Pub Date : 2016-11-29DOI: 10.20318/SLLERJ.2017.3921
G. Davidov
The status of Uber drivers – the question of whether they are independent contractors (as argued by Uber) or employees – has been the subject of a heated debate recently. The goal of this paper is to address this question at the normative level: what should the law be in this regard? It begins, in part II, by briefly discussing some preliminary issues about how to address the problem: does it make sense to retain the employee/independent contractor distinction at all? Is it justified to maintain an “all or nothing” dichotomy? Should we leave the determination of “who is an employee” to courts? And finally, how should we interpret the term “employee” that appears in legislation? As will become clear, my approach is purposive, and Part III outlines – based on my previous writings – what this means in the context of identifying an employment relationship that justifies the application of labour laws. I will briefly consider several goals of labour law, and suggest that the most useful level of abstraction for current purposes is to focus on the unique vulnerabilities of employment, which I identify as democratic deficits (subordination, broadly conceived) and dependency (economic as well as for social/psychological needs). Finally, part IV applies these general principles to the specific context of Uber drivers, concluding eventually that Uber drivers should be considered employees.
{"title":"The Status of Uber Drivers: A Purposive Approach","authors":"G. Davidov","doi":"10.20318/SLLERJ.2017.3921","DOIUrl":"https://doi.org/10.20318/SLLERJ.2017.3921","url":null,"abstract":"The status of Uber drivers – the question of whether they are independent contractors (as argued by Uber) or employees – has been the subject of a heated debate recently. The goal of this paper is to address this question at the normative level: what should the law be in this regard? It begins, in part II, by briefly discussing some preliminary issues about how to address the problem: does it make sense to retain the employee/independent contractor distinction at all? Is it justified to maintain an “all or nothing” dichotomy? Should we leave the determination of “who is an employee” to courts? And finally, how should we interpret the term “employee” that appears in legislation? As will become clear, my approach is purposive, and Part III outlines – based on my previous writings – what this means in the context of identifying an employment relationship that justifies the application of labour laws. I will briefly consider several goals of labour law, and suggest that the most useful level of abstraction for current purposes is to focus on the unique vulnerabilities of employment, which I identify as democratic deficits (subordination, broadly conceived) and dependency (economic as well as for social/psychological needs). Finally, part IV applies these general principles to the specific context of Uber drivers, concluding eventually that Uber drivers should be considered employees.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128322495","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 response to worker misclassification lawsuits in the United States, there have been recent calls for the creation of a hybrid category in between employee and independent contractor specifically for the gig economy. However, such an intermediate category is not new. In fact, the intermediate category has existed in many countries for decades, producing successful results in some, and misadventure in others. In this article, we use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In our analysis we focus on a set of questions: Is labour law fundamentally outdated for the digital age? Does the gig economy need its own specialized set of rules, and what should they look like? What role does digitalization and technology play in the casualization of work? We ultimately conclude that workable proposals for a third category must also encompass other forms of precarious employment.
{"title":"'Dependent Contractors' in the Gig Economy: A Comparative Approach","authors":"Miriam A. Cherry, Antonio Aloisi","doi":"10.2139/ssrn.2847869","DOIUrl":"https://doi.org/10.2139/ssrn.2847869","url":null,"abstract":"In response to worker misclassification lawsuits in the United States, there have been recent calls for the creation of a hybrid category in between employee and independent contractor specifically for the gig economy. However, such an intermediate category is not new. In fact, the intermediate category has existed in many countries for decades, producing successful results in some, and misadventure in others. In this article, we use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In our analysis we focus on a set of questions: Is labour law fundamentally outdated for the digital age? Does the gig economy need its own specialized set of rules, and what should they look like? What role does digitalization and technology play in the casualization of work? We ultimately conclude that workable proposals for a third category must also encompass other forms of precarious employment.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128843663","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 : 2016-08-17DOI: 10.1108/S0733-558X20160000047022
Charlotte S. Alexander
This essay posits that legal avoidance - employers' search for forms of employment to which labor and employment laws do not apply - is an important driver of the restructuring of work. It examines three examples of restructuring that enable employers to avoid legal liability and compliance costs: the classification of workers as independent contractors; the use of part-time and variable-schedule work; and employers' deskilling of jobs and reliance on vulnerable workers. None of these strategies is itself unlawful, but their impact is to limit workers' legal protections and weaken the law itself. Employers may also experience unintended consequences of restructuring.
