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.