Zatz on Prison Labor

Noah Zatz (UCLA) has just posted on SSRN his article (forthcoming Vanderbilt L. Rev.) Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships.  Here's the abstract:

Who is a worker? This question animates both feminist scholarship examining the status of non-market work relative to employment and labor law scholarship examining how firms' restructuring of labor markets challenges legal definitions of employment itself. This Article brings together these inquiries to show how legal determinations of employee status rely upon distinctions between market and non-market work.

By analyzing statutory employment law claims involving prison labor, I identify a previously unrecognized economic dimension to disputes over the employment relationship's scope. This economic dimension is analytically distinct from the traditional control dimension rooted in agency law. Courts often hold that inmates are not employees, despite being paid for their work, because their efforts lack the economic character necessary to form an employment relationship. Throughout employment law similar controversies arise over what can be characterized as paid non-market work in welfare, educational, medical, and religious institutions. When analyzing these disputes, courts are torn between two rival accounts of what makes employment economic. The more restrictive one requires a market relationship; the more expansive one requires productive work. Neither approach is viable.

Instead, to understand employment's economic dimension, we must dispense with the usual conception of employment law as identifying and regulating a relationship that exists independently in society. Instead, employment law partially constitutes employment as economic, giving it coherence, differentiating it from other relationships, and planting it in the market economy. Employment law helps create the very divide between economic and noneconomic relationships to which it purports to respond.

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