Wednesday, May 9, 2012

Rubinstein on Employment Status

MitchMitch Rubinstein (NYLS, Rutgers, Adjunct Prof Blog) has just posted on SSRN his article (14 U. Pa. J. Bus. L. 605 (2012)) Employees, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland between an Employer-and-Employee Relationship.  Here's the abstract:

In most cases, coverage under our nation’s employment laws boils down to the question of whether or not the individuals in question are “employees” and whether or not the entity in question is an “employer.” Significantly, however, there are burgeoning numbers of cases where employer status is found in the absence of a direct relationship to a statutory employer. This Article refers to these entities as quasi-employers because they are not employers in the traditional sense, yet they are subject to the dictates of employment law legislation.

This Article reviews the following theories of quasi-employer responsibility: the Sibley Interference Theory, the Spirt Delegation Theory, the Joint Employer Theory, and the Single Employer Theory. This Article also reviews the issue of individual supervisory liability as employers under the major employment statutes. Individuals are not normally thought of as employers, but they sometimes have a great deal of influence over the terms and conditions of employees’ employment. Therefore, this Article considers them to be a type of quasi-employer.

In order to analyze the definitional status of employers and quasi-employers, it is necessary to examine the definitional status of employees. Significantly, however, the law is in a complete state of disarray with regard to the definition of employee. Therefore, it should come as no surprise that the definition of employer is also often unclear. Nevertheless, there is a significant body of law that supports treating quasi-employers as employers. Unfortunately, there has not been much scholarship focusing on employer status and virtually no academic commentary discussing the status of quasi-employers.

As with employee status, it is important for there to be a clear definition of who is an employer so that both employees and employers know what their rights and responsibilities are. The consequences of not knowing who ones’ employer is can be fatal to any litigation. It is also important to outline clear criteria because future generations will be looking to established case law to determine employer status in work environments that may look very different from work environments of today.

It is hoped that this Article contributes to bringing about certainty to, in Justice Rutledge’s words, “the borderland” between what is an employer-employee relationship and what is not.


Employment Common Law, Employment Discrimination | Permalink

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