Category Archives: Employment Practices

Lots of Employees Get Misclassified as Contractors. Here’s Why It Matters

Source: David Weil, Harvard Business Review, July 5, 2017

…. The debate over the misclassification of employees — treating them as independent contractors instead of employees — pervades the modern fissured workplace. …. Though its form varies, the impacts of misclassification are almost always the same: the underpayment of wages, absence of benefits, and increased exposure to a variety of risks. And when misclassification is adopted as a business strategy by some companies, it quickly undermines other, more responsible employers who face costs disadvantages arising from compliance with labor standards and responsibilities. ….

Gig Work Doesn’t Have to Be Isolating and Unstable

Source: Carrie M. Lane, Harvard Business Review, May 4, 2017

With the rise of the so-called “gig economy” has come debate about how companies treat the people who “work” for them. Much of this criticism asks whether gig workers are underpaid, overworked, or subject to exploitation and even abuse. More fundamentally, others have asked whether gig work, performed even under the best of circumstances, is something to be celebrated. In short, does gig work equal a good job?

This question is a complicated one. Courts are debating whether gig work is technically a “job” at all. Are Uber drivers, TaskRabbits, and Etsy crafters legally employees, independent contractors, or something in between? As employees, gig workers would be entitled to a minimum wage, overtime pay, and unemployment insurance. Securing those rights and protections is important, but it’s not clear that these changes alone will turn gig work into a stable, well-respected career…..

Quality Jobs, Quality Education, Better Futures: What We Heard About Precarious Work In the Post-Secondary Sector

Source: Canadian Union of Public Employees (CUPE), June 2017

From the summary:
Precarious work deeply impacts people’s lives, health and well-being, and ultimately, their communities. That’s the number one thing CUPE heard in a series of town halls on precarious work in the post-secondary sector held earlier this year.

In a new report, CUPE outlines the key lessons we heard from our members and our allies. These include important distinctions about what precarious work looks like on campuses today, such as the reality that precarious work is not just about filling temporary vacancies or short-term roles: some temporary employees have been in their positions for years and have even risen to the rank of supervisor or department chair.

Furthermore, our report reveals, more schools are using students for labour without offering adequate wages or protection. In particular, reliance on undergraduates to provide academic and support work is growing.

The growing reliance of post-secondary institutions on precarious work has serious consequences for workers. Precarious workers have higher levels of stress, greater difficulty defending their rights, limited ability to make life choices that many of us take for granted, and lower access to government programs and services. Precarity also makes it harder for workers to be good at their job, as well as making it harder for other workers to do their jobs.

Our report concludes with a list of ways that CUPE National, CUPE locals, CUPE members, and our allies can fight back against precarious work. Strategies include organizing, collective bargaining, and getting involved in politics.

CUPE will continue to make fighting precarious work a priority and to call on universities and colleges to make every post-secondary job a respectable job.

Can universal basic income counter the ill-effects of the gig economy?

Source: Vili Lehdonvirta, The Conversation, April 12, 2017
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Platforms like eBay, Uber, Airbnb, and Freelancer are thriving, growing the digital economy and disrupting existing business. The question is how to ensure that the transformations they entail have a positive impact on society. Here, universal basic income may have a role to play.

Few social policy ideas are as hot today as universal basic income. Social scientists, technologists, and politicians from both ends of the political spectrum see it as a potential solution to the unemployment that automation and artificial intelligence are expected to create.

It has also been floated as a potential solution to the rise of the gig economy, where work is centred around on-demand tasks and short-term projects as opposed to regular full-time employment. This is the kind of employment that platforms like Uber and Freelancer are based on…..

A Modern Union for the Modern Economy

Source: Jeffrey M. Hirsch, Joseph Seiner, University of North Carolina School of Law, UNC Legal Studies Research Paper No. 2924833, Last revised: 19 Mar 2017

From the abstract:
Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes.

This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship.

This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. Closely examining the implications of these existing quasi-union relationships, this Article explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While there can be no doubt that a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections. A modern union is needed for the modern economy.

Work in and beyond the Second Machine Age: the politics of production and digital technologies

Source: David Spencer, Work, employment and society, Vol 31, Issue 1, 2017
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From the abstract:
Erik Brynjolfsson and Andrew McAfee, in their widely read and politically impactful book The Second Machine Age, highlight the costs and benefits of digital technologies for the volume and quality of work and identify reforms designed to ensure that digital technologies deliver net advantages to workers and society more generally. This article offers a critique of their thesis. Specifically, it criticizes the authors for their neglect of the nexus between the politics of production and digital technologies. They fail, in short, to grasp the importance of power relations for the form, direction and outcomes of digital technologies. The article argues for an alternative view of the progress of digital technologies that is rooted in an understanding of the political economy of capitalism. In this respect, it draws on and applies ideas and concepts from Marxian political economy.

Direct and Indirect Employment Under Title VII

Source: Charlotte Alexander, Georgia State University College of Law, Legal Studies Research Paper No. 2016-16, 2016

From the abstract:
This short essay, prepared for the New York University School of Law’s 68th Annual Conference on Labor, outlines the law of direct and indirect employment under Title VII of the Civil Rights Act of 1964. The essay then notes confusion in the case law surrounding indirect employment, where a plaintiff seeks to extend Title VII liability to an entity other than her nominal employer. Many courts appear to be importing the common law agency test from the direct employment context, where there is a dispute over whether a worker is properly an independent contractor or an employee. This mixing of separate standards effectively requires plaintiffs to prove a direct employment relationship as to all defendants, eliminating the possibility of an indirect, de facto, or joint, employment relationship. The essay ends by advocating for courts to consider the economic realities of the relationship between a worker and her putative employer(s) in assessing claims of indirect employment.

Non-Standard Work and Limits on Freedom of Association: A Human Rights-Based Approach

Source: Valerio De Stefano, Industrial Law Journal, Advance Access, First published online: October 19, 2016
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From the abstract:
The debate on how to adjust existing regulation to keep pace with the rise and spread of the non-standard workforce worldwide has mainly concentrated on individual employment law. This article means to draw attention to some collective labour regulation issues that have a significant impact on the labour protection of non-standard workers. Without subscribing to the idea that the standard employment relationship is an outmoded model of regulation, this article argues that some existing restrictions on collective rights are failing to keep pace with transformations of labour markets that occurred in recent decades and in particular with the growth in the number of non-standard workers. Consequently, these workers are legally or practically denied access to the meaningful exercise of collective rights. Some of these restrictions, such as antitrust bans on collective bargaining, regulations imposing strike ballots, limitations of secondary action and the distinction between political and economic strikes, are called into question since they disproportionately affect non-standard workers and are at odds with the recognition of collective rights, and in particular the right to strike, as human rights.