Orchestrated Experimentalism in the Regulation of Work

Since the advent of the New Deal vision, work and the workplace have undergone dramatic changes. Policies and institutions that were designed to provide good working conditions and voice for workers are no longer fulfilling their promise. In Working in America: A Blueprint for the New Labor Market ( Blueprint ), four MIT economists take on the challenge of envisioning a new regulatory regime that will fit the realities of the new market. The result of several years of deliberation with various groups in business and labor, academia, and government, Blueprint provides a thoughtful yet unsettling vision of the future of work. Part I of this Review describes the inadequacies of current workplace structures and the challenges facing regulators of the new economy. Part II explores the implications of Blueprint for law reform, particularly labor and employment laws, but also other fields of law, including welfare, immigration, and taxation. Part III discusses the problem of the enforcement gap and the prevalence of dominant corporate culture even in situations where legislative reform is made consistent with new workplace realities. Finally, the Review evaluates the core structure of the vision advanced in Blueprint - democratic experimentalism in the field of work. I argue that while Blueprint premises its inquiries upon the promise of the economy as a social institution, its concrete proposals often do not adequately address the core tensions between economic and social interests

The Four Pillars of Work Law

In our contemporary legal landscape, a student wishing to study the law of the workplace has scarce opportunity to encounter an integrated body of scholarship that analyzes the labor market as the subject of government regulation, contractual duties, collective action, and individual rights. Work law developed in the American legal system as a patchwork of common law doctrine, federal and state statutes, and evolving social norms. Typical law school curricula often include courses relating to the four pillars of work law: employment law, labor law, employment discrimination, and some variation of a tax-oriented employee-benefits law. Employment law, in most categorizations, studies the boundaries of the individual employment contract, including contractual limitations, tort liabilities, and minimum protections. Labor law is the subject of collective bargaining between unions and employers, statutorily framed by the National Labor Relations Act ( NLRA ). Employment antidiscrimination law is the subject of status-based unequal treatment in the workplace, including on the basis of gender, race, national origin, disability, or religion. Lastly, the fourth category, employee-benefits law, involves the standards controlling the administration and taxation of social welfare attached to the work cycle, including unemployment benefits, pensions and ERISA, health insurance and COBRA, disability benefits, and worker compensation plans. More than simply substantive divisions, these four categories are also stacked as historical developments in the regulation of work and vary in the public and private mechanisms each undertakes as means for social control. In other words, the subfields of work law correspond with ideas about modes of effective and legitimate social regulation, creating contrived form substance alignments. While some questions have been resolved through legislation, other areas developed through ad hoc adjudication. Similarly, while some areas are federally regulated, other areas are controlled by state law. And while issues such as workplace safety are enforced by a public administrative agency, other issues, such as antidiscrimination claims, are enforced primarily by private litigation. Although the four pillars of work law have developed relatively independently from one another, the realities of contemporary work defy this fragmented structure and its conceptual satellites. The subjects and regulatory tools of all four subfields overlap significantly, and it is increasingly problematic to study them separately. In reality, legal disputes do not originate carrying a tag of one category or another. Workers experiencing dislocation or mistreatment seek assistance that transcends these divides and requires a more expansive outlook

Symposium Keynote: The DTSA and the New Secrecy Ecology

The Defend Trade Secrets Act (“DTSA”), which passed in May 2016, amends the Economic Espionage Act (“EEA”), a 1996 federal statute that criminalizes trade secret misappropriation. The EEA has been amended several times in the past five years to increase penalties for violations and expand the available causes of action, the definition of a trade secret, and the types behaviors that are deemed illegal. The creation of a federal civil cause of action is a further expansion of the secrecy ecology, and the DTSA includes several provisions that broaden the reach of trade secrets and their protection. This article raises questions about the expansive trajectory of trade secret law and its relationship to entrepreneurship, information flow, and job mobility. Lobel argues that an ecosystem that supports innovation must balance secrecy with a culture of openness and exchanges of knowledge

In Memoriam to Professor Fred C. Zacharias

Personal dedication to Prof. Fred Zacharias

The Slipperiness of Stability: Contracting for Flexible and Triangular Employment Relationships in the New Economy

