From the abstract:
In 2013, Northeastern University Law Journal hosted a symposium, titled “Employed or Just Working?,” to address issues of legal protections for workers in the United States, regardless of their official classifications.
This article introduces the symposium’s resultant articles. It places the specific topics addressed by issue contributors in the context of the history of workers’ rights being defined and redefined as courts and legislatures responded to complex social, political and economic forces.
This contextualization touches on several periods: the post-Lochner depression era; the era of civil rights activism that gave rise to basic notions of dignity and rejected discrimination based on status; and the emergence of concern in the 1970s regarding the status of at-will employees when their claims collided with matters of public concern – resulting in various anti-retaliation provisions both under the common law and under a myriad of whistleblower statutes. Reflecting an assumption that the employee-employer relationship was amenable to simple analysis and definition, none of the 20th century federal statutes attempted to include even a reasonably useful definition of the key terms of “employee” or “employer.” In fact, the statutory definitions are tautological: employees are individuals employed by employers; employers are entities that employ employees. Despite this statutory assumption, the courts have repeatedly been called upon to apply each statute to nonstandard employment relationships. The definitional problems have never been solved, as the articles in this symposium illustrate.
The author finds that the four contributed articles draw a troubling picture, reminding us that there are inadequate legal protections for misclassified workers and workers in nonstandard and evolving work arrangements.