Thursday, February 3, 2022

New, Accessible Cal-Berkeley Law Review Article Treats the "Fissured Workplace," Argues for More Rights for "Non-entrepreneurial" Independent Contractors

    Next month, Professor Duff and I will (after a two-year delay), present, for the ABA New Orleans CLE, on the gig workforce and workers' compensation.  In reviewing the absolute latest literature, one broad treatment of the issue stood out most prominently for me: Tanya Goldman & David Weil, Who’s Responsible Here? Establishing Legal Responsibility in the Fissured Workplace, 42 Berkeley Journal of Employment & Labor Law 55 (2021).

    In that new article, the authors propose a re-conceptualization of employment, vis-à-vis work rights and social welfare protections, in light of what they call the “fissured workplace.” This term -- coined by co-author Dean David Weil in his enlightening 2014 book -- refers to the decline of the familiar employer-employee model of work, and the corresponding rise of non-entrepreneurial independent contractorship, franchise arrangements, and the like.  The authors explain this trend, revisiting in critical aspect Weil’s 2014 account.  (As for the original book, see David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (2014)).

    The article, a concise and fluidly-composed tour de force, is an excellent primer (or refresher) on the thorny issue of employment and the rights and benefits associated with the same.  And, notably, the authors are attentive to one key benefit enjoyed by employees but not by independent contractors: workers’ compensation.

    In summary, a “common repercussion of fissured workplace business models," the authors posit, is “that they release the organizations that most directly benefit from contracted work from obligations to follow standard employment and labor laws.  In other words, many businesses now treat workers like employees (specifying behaviors and then closely monitoring outcomes) but classify workers as independent contractors (engaging them at an arms-length and depriving them of the rights and benefits tied to employment).”   Indeed, as in the original Weil book, the authors depict the fissured workplace as a hazard for workers, who have lost, or stand to lose, critical rights, social insurance protections, and other benefits which have, by tradition, been tied to employment.

     The authors also make a simple, critical point which is sometimes forgotten: “Independent contractors are no longer primarily entrepreneurs with skills and bargaining power who do not need significant legal protections; instead, they are often the most vulnerable and underpaid workers.”

    The authors’ employment-and-rights reconceptualization, analyzed for the most part on a philosophical level, advocates for rights being tied not to employment (and its century-old, but inapposite, “control” criterion) but, instead, to work

    They reject, notably, the idea that a third category of worker, lying somewhere between employee and independent contractor (the “dependent contractor”) should be created.  They assert that such a designation could further erode labor standards and would be a step in the wrong direction.  They state, among other things, that categorizing rideshare drivers in such a manner “would only decrease their rights, including rights to a minimum wage and access to workers’ compensation.”

    Instead, they say, rights and benefits tied to work should be analyzed in three categories, which they depict as “a concentric circle framework of rights, protections, and responsibility at the workplace.”

    The first, and most inner, circle, possesses the greatest breadth, and constitutes rights that all workers should possess, regardless of how, in the past, they might have been categorized. “The Inner Circle,” they explain, “includes prohibitions on discrimination and retaliation; affirmative rights to work in a safe and healthy environment; requirements that work be appropriately compensated; and freedom of association and the right to engage in acts for mutual aid and protection.”

    The second, or middle, circle of rights, protections, and responsibilities “are those already linked to employment status, but with a presumption and test that enhance those protections.  These include, for example, the right to overtime under the FLSA, the right to organize and be represented through collective bargaining under the NLRA, and safety net protections including access to workers’ compensation and unemployment insurance.”  

    The third, outer, circle “would include a set of rights, protections and responsibilities that workplace policies incentivize but that employers are not legally required to provide to legitimate independent contractors.  In particular, it would include two social safety net benefits: workers’ compensation and unemployment insurance.  The Outer Circle would also include access to currently non-mandatory benefits such as paid family and medical leave, retirement savings, and training and skill development funds for both employees and independent contractors.”

    The authors’ advocacy is mostly compelling to this writer, though the current political scene and the weakness of worker interests do not favor this framework prevailing anytime soon.  Still, the authors point out that, historically, with a number of enactments, Congress and other lawmakers have in fact shown themselves capable of enacting broad, and needed, employment protections.

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