The Subjects of Labor Law: ‘Employees’ and Other Workers

Source: Guy Davidov, Mark R. Freedland, Nicola Countouris, Forthcoming in RESEARCH HANDBOOK IN COMPARATIVE LABOR LAW (Matthew Finkin & Guy Mundlak Eds., Edward Elgar 2015)

From the abstract:
Who is an employee? Which workers ought to be covered by the protective panoply offered by labor law? These are questions with a long history. In the current contribution we consider them from a comparative perspective. Our aim is to highlight similarities and differences between different legal systems. This cross-national analysis can in turn assist the national analyses. Understanding how others have been approaching the same problem can help us better understand our own legal system, including in terms of its historical development and in identifying shortcoming, inconsistencies and hidden assumptions. Understanding to what extent the problem and solutions are universal can also assist us in identifying the normative foundations behind the law.

We start with a brief overview of the tests used in different countries to decide if one is an employee (and covered by labor law), showing some points of diversity but for the most part significant similarities, with a trend towards greater convergence. We then turn to examine some relatively recent developments in different legal systems through three prisms. First we discuss the response in different countries to employers’ evasion attempts. We show how in some systems courts and legislatures remain inactive in the face of evasion, and the stagnation of the law leaves room to massive misclassification of employees as independent contractors. In other countries, on the other hand, creative solutions have been used to contain or minimize this problem. Next we consider the dialogue between the judiciary and the legislature in determining who is an employee. We show how in some countries, judicial approaches to the problem have triggered a legislative response, while in others the legislature remains silent, possibly to signal approval or simply out of disinterest. Finally, we examine the breaking of the binary divide between employees and independent contractors. We show that a third (intermediate) category has been added in an increasing number of countries, as a response to similar problems in classifying workers who share only some of the characteristics of employees. In the conclusion we return to reflect on the issues of diversity vs. convergence, in light of the developments discussed in the previous parts.