This Article argues for the need for new laws and adequate guidelines for today\u27s flexible staffing arrangements. Flexible employment arrangements in the new market are simultaneously efficiency-driven and developed through continuous political and legal action. While the employment agency industry is potentially a welfare-enhancing sector in certain environments, it also produces new forms of mistreatment of workers in the absence of adequate regulatory incentives. These new economic structures necessitate the development of a new normative model that allows certain forms of market flexibility yet maintains the social norms that continue to inform fair employment policies. Part II of this Article explores the range of taxonomies and categories that have developed in the flexible staffing industry. This Article sets forth the argument that the complexity and variety that characterize the industry is not accidental, but a product of legal and economic struggles for recognition of flexible employment arrangements as legitimate practices in the new economy. Part III further describes the various factors that motivate the emergence of flexible employment from the perspective of employers and workers. These factors include both legitimate economic needs and problematic attempts to evade legal protections. Part IV then moves to a third set of factors that motivate flexible staffing arrangements-those of the flourishing employment agency industry. This Part further describes the public efforts of the staffing industry to legitimize its status in the triangular employment context, including the advocacy, lobbying, and public relations efforts by its trade associations. Part V is an analysis of the recent efforts by courts, administrative agencies, and legislative commissions to define the legal parameters of the various new flexible employment arrangements. Drawing on comparative insights, as well as the problems and inconsistencies among recent cases, Part V demonstrates the inadequacies of the existing common law doctrine in addressing these new challenges and suggests alternative doctrines and policies that would be better suited to achieve the necessary balance between flexibility and fairness

We Are All Gig Workers Now: Online Platforms, Freelancers & the Battles Over Employment Status & Rights During the Covid-19 Pandemic

Since the early days of the Coronavirus pandemic, unemployment rates leapt to the highest they have been since 1975. Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020, a $2 trillion relief package, offering augmented unemployment relief not only to employees but also to the self-employed, including gig workers. The Families First Coronavirus Response Act (FFCRA) was passed to provide sick leave in the form of tax credits that also extended to the self-employed. Beyond the governmental responses, platform companies offered new limited relief to their workers in the form of sick leave, even as they continued to classify them as freelancers. Mass layoffs alongside mass hiring present immense legal challenges even without a health pandemic. The COVID-19 crisis adds the challenges of health and safety, social distancing, risk management, and telecommuting. This Article, written for a symposium on COVID-19 and the Law, examines employment law and employee classification in relation to the contemporary realities of the labor market during the coronavirus pandemic. As business models and market structures are constantly changing and shifting, one thing remains the same: how we classify the work relationship carries enormous weight in determining the rights and duties of market actors. This Article presents the ways the COVID-19 pandemic has exposed the vulnerabilities of gig workers and the irrationalities of rigid classification tests that have always been the Achilles heel of the field of employment and labor law. The Article explores pandemic-related economic benefits that have been extended to freelancers and considers the ways the pandemic reveals the nature—and future—of the gig economy. Part II explains the federal and state efforts to expand unemployment benefits to freelancers. It describes how the CARES and FFCRA Acts have expanded the emergency unemployment benefits, paid sick leave, and family and medical leave available to freelancers, and yet the funding and the operational details of these programs are still contested. Part III describes the continued service of gig workers during the pandemic, especially in the delivery sector, and how classification as freelancers has left many without medical leave rights, health and safety rights, and other protections. Drawing on my recent research, Part IV argues that the fight over employee classification is a red herring, as it misses the point about what public protections ought to be provided to all workers in the labor market. I propose that certain employment and labor protections should be extended to non-employees whether they work on the digital platform or offline in more traditional settings. I further argue that our social welfare system should not be so heavily linked to the labor market

Regulating Coexistence in the New Political-Economy: Cross-Sector Collaboration in a Workforce Development Approach

Private non-profit organizations are increasingly assuming key roles as human service providers within the new political economy. This paper aims to contribute to our understandings of how the participation of nonprofit intermediaries can modify the outcomes of the market and how such participation dynamically relates to policy and regulation. Developing an integrated approach to the question of sectoral difference and cross-sector collaboration, the paper focuses on the challenge of reform and sustainability in a particular social field -- Workforce Development -- situated at the intersection of law, market, and society. In an era of privatization, welfare-to-work reforms, and a devolution revolution, government agencies must often decide whether to support and cooperate with for-profit or nonprofit intermediaries, and how to structure the relations between them. Often, through newly adopted voucher systems, the choice is left to individual consumers to decide between service providers that vary in organizational form. Focusing on the emerging roles of non-profits as they respond to the changing realities of work and service provision, the paper questions conventional assumptions about divisions between sectors. In particular, the paper analyzes a series of quantitative and qualitative studies on differences in performance among publicly funded vocational training providers. By comparing the complex circumstances in which nonprofit initiatives in a mixed industry produce interventionist and redistributional effects with those in which organizational form seems insignificant, the goal is to provide a better normative understanding of the comparative advantage of different organizational forms in changing social contexts.This publication is Hauser Center Working Paper No. 21. The Hauser Center Working Paper Series was launched during the summer of 2000. The Series enables the Hauser Center to share with a broad audience important works-in-progress written by Hauser Center scholars and researchers