{"title":"Legal Avoidance and the Restructuring of Work","authors":"Charlotte S. Alexander","doi":"10.1108/S0733-558X20160000047022","DOIUrl":"https://doi.org/10.1108/S0733-558X20160000047022","url":null,"abstract":"This essay posits that legal avoidance - employers' search for forms of employment to which labor and employment laws do not apply - is an important driver of the restructuring of work. It examines three examples of restructuring that enable employers to avoid legal liability and compliance costs: the classification of workers as independent contractors; the use of part-time and variable-schedule work; and employers' deskilling of jobs and reliance on vulnerable workers. None of these strategies is itself unlawful, but their impact is to limit workers' legal protections and weaken the law itself. Employers may also experience unintended consequences of restructuring.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124116558","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}
Until 1877, when Horace Gray Wood’s A Treatise on the Law of Master and Servant was published, the rule in matter of termination of the employment relationship in the US was dismissal with notice, pursuant to the British Common Law tradition. On the contrary, Wood “reckoned” that the US rule in relation thereto was Employment-at-Will, which allowed any of the parties to immediately terminate in any case the employment relationship. Notwithstanding the ungrounded nature of Wood’s statement, since then US Courts started to adhere to Employment-at-Will, which became accordingly known as “Wood’s rule”. This constitutes a puzzle for legal theory, for the rule was “invented” but largely accepted by the legal community: it was, on the one hand, a false statement about the legal system but, on the other, a legal truth once accepted. In the present paper we try to make the puzzle explicit and to present a way-out of it, distinguishing a pre-Wood and a post-Wood context. However, such a way-out does not solve by itself the legitimation issue represented by the shift from the first to the second context.
{"title":"From Judge-Made Law to Scholar-Made Law? The Strange Case of Employment-at-Will in the US","authors":"Marco Biasi, Giovanni Tuzet","doi":"10.2139/ssrn.3135813","DOIUrl":"https://doi.org/10.2139/ssrn.3135813","url":null,"abstract":"Until 1877, when Horace Gray Wood’s A Treatise on the Law of Master and Servant was published, the rule in matter of termination of the employment relationship in the US was dismissal with notice, pursuant to the British Common Law tradition. On the contrary, Wood “reckoned” that the US rule in relation thereto was Employment-at-Will, which allowed any of the parties to immediately terminate in any case the employment relationship. Notwithstanding the ungrounded nature of Wood’s statement, since then US Courts started to adhere to Employment-at-Will, which became accordingly known as “Wood’s rule”. This constitutes a puzzle for legal theory, for the rule was “invented” but largely accepted by the legal community: it was, on the one hand, a false statement about the legal system but, on the other, a legal truth once accepted. In the present paper we try to make the puzzle explicit and to present a way-out of it, distinguishing a pre-Wood and a post-Wood context. However, such a way-out does not solve by itself the legitimation issue represented by the shift from the first to the second context.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128754063","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 : 2016-07-05DOI: 10.17159/1727-3781/2016/V19I0A555
D. Millard, Eugene Gustav Bascerano
A person whose privacy has been infringed through the unlawful, culpable processing of his or her personal information can sue the infringer’s employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (“data subject”), whose privacy has been infringed, with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for processing of personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term “responsible party” is undoubtedly a synonym for “employer” in this context. By holding an employer accountable for its employees’ unlawful processing of a data subject’s personal information, POPI creates a form of statutory vicarious liability. Since the defences available to an employer at common law, and developed by case law, differs from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act does not perhaps take matters too far. This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is is too harsh, the defences contained in section 99(2) of POPI is further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes.
