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.
Source: David Spencer, Work, employment and society, Vol 31, Issue 1, 2017
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.
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.
Source: Mark Feffer, HR Magazine, Vol. 61 no. 9, November 2016
HR is using smarter systems to help manage gig workers.
Source: Valerio De Stefano, Industrial Law Journal, Advance Access, First published online: October 19, 2016
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.
Source: Brishen Rogers, American Constitution Society (ACS), ACS Issue Brief, October 2016
From the blog post:
The explosive growth of Uber and other on-demand labor platforms has brought public attention to a longstanding issue facing workers in this country: the fissuring of employment. Fissuring comes in many forms, including misclassification of employees as independent contractors, subcontracting and franchising arrangements.
Such strategies can deprive workers of their rights under our employment laws, most of which define employment per the common law “right to control test.” That definition is narrow, failing to reflect the economic realities of modern work relationships. It is also notoriously difficult to apply in practice, which increases litigation costs and disempowers low-wage workers.
This is not a small problem. Wage and Hour Administrator David Weil estimates that there are “over 29 million workers in just five industries affected … including in the construction, hospitality, janitorial, personal care and home health care industries.”
Unfortunately, some prominent reform proposals—such as to create a new legal category of worker that would slot between “employee” and “independent contractor,” with limited employment rights—would move us backwards rather than forwards. Ethically speaking, workers in fissured relationships are no less deserving of basic protections than standard employees. Creating a third category of worker would also make employment status litigation even more complicated and more expensive.
In a new issue brief for ACS, I propose an omnibus employment status bill to address such challenges. The central reform would redefine employment under the core federal labor/employment statutes per the broad “suffer or permit” test from the federal Fair Labor Standards Act. In misclassification cases under that test, courts’ and agencies’ task is not to determine whether the putative employer enjoys a right to control the performance of the work, but rather “to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”
Source: John Howard, American Journal of Industrial Medicine, Early View, First published: 25 October 2016
From the abstract:
Arrangements between those who perform work and those who provide jobs come in many different forms. Standard work arrangements now exist alongside several nonstandard arrangements: agency work, contract work, and gig work. While standard work arrangements are still the most prevalent types, the rise of nonstandard work arrangements, especially temporary agency, contract, and “gig” arrangements, and the potential effects of these new arrangements on worker health and safety have captured the attention of government, business, labor, and academia. This article describes the major work arrangements in use today, profiles the nonstandard workforce, discusses several legal questions about how established principles of labor and employment law apply to nonstandard work arrangements, summarizes findings published in the past 20 years about the health and safety risks for workers in nonstandard work arrangements, and outlines current research efforts in the area of healthy work design and worker well-being.
Source: Ian Hathaway and Mark Muro, Brookings Institution, October 13, 2016
The gig economy, as reflected by nonemployer firms, is significant and growing fast. Overall, there has been a clear surge in nonemployer firms’ — a measure of contractor and freelance individuals — business activity in the last decade, which almost certainly reflects, at least in part, the rise of online platforms.
Platform-based freelancing is not yet substantially displacing payroll employment—but that could change. Despite the uptick in nonemployer contractors, payroll employment in “rides and rooms” industries has not declined during the last five years. Instead, payroll employment has increased in these industries, particularly in the passenger ground transit sectors.
Online gigging in the rides and rooms industries is so far concentrated in large metropolitan areas. Gig economy activity is unevenly distributed in the rides and rooms industries. The spread of nonemployer firms between 2010 and 2014 occurred mostly in the largest metro areas. No less than 81 percent of the four-year net growth in nonemployer firms in the rides sector took place in the 25 largest metros, while 92 percent occurred in the largest 50 metros.
Source: Orly Lobel, University of San Diego School of Law, San Diego Legal Studies Paper No. 16-223, 2016
From the abstract:
In April 2016, Professor Orly Lobel delivered the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. Lobel asks, what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? She proposes four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work.
Source: Hyunkang Hur, James L. Perry, Public Personnel Management, Vol. 45 no. 3, September 2016
From the abstract:
For most of the 20th century, public employers granted their employees high levels of job security. The 21st century has brought a reversal of fortunes, with emphasis increasingly on at-will employment systems. Both distant and recent policy choices about job security have been based largely on normative and ideological considerations rather than behavioral science evidence. This article synthesizes public- and private-sector job security research to provide a more evidence-based footing for future public job security policy. Although changes related to job security are global, our attention is primarily on the United States. The article reviews job security research with origins in organizational behavior research, at-will employment research, and institutionalization and public trust research across sectors. Based on the review of the literature, we develop an integrative model of job security. We highlight practical implications that flow from the model and discuss future research needs.