From Amazon to Uber: Defining Employment in the Modern Economy

Professor Keith Cunningham-Parmeter at Willamette University College of Law has written From Amazon to Uber: Defining Employment in the Modern Economy. This is a much-needed exploration of how courts might look at the realities of the workplace today to determine whether specific types of workers are entitled to overtime, to antidiscrimination protections, to union rights, and to other workplace laws. In the end, he seems to think it's all about control. And he has some creative ways to look at the issue of control. Here's the abstract from the article:

American companies increasingly hire workers without offering them formal employment. Because nearly all workplace protections apply only to “employers” and “employees,” businesses avoid these labels by delegating their employment responsibilities to workers and intermediaries. For example, Amazon hires third-party contractors to staff its distribution centers and Uber invites only independent contractors to join its platform. As nonemployees, these workers cannot enforce such basic workplace rights as overtime and antidiscrimination protections.

Assessing the growing asymmetry between workers and firms, this Article critically evaluates what it means to employ workers today. Many companies disclaim their status as employers by claiming that they do not exercise daily, direct control over workers. But such a binary approach to control unnecessarily constrains the meaning of employment. In fact, employment status has never depended on whether firms control the minutia of workplace details. Rather, businesses today become employers when they meaningfully influence working conditions, even if layers of contractual relationships obscure that power.

Proposing a model for delineating the reach of employment law, this Article calls upon courts to assess three specific aspects of workplace control: the subjects of control, direction of control, and obligations of control. From peer-to-peer platforms that hire independent contractors to more traditional businesses that retain workers through intermediaries, companies that deny their status as employers may still effectively control the manner and means of work. Whether it is Amazon setting its contractors’ pay scale, FedEx specifying the color of its drivers’ socks, or Uber telling its drivers to play soft jazz, firms that control contractual outcomes frequently control working conditions as well. By analyzing these diverse permutations of control, this Article provides a framework for defining employer-employee relationships in contemporary workplace settings.

HT: Workplace Prof Blog.

(Un)Equal Protection: Why Gender Equality Depends on Discrimination

I just read a wonderful article: (Un)Equal Protection: Why Gender Equality Depends on Discrimination,  by Willamette Law Professor Keith Cunningham-Parmeter. The key to the piece is advocacy for "fatherhood bonuses" -- laws that give families additional parental leave when fathers stay at home with their newborns. The basic idea is that laws that may on their face appear to favor men actually are beneficial to women as well.

Professor Cunningham-Parmeter points out that in countries where such fatherhood bonuses exist, women with children spend more time at paid work, advance in their careers, and get higher wages. Well, of course they do.

The article spends plenty of time and creativity chewing on US Supreme Court decisions with the goal of persuading us that fatherhood bonuses would not be unconstitutional. I'm persuaded.

The big deal is in the last few pages, where we are told how such fatherhood bonuses could be crafted so as to satisfy (or at least mollify) various constituencies.

The take-away quote from the article: "The masculine norm that directs men to avoid domestic work causes a large number of women to assume a disproportionate share of that work."

Movie review: Leviathan

★★★★★

I can see why this elegant film won the Golden Globes award for best foreign language film, and a host of other awards for cinematography, director, actor, actress. Although the Russian Ministry of Culture partially funded it, the Minister says he doesn't like it. Hard to imagine any Putin-appointed official saying otherwise.

Set on the edge of the spectacularly beautiful Barents Sea, in and near a not-so-charming fishing village that features elegant government buildings and rundown Soviet style apartment buildings.

Kolya runs an auto repair shop next to his ancestral home on the edge of the sea. His teen son is typically rebellious and makes it clear that Kolya's wife - Lilya - is not his mother. The wife cleans fish at the fish factory, and seems somewhat distant from Kolya and the boy.

The well-fed and fabulously corrupt mayor - who rules with a stereotypical combination of Russian law and raw thuggery - has brought condemnation proceedings against Kolya's property so the city can build one more government palace. Kolya's old army buddy, now a slick Moscow lawyer, arrives just before the mayor-dominated court reads out the decree that will take away everything Kolya owns.

The lawyer understands both law and blackmail, and has arrived with a damning dossier of dirt on the mayor. The mayor also knows more than law, and rallies both city employees and loyal thugs to his cause.

The lawyer and Lilya are attracted to each other, and we are aware of an off-screen scene in which Kolya catches them in the act. Kolya threatens to kill them both. Still, everyone tries to keep themselves in their life roles, and the strain is palpable.

Kolya and his pals are determined to drink up all the vodka in Russia while using photos of former Soviet leaders for target practice. Orthodox priests dispense advice on truth, God's will, and the moral of the Book of Job. The courts dispense mechanical justice. The cops live on bribes. The mayor's trophy wife has the only fur coat in town. Whales play in the sea.

The mayor's hooligans beat up the lawyer, and he scoots back to Moscow. Lilya thinks about joining him, but stays with Kolya. She wants a baby with him, yet he is strangely silent.

Closing scenes: Lilya stands on a cliff, watching a whale. Lilya's body washes up on shore. The local prosecutor charges Kolya with murder. Lilya's best friend takes the son under her wing. A Swedish backhoe moves in on Kolya's house.

Russian with English subtitles.

2013-2014 Labor & Employment Supreme Court Review

Professor Jeffrey M. Hirsch (University of North Carolina School of Law) has written an interesting piece reviewing the US Supreme Court's 2013-2014 labor and employment law decisions. The Supreme Court's 2013-2014 Labor and Employment Law Decisions: Consensus at the Court

Abstract: "This Article is a review of the Supreme Court's 2013-2014 labor and employment law decisions. Among the cases discussed are Harris v. Quinn, Lane v. Franks, Lawson v. FMR, Fifth Third Bancorp v. Dudenhoeffer, Heimeshoff v. Hartford Life & Accident Insurance Co., Sandifer v. United States Steel Corp., NLRB v. Noel Canning, and Burwell v. Hobby Lobby Stores. The Article notes the relative lack of sharp divisions among the Justices -- a result that appears to largely be the result of a less controversial labor and employment docket. However, as some of even this year's decisions show, sharp divisions on the Court still exist, and we're likely to see a return to the usual ideological decisions in later terms."

Definitely worth reading.