{"title":"Employers' Statutory Vicarious Liability in Terms of the Protection of Personal Information Act","authors":"D. Millard, Eugene Gustav Bascerano","doi":"10.17159/1727-3781/2016/V19I0A555","DOIUrl":"https://doi.org/10.17159/1727-3781/2016/V19I0A555","url":null,"abstract":"A person whose privacy has been infringed through the unlawful, culpable processing of his or her personal information can sue the infringer’s employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (“data subject”), whose privacy has been infringed, with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for processing of personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term “responsible party” is undoubtedly a synonym for “employer” in this context. By holding an employer accountable for its employees’ unlawful processing of a data subject’s personal information, POPI creates a form of statutory vicarious liability. Since the defences available to an employer at common law, and developed by case law, differs from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act does not perhaps take matters too far. This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is is too harsh, the defences contained in section 99(2) of POPI is further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115678505","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 the framework of the so-called “sharing economy”, the number of on-demand companies matching labour supply and demand is on the rise. These schemes may enlarge opportunities for people willing to find a job or to top up their salaries. Despite the upsides of creating new peer marketplaces, these platforms may also be used to circumvent employment regulation, by operating informally in traditionally regulated markets.Literature showed how, by 2009, over 2 million worker accounts had been generated within these frameworks. Productivity may be fostered but, at the same time, a new version of Taylorism is disseminated (i.e. the fragmentation of labour into hyper-temporary jobs – they call them microtasks – on a virtual assembly line), strengthened by globalisation and computerisation. All these intermediaries recruit freelance or casual workers (these continue to be independent contractors even though many indicators seem to reveal a disguised employment relationship).Uncertainty and insecurity are the price for extreme flexibility. A noteworthy volume of business risk is shifted to workers, and potential costs as benefits or unemployment insurance are avoided. Minimum wages are often far from being reached.This paper will present a case study analysis of several “on-demand work” platforms, starting from the Amazon Mechanical Turk, one of the first schemes founded in 2005, which is arguably “employing humans-as-a-service”. It splits a single service in several micro “Human Intelligence Tasks” (such as tagging photographs, writing short descriptions, transcribing podcasts, processing raw data); “Turkers/Providers” (workers) are selected by “Requesters” to rapidly accomplish assignments online, are then rated according to an internal system and are finally paid (also in gaming credits) only if delivery is accepted. After having signed up and worked within some platforms, I comment upon TaskRabbit (thousands people on the service who bid to do simple manual tasks), Handy and Wonolo (personal assistance at a local level), oDesk and Freelancer (online staffing), Uber and Lyft (peer-to-peer ridesharing), Airbnb (hosting service), InnoCentive (engineering solutions), Axiom (legal research or service), BitWine (consultancy).Finally I highlight downsides and upsides of work in these platforms by studying terms of service or participation agreements to which both parties have to agree. I look into several key features such as (i) means of exchange/commodities, (ii) systems of payment, (iii) demographics, (iv) legal issues concerning status and statutory protection of workers, indicators of subordination, treatment of sickness, benefits and overtime, potential dispute resolution, and deprived “moral valence of work” and I discuss potential strategies to address these issues.
