” and “networks,” I present a complementary model combining pre-existing schemes. By building on theories unfolding the disarticulation of the formal employing entity and the pulverisation of work-related responsibilities, this paper demystifies the prototypical business model of rampant socio-economic actors.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130769301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The role of the traditional labour market has been changed by globalisation and modern technology, particularly by the unprecedented and generalised use of smartphones. The platform economy, also called “gig economy” is radically changing the rights and duties of service providers, as it is associated with a high degree of flexibility and profit maximisation, which suppresses or significantly limits traditional workers’ rights, such as the right to paid holiday, maternity license or unemployment benefits.
This paper focuses on Uber, the current international market leader on online ridesourcing platforms, and the impact they have on gig workers that chose to enter the platform. Online ridesourcing platforms assign private drivers to rides booked and paid for by passengers through an app. The platform’s drivers may vary from ‘genuine’ freelance business owners, ‘multiple jobholders’, “moonlight” workers to workers who opted for working full-time as gig workers.
Among the latter are former professional riders or amateur riders who were unable to cope with the tight restrictions of a heavily regulated professional passenger transportation sector, high-priced licenses, inefficient work-life balance policies and lack of safety guarantees. A sector of the scholarship argues that the conditions offered by platforms to drivers encourage entrepreneurship across all segments of society and foster the decentralization of economic growth. In fact, on-demand ridesharing platforms adapt the drivers’ income to the market, providing for primetime pricing to meet increased demand. Additionally, by allowing for a flexible work schedule, they are deemed to promote work-life balance. Finally, by integrating technology they ensure a more efficient provision of services and a safer one as well, with passenger registration, money-free rides and GPS location as integral part of the operation. The wider majority of the scholarship, however, has been heavily criticizing these platform services for infringing workers’ rights.
If there is an almost consensus in the scholarship that gig workers have been opting for entering a labour economy which will affect them, their families and other parts of the working population in the mid or long-run, the question is asked whether it is justified for regulators to nudge such workers into taking decisions (or imposing these upon them) which are better for their own welfare and the decent living standard of other workers. In other words, what should be the balance between respecting the autonomy of ‘gig-workers’ in grasping their chances to access the ‘gig-labour market’ and taking paternalizing measures to protect ‘gig-workers’ against ‘self-exploitation ’?
{"title":"Regulating the Autonomy of Gig Workers. A Paternalizing Look into the Consent-Based Platform Work Economy","authors":"Marta Santos Silva, M. Houwerzijl","doi":"10.2139/ssrn.3383159","DOIUrl":"https://doi.org/10.2139/ssrn.3383159","url":null,"abstract":"The role of the traditional labour market has been changed by globalisation and modern technology, particularly by the unprecedented and generalised use of smartphones. The platform economy, also called “gig economy” is radically changing the rights and duties of service providers, as it is associated with a high degree of flexibility and profit maximisation, which suppresses or significantly limits traditional workers’ rights, such as the right to paid holiday, maternity license or unemployment benefits.<br><br>This paper focuses on Uber, the current international market leader on online ridesourcing platforms, and the impact they have on gig workers that chose to enter the platform. Online ridesourcing platforms assign private drivers to rides booked and paid for by passengers through an app. The platform’s drivers may vary from ‘genuine’ freelance business owners, ‘multiple jobholders’, “moonlight” workers to workers who opted for working full-time as gig workers.<br><br>Among the latter are former professional riders or amateur riders who were unable to cope with the tight restrictions of a heavily regulated professional passenger transportation sector, high-priced licenses, inefficient work-life balance policies and lack of safety guarantees. A sector of the scholarship argues that the conditions offered by platforms to drivers encourage entrepreneurship across all segments of society and foster the decentralization of economic growth. In fact, on-demand ridesharing platforms adapt the drivers’ income to the market, providing for primetime pricing to meet increased demand. Additionally, by allowing for a flexible work schedule, they are deemed to promote work-life balance. Finally, by integrating technology they ensure a more efficient provision of services and a safer one as well, with passenger registration, money-free rides and GPS location as integral part of the operation. The wider majority of the scholarship, however, has been heavily criticizing these platform services for infringing workers’ rights.<br><br>If there is an almost consensus in the scholarship that gig workers have been opting for entering a labour economy which will affect them, their families and other parts of the working population in the mid or long-run, the question is asked whether it is justified for regulators to nudge such workers into taking decisions (or imposing these upon them) which are better for their own welfare and the decent living standard of other workers. In other words, what should be the balance between respecting the autonomy of ‘gig-workers’ in grasping their chances to access the ‘gig-labour market’ and taking paternalizing measures to protect ‘gig-workers’ against ‘self-exploitation ’? <br>","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125619466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-11-01DOI: 10.22329/WYAJ.V34I2.5021
Asher Alkoby, Pnina Alon-Shenker
While Canadian law generally provides protection against sexual orientation discrimination, and social acceptance is growing, there are some indications that LGBTQ lawyers face barriers relating to their sexual identity. Although more LGBTQ lawyers are now ‘out at work’, quantitative data is incomplete, and little is known about the actual experience of LGBTQ lawyers, who enter big firms in Ontario with the hope to advance through the ranks. This article begins to address this gap by providing qualitative analysis of the personal experience of LGBTQ lawyers entering the profession and the extent to which in-firm diversity initiatives shape their experience. Three main themes emerged from the interviews. First, racialized gay lawyers more consciously described their experiences at big law firms as negative and related it to their minority status. Second, the interviews offer insight into the ways in which gays and lesbians are forced to negotiate and perform their identity in a heteronormative workplace. Finally, the insights gleaned from the interviews suggest that the diversity programs devised by law firms may have helped diversify the lower ranks of law firms, but they seem to have failed to address the barriers that equity-seeking groups continue to face in retention and advancement through the ranks. The heteronormative organizational culture, as well as the promotion and compensation structures in firms continue to drive the composition of the leadership ranks and it arguably perpetuates homogeneity.
{"title":"Out of the Closet and Up the Ladder? Diversity in Ontario’s Big Law Firms","authors":"Asher Alkoby, Pnina Alon-Shenker","doi":"10.22329/WYAJ.V34I2.5021","DOIUrl":"https://doi.org/10.22329/WYAJ.V34I2.5021","url":null,"abstract":"While Canadian law generally provides protection against sexual orientation discrimination, and social acceptance is growing, there are some indications that LGBTQ lawyers face barriers relating to their sexual identity. Although more LGBTQ lawyers are now ‘out at work’, quantitative data is incomplete, and little is known about the actual experience of LGBTQ lawyers, who enter big firms in Ontario with the hope to advance through the ranks. This article begins to address this gap by providing qualitative analysis of the personal experience of LGBTQ lawyers entering the profession and the extent to which in-firm diversity initiatives shape their experience. Three main themes emerged from the interviews. First, racialized gay lawyers more consciously described their experiences at big law firms as negative and related it to their minority status. Second, the interviews offer insight into the ways in which gays and lesbians are forced to negotiate and perform their identity in a heteronormative workplace. Finally, the insights gleaned from the interviews suggest that the diversity programs devised by law firms may have helped diversify the lower ranks of law firms, but they seem to have failed to address the barriers that equity-seeking groups continue to face in retention and advancement through the ranks. The heteronormative organizational culture, as well as the promotion and compensation structures in firms continue to drive the composition of the leadership ranks and it arguably perpetuates homogeneity.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129088465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Taylor Review should be commended for recognising the success of the UK’s flexible labour market and for refusing to endorse the outright bans on zero-hours contracts and app-based “gig” economy advocated by the Labour Party, trade unions, and other pressure groups. However, its recommendations for further regulation of these types of work seem likely to inhibit their growth and reduce the benefits going to both consumers and workers. The Review fails to make a convincing argument that large numbers of workers are disadvantaged by working in different ways from the traditional model and downplays the costs of forcing businesses to treat self-employed people as “dependent contractors”. Many of the Review’s proposals for promoting “Good Work” are probably harmless, often because they are mere waffle. However, they underestimate the difficulties of assessing just what employees want from work, and of changing business behaviour. The proposed requirement to publish elaborate indicators of the “quality” of work will be an additional burden on firms and the taxpayer, and promote the mistaken notion that businesses exist to serve employees rather than consumers.