{"title":"Commoditized Workers. Case Study Research on Labour Law Issues Arising from a Set of 'On-Demand/Gig Economy' Platforms","authors":"Antonio Aloisi","doi":"10.2139/ssrn.2637485","DOIUrl":"https://doi.org/10.2139/ssrn.2637485","url":null,"abstract":"In the framework of the so-called “sharing economy”, the number of on-demand companies matching labour supply and demand is on the rise. These schemes may enlarge opportunities for people willing to find a job or to top up their salaries. Despite the upsides of creating new peer marketplaces, these platforms may also be used to circumvent employment regulation, by operating informally in traditionally regulated markets.Literature showed how, by 2009, over 2 million worker accounts had been generated within these frameworks. Productivity may be fostered but, at the same time, a new version of Taylorism is disseminated (i.e. the fragmentation of labour into hyper-temporary jobs – they call them microtasks – on a virtual assembly line), strengthened by globalisation and computerisation. All these intermediaries recruit freelance or casual workers (these continue to be independent contractors even though many indicators seem to reveal a disguised employment relationship).Uncertainty and insecurity are the price for extreme flexibility. A noteworthy volume of business risk is shifted to workers, and potential costs as benefits or unemployment insurance are avoided. Minimum wages are often far from being reached.This paper will present a case study analysis of several “on-demand work” platforms, starting from the Amazon Mechanical Turk, one of the first schemes founded in 2005, which is arguably “employing humans-as-a-service”. It splits a single service in several micro “Human Intelligence Tasks” (such as tagging photographs, writing short descriptions, transcribing podcasts, processing raw data); “Turkers/Providers” (workers) are selected by “Requesters” to rapidly accomplish assignments online, are then rated according to an internal system and are finally paid (also in gaming credits) only if delivery is accepted. After having signed up and worked within some platforms, I comment upon TaskRabbit (thousands people on the service who bid to do simple manual tasks), Handy and Wonolo (personal assistance at a local level), oDesk and Freelancer (online staffing), Uber and Lyft (peer-to-peer ridesharing), Airbnb (hosting service), InnoCentive (engineering solutions), Axiom (legal research or service), BitWine (consultancy).Finally I highlight downsides and upsides of work in these platforms by studying terms of service or participation agreements to which both parties have to agree. I look into several key features such as (i) means of exchange/commodities, (ii) systems of payment, (iii) demographics, (iv) legal issues concerning status and statutory protection of workers, indicators of subordination, treatment of sickness, benefits and overtime, potential dispute resolution, and deprived “moral valence of work” and I discuss potential strategies to address these issues.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"2002 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125761863","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}
My paper describes employer wellness programs and the governing law. It is a short essay on the threat to employee privacy posed by employer wellness programs, ending with a critique of the central premise of libertarianism, that limiting the power of government necessarily increases human freedom.
{"title":"Wellness Programs, Broccoli, and Libertarianism","authors":"Allen R. Kamp","doi":"10.2139/ssrn.2771250","DOIUrl":"https://doi.org/10.2139/ssrn.2771250","url":null,"abstract":"My paper describes employer wellness programs and the governing law. It is a short essay on the threat to employee privacy posed by employer wellness programs, ending with a critique of the central premise of libertarianism, that limiting the power of government necessarily increases human freedom.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115333648","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}
Prompted by the Australian High Court’s decision in Commonwealth Bank of Australia v. Barker,1 this article assesses judicial law-making through terms implied by law in Australian employment contracts. In Barker, the court refused to imply a term of mutual trust and confidence, influenced in part by a judicial disinclination to trespass into the province of the legislature. The article examines what role judges ought to play in regulating Australian employment contracts. It concludes that, following the High Court’s decision in Barker, the symbiotic relationship between statute and the common law ought to be reinvigorated. To facilitate that reinvigoration, the article proposes the creation of statutory default minimum rules for the employment relationship. However, it will also argue that the courts must remain willing to imply terms by law into employment contracts because it is impossible for parliament to predict all future gaps that may need to be filled.
在澳大利亚高等法院对澳大利亚联邦银行诉巴克案(Commonwealth Bank of Australia v. Barker)判决的推动下，本文通过澳大利亚雇佣合同中的法律隐含条款来评估司法立法。在巴克案中，法院拒绝暗示一个相互信任和信任的术语，部分原因是司法不愿意侵入立法机关的领域。本文探讨了法官在规范澳大利亚劳动合同中应发挥的作用。它的结论是，在高等法院对巴克案的裁决之后，成文法和普通法之间的共生关系应该重新焕发活力。为了促进这种复苏，文章建议为雇佣关系建立法定的最低违约规则。然而，它也将辩称，法院必须继续愿意在雇佣合同中隐含法律条款，因为议会不可能预测未来可能需要填补的所有缺口。
{"title":"The Role of Judges in the Regulation of Australian Employment Contracts","authors":"G. Golding","doi":"10.54648/ijcl2016005","DOIUrl":"https://doi.org/10.54648/ijcl2016005","url":null,"abstract":"Prompted by the Australian High Court’s decision in Commonwealth Bank of Australia v. Barker,1 this article assesses judicial law-making through terms implied by law in Australian employment contracts. In Barker, the court refused to imply a term of mutual trust and confidence, influenced in part by a judicial disinclination to trespass into the province of the legislature. The article examines what role judges ought to play in regulating Australian employment contracts. It concludes that, following the High Court’s decision in Barker, the symbiotic relationship between statute and the common law ought to be reinvigorated. To facilitate that reinvigoration, the article proposes the creation of statutory default minimum rules for the employment relationship. However, it will also argue that the courts must remain willing to imply terms by law into employment contracts because it is impossible for parliament to predict all future gaps that may need to be filled.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120933865","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 article forms part of a tribute to Professor Harry Arthurs on the occasion of his 80th birthday. Over the past two decades, Professor Arthurs has argued that the state’s failure to regulate to improve working conditions may stem in part from enhanced capital mobility, but also arises from what he calls a “globalization of the mind” - perceptions of globalization’s constraints on public policy that may operate somewhat independently of underlying economic realities. In Fairness at Work, a 2006 report to the Canadian federal government, Professor Arthurs argued that despite the effects of globalization and the new economy, governments had not lost their ability to reform labour and employment laws that addressed the needs of Canadian workers. However, he acknowledged following the Report that his recommendations had “sunk like a stone.” This article considers why this happened. It contends that states are more constrained by a “globalization of the mind” than by hard economic facts. On the other hand, collective bargaining does often find itself at the hard edges of economic realities. As a result, insofar as it remains a potentially progressive actor, it is the state that increasingly finds itself without labour law and without labour, rather than the other way around. The article goes on to suggest that progressives turn their attention to how democratic politics might once again envision, mobilize around and deliberate upon better alternatives for reducing inequality. But it acknowledges Professor Arthurs’ concerns that our current democratic politics may not be capable of grasping the need for and acting upon new social and economic policies that could reduce inequality.
{"title":"Workplace Law Without the State?","authors":"K. Banks","doi":"10.2307/j.ctt1w1vksv.19","DOIUrl":"https://doi.org/10.2307/j.ctt1w1vksv.19","url":null,"abstract":"This article forms part of a tribute to Professor Harry Arthurs on the occasion of his 80th birthday. Over the past two decades, Professor Arthurs has argued that the state’s failure to regulate to improve working conditions may stem in part from enhanced capital mobility, but also arises from what he calls a “globalization of the mind” - perceptions of globalization’s constraints on public policy that may operate somewhat independently of underlying economic realities. In Fairness at Work, a 2006 report to the Canadian federal government, Professor Arthurs argued that despite the effects of globalization and the new economy, governments had not lost their ability to reform labour and employment laws that addressed the needs of Canadian workers. However, he acknowledged following the Report that his recommendations had “sunk like a stone.” This article considers why this happened. It contends that states are more constrained by a “globalization of the mind” than by hard economic facts. On the other hand, collective bargaining does often find itself at the hard edges of economic realities. As a result, insofar as it remains a potentially progressive actor, it is the state that increasingly finds itself without labour law and without labour, rather than the other way around. The article goes on to suggest that progressives turn their attention to how democratic politics might once again envision, mobilize around and deliberate upon better alternatives for reducing inequality. But it acknowledges Professor Arthurs’ concerns that our current democratic politics may not be capable of grasping the need for and acting upon new social and economic policies that could reduce inequality.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"243 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121670248","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}