{"title":"A Response to the Taylor Review","authors":"J. Shackleton, J. Whyte","doi":"10.2139/ssrn.3853077","DOIUrl":"https://doi.org/10.2139/ssrn.3853077","url":null,"abstract":"The Taylor Review should be commended for recognising the success of the UK’s flexible labour market and for refusing to endorse the outright bans on zero-hours contracts and app-based “gig” economy advocated by the Labour Party, trade unions, and other pressure groups. However, its recommendations for further regulation of these types of work seem likely to inhibit their growth and reduce the benefits going to both consumers and workers. The Review fails to make a convincing argument that large numbers of workers are disadvantaged by working in different ways from the traditional model and downplays the costs of forcing businesses to treat self-employed people as “dependent contractors”. Many of the Review’s proposals for promoting “Good Work” are probably harmless, often because they are mere waffle. However, they underestimate the difficulties of assessing just what employees want from work, and of changing business behaviour. The proposed requirement to publish elaborate indicators of the “quality” of work will be an additional burden on firms and the taxpayer, and promote the mistaken notion that businesses exist to serve employees rather than consumers.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129076045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper is derived from our book The Common Law Employment Relationship: A Comparative Study recently published by Edward Elgar. This paper considers three key observations drawn from the book. First, the common law has developed differently in each jurisdiction, under the influence of the particular social and political circumstances in those jurisdictions. Second, the changing modes in which enterprises seek to engage subservient labour have placed the common law concept of employment under considerable pressure, and have (consequently) generated some evolution in the common law approach to defining employment. These developments also evidence jurisdictional variation. Finally, the impact of new technology has tested the common law’s capacity to accommodate changing expectations in employment relationships. Here we find fewer jurisdictional differences, and a greater tendency towards conservatism.
{"title":"The Common Law and the Individual Employment Relationship: A Three Jurisdictional Perspective","authors":"G. Anderson, D. Brodie, J. Riley","doi":"10.2139/SSRN.3049671","DOIUrl":"https://doi.org/10.2139/SSRN.3049671","url":null,"abstract":"This paper is derived from our book The Common Law Employment Relationship: A Comparative Study recently published by Edward Elgar. This paper considers three key observations drawn from the book. First, the common law has developed differently in each jurisdiction, under the influence of the particular social and political circumstances in those jurisdictions. Second, the changing modes in which enterprises seek to engage subservient labour have placed the common law concept of employment under considerable pressure, and have (consequently) generated some evolution in the common law approach to defining employment. These developments also evidence jurisdictional variation. Finally, the impact of new technology has tested the common law’s capacity to accommodate changing expectations in employment relationships. Here we find fewer jurisdictional differences, and a greater tendency towards conservatism.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132188687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A worker’s status as an “employee” is essential for protection under many modern employment laws. Even when it is clear that the worker is an “employee,” the worker’s rights are only against a firm that qualifies as that worker’s “employer.” Neither “employee” nor “employer" has any fixed or precise meaning. When firms acquire work, they often do so creatively in ways that resemble employment in some respects and resemble the purchase of work from non-employees in other respects. Many workers are ambiguous, and much employment litigation involves a problem of classifying workers one way or the other. This article invokes the economic and organizational “theory of the firm” to explain how firms decide whether to hire employees or to buy work from others. The theory of the firm can be useful not only for understanding why a firm might choose one option rather than the other, but also for determining what the firm has done in fact. Thus, this article proposes incorporating the theory of the firm in the rules for determining whether a worker is an employee or a non-employee seller of work, i.e., an independent contractor.
{"title":"Employment by Design: Employees, Independent Contractors and the Theory of the Firm","authors":"Richard R. Carlson","doi":"10.2139/ssrn.2919670","DOIUrl":"https://doi.org/10.2139/ssrn.2919670","url":null,"abstract":"A worker’s status as an “employee” is essential for protection under many modern employment laws. Even when it is clear that the worker is an “employee,” the worker’s rights are only against a firm that qualifies as that worker’s “employer.” Neither “employee” nor “employer\" has any fixed or precise meaning. When firms acquire work, they often do so creatively in ways that resemble employment in some respects and resemble the purchase of work from non-employees in other respects. Many workers are ambiguous, and much employment litigation involves a problem of classifying workers one way or the other. This article invokes the economic and organizational “theory of the firm” to explain how firms decide whether to hire employees or to buy work from others. The theory of the firm can be useful not only for understanding why a firm might choose one option rather than the other, but also for determining what the firm has done in fact. Thus, this article proposes incorporating the theory of the firm in the rules for determining whether a worker is an employee or a non-employee seller of work, i.e., an independent contractor.","PeriodicalId":292127,"journal":{"name":"LSN: Employment Contract Law (Topic)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131287614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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