Employers profit from giving customers opportunities to discriminate against service workers. Employment discrimination law should not, but in many ways does, allow them to get away with it. Employers are driven by self-interest to please customers, whose satisfaction is critical to business success and survival. Pleasing customers often involves cultivating and catering to their discriminatory expectations with respect to customer service — including facilitating customers’ direct discrimination against workers. Current doctrine allows employers to escape responsibility for customers’ discrimination against workers because it takes an overly narrow view of the employment relationship, focusing on the formal lines of authority that run between two parties, the employer and employee. But in fact, the structure of service work relationships is triangular: Customers play a powerful role in determining the terms, conditions, and privileges of employment because of the characteristics of service work and the importance of customer satisfaction to the employer’s bottom line. By separating the employer from discrimination that originates outside the employer-employee dyad and overlooking the realities of the service work environment, the prevailing legal model accepts employers’ rhetoric casting practices that facilitate discrimination against workers as simply “good customer service.”This article argues that the law should not allow discrimination in employment to masquerade as customer service. It should hold employers accountable for the ways in which they facilitate and benefit from customers’ discrimination against service workers. To support this argument, the article draws on the sociology of service work to explain some familiar, problematic employment practices by illuminating how the triangular structure of relationships combines with the culture of “customer sovereignty” to promote discrimination in service work. The article then introduces another common practice that may be less well known to readers — the use of customer feedback to monitor and evaluate workers or “management by customers” — through which employers have drawn the customer directly into the management of employees, leaving workers vulnerable to customer discrimination that is processed through management decisions but may be hard to reach under current doctrine. The article argues that employment discrimination law should and can hold employers accountable when they base employment decisions on discriminatory customer feedback. More broadly, it argues that employment discrimination law needs a model of employer liability to reach discrimination that originates beyond the employer-employee dyad, in recognition of both the triangular structure of, and the power of the customer in, interactive service work.
{"title":"When the Customer Is King: Employment Discrimination as Customer Service","authors":"Lu-in Wang","doi":"10.2139/ssrn.2657758","DOIUrl":"https://doi.org/10.2139/ssrn.2657758","url":null,"abstract":"Employers profit from giving customers opportunities to discriminate against service workers. Employment discrimination law should not, but in many ways does, allow them to get away with it. Employers are driven by self-interest to please customers, whose satisfaction is critical to business success and survival. Pleasing customers often involves cultivating and catering to their discriminatory expectations with respect to customer service — including facilitating customers’ direct discrimination against workers. Current doctrine allows employers to escape responsibility for customers’ discrimination against workers because it takes an overly narrow view of the employment relationship, focusing on the formal lines of authority that run between two parties, the employer and employee. But in fact, the structure of service work relationships is triangular: Customers play a powerful role in determining the terms, conditions, and privileges of employment because of the characteristics of service work and the importance of customer satisfaction to the employer’s bottom line. By separating the employer from discrimination that originates outside the employer-employee dyad and overlooking the realities of the service work environment, the prevailing legal model accepts employers’ rhetoric casting practices that facilitate discrimination against workers as simply “good customer service.”This article argues that the law should not allow discrimination in employment to masquerade as customer service. It should hold employers accountable for the ways in which they facilitate and benefit from customers’ discrimination against service workers. To support this argument, the article draws on the sociology of service work to explain some familiar, problematic employment practices by illuminating how the triangular structure of relationships combines with the culture of “customer sovereignty” to promote discrimination in service work. The article then introduces another common practice that may be less well known to readers — the use of customer feedback to monitor and evaluate workers or “management by customers” — through which employers have drawn the customer directly into the management of employees, leaving workers vulnerable to customer discrimination that is processed through management decisions but may be hard to reach under current doctrine. The article argues that employment discrimination law should and can hold employers accountable when they base employment decisions on discriminatory customer feedback. More broadly, it argues that employment discrimination law needs a model of employer liability to reach discrimination that originates beyond the employer-employee dyad, in recognition of both the triangular structure of, and the power of the customer in, interactive service work.","PeriodicalId":357008,"journal":{"name":"Employment Law eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122808200","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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