From Hierarchies to Markets: FedEx Drivers and the Work contract as Institutional Marker

Judges are often called upon today to determine whether certain workers are “employees” or “independent contractors.” The distinction is important, because only employees have rights under most statutes regulating work, including wage and hour, anti-discrimination, and collective bargaining law. Too often judges exclude workers from statutory protection who resemble what legal scholars have described as typical, industrial employees — long-term, full-time workers with set wages and routinized responsibilities within a large firm. To explain how courts reach these counterintuitive results, the article examines recent federal decisions finding that FedEx delivery drivers are independent contractors rather than employees. It argues that the problem is embedded within the employment contract itself, in the law’s attempt to construe the legal relations of master and servant as a contract. The contemporary employment contract is product of a 19th century incorporation of master-servant authority into contracts for labor services. In the face of institutional disruption, the contradiction within employment between contractual equality and servitude tends to surface in the form of two doctrinal ambiguities. Both make the dominant standard for employment status irresolvable by merging contractual formation and performance. First, the attempt to fit master-servant authority in the framework of contract creates an ambiguity between the activities of bargaining over the work and carrying out the work, or between contracting and producing. Second, it makes ambiguous the relationship between a written agreement and contractual duties. The way in which FedEx organized the drivers’ work manipulated these ambiguities, which enabled the courts to maintain that features of the work that ordinarily, and under the governing legal tests, would be evidence of employment were here consistent with, or even evidence of, independent contracting. In fact, the courts transform some of the same vulnerabilities that place the drivers within the policy concerns of collective bargaining and wage and hour law into evidence of their autonomy. The attempt to encase master-servant relations in contract also destabilizes distinctions between firms and markets. The ambiguity in employment between contracting and producing exposes a tension within major economic theories of the firm: employment is the legal rationale for a firm’s centralized control over indirect, hierarchical, and multilateral relations in production; as a contract, however, employment is a direct and bilateral relationship between equal parties in a market. The FedEx decisions marshal this tension to redefine a firm, as conceptualized by major theories of the firm, as a market. Multilateral relations among drivers as they work under FedEx’s direction appear as bilateral contracts between drivers in a decentralized market. The courts conflate the impersonality of bureaucracy — in which work is embedded in sophisticated technology and a supervisory hierarchy — with the impersonality of the market. The drivers’ very fungibility as low-skilled workers performing standardized routines becomes evidence of their entrepreneurial opportunity. The article hypothesizes that the invisibility of logistics and communications technology, relative to the heavy machinery of industrial manufacturing, helped the courts to submerge the FedEx bureaucracy beneath a nexus of contracts. It critiques the decisions for rejecting theories of the firm that ground the legitimacy of the corporation in the efficient production of goods and services. The article concludes with a thought experiment showing how, using the arguments in the FedEx decisions, one could reinterpret assembly line employment as independent contracting

Acute lower limb compartment syndrome after Cesarean section: a case report

Abstract: Introduction Acute compartment syndrome of the lower limb is a rare but severe intra- and post-partum complication. Prompt diagnosis is essential to avoid permanent functional restriction or even the loss of the affected limb. Clinical signs and symptoms might be nonspecific, especially in the early stages; therefore, knowledge of predisposing risk factors can be helpful. Case presentation We present the case of a 32-year-old Caucasian woman with acute post-partum compartment syndrome. Conclusion: Acute compartment syndrome is an important differential diagnosis for the sudden onset of intra- or post-partum lower-limb pain. Predisposing factors for the manifestation of acute compartment syndrome in an obstetric environment are augmented intra-partum blood loss, prolonged hypotensive episodes and the use of oxytocin to support or induce labor because of its vasoconstrictive properties. Treatment is prompt surgical decompression by performing fasciotomy in any affected muscular compartments

The Powerful Role of Unproven Economic Assumptions in Work Law

Many rules and statutory interpretations in US work law that entrench employers’ power over workers rely on unproven economic assumptions. This article explores three. First, courts assume that the individual employee and employer have relatively equal bargaining power, an assumption often framed and defended within the circular logic of “freedom of contract.” Second, courts assume that the employer’s authority over the enterprise—its managerial prerogative—must be near absolute to promote efficiency in the enterprise and economy. Third, courts assume that the costs of maintaining the status quo of managerial prerogative and an employer’s at-will authority are less than the costs of altering it. Courts use these assumptions to give employers broad rights to terminate employees, to impose arbitration agreements, and to limit worker collective rights

The Legal Construction of Employment and the Re-institutionalization of U.S. Class Relations in the Postindustrial Economy

The chapters interrogate the legal reasoning by which U.S. courts and administrative agencies are reconstructing labor-capital work relationships in recent employment status decisions. These decisions determine the legal rights of workers by answering the threshold questions, "who is an employee?" and "who is the employer?" Given an apparent postindustrial re-organization of work, the dissertation examines how "bourgeois" ideology, as a distorted form of reasoning that conceals contradictions of class domination in work relationships, inheres in the legal reasoning of employment status decisions. I argue that the 19th century union of master-servant legal relations with contract embedded within the employment contract a contradiction between servitude and equality. Each chapter examines interpretative problems that the contradiction creates in contemporary employment status disputes. Chapter 2 examines decisions by different partisan blocs of the National Labor Relations Board regarding the employment status of graduate student workers, medical residents, and disabled janitors in sheltered workshops-- workers whose relationships embody the contradictory permeation of wage labor into formerly less commodified relations. I argue that the Republican blocs tended to conceal class domination more so than the Democratic blocs, because they engaged the servitude-equality contradiction to reinterpret relational indicia consistent with employer control over the productive process as a status-like authority in a hierarchical, nonmarket social sphere of sympathetic, personal relations. Chapter 3 identifies upfront contractual specification (UCS) as a source of judicial disagreement in employment status disputes. UCS is the phenomenon of including detailed and comprehensive descriptions of the work to be performed in a written contract. I show that the disagreement is rooted in two doctrinal ambiguities in employment that issue from the servitude-equality contradiction: (a) between "contracting" and "production", and (b) between employer contractual rights and entrepreneurial property rights. Chapter 4 examines decisions on the employment status of FedEx delivery drivers. I show that the judges finding the drivers to be independent contractors rather than employees exploited the servitude-equality ambiguities to redefine control in production as equality in contracting, and to redefine FedEx's contractual authority over work relations as entrepreneurial property rights. They constructed the drivers' "entrepreneurial opportunity" so as to conceal a key feature of employment that differentiates it from other contracts--its one-sided open-endedness. They concealed FedEx's bureaucratic coordination of the work by transforming multilateral relations in production among coworkers into relations of production. By redefining legitimate domination and reproducing legal instability in the employment/non-employment distinction, legal ideology in employment status decisions works to re-institutionalize U.S. class relations in new, historically specific, social forms

ESHRE guideline: endometriosis

Main results and the role of chance: This guideline aims to help clinicians to apply best care for women with endometriosis. Although studies mostly focus on women of reproductive age, the guideline also addresses endometriosis in adolescents and postmenopausal women. The guideline outlines the diagnostic process for endometriosis, which challenges laparoscopy and histology as gold standard diagnostic tests. The options for treatment of endometriosis-associated pain symptoms include analgesics, medical treatments and surgery. Non-pharmacological treatments are also discussed. For management of endometriosis-associated infertility, surgical treatment and/or medically assisted reproduction are feasible. While most of the more recent studies confirm previous ESHRE recommendations, there are five topics in which significant changes to recommendations were required and changes in clinical practice are to be expected. Limitations reasons for caution: The guideline describes different management options but, based on existing evidence, no firm recommendations could be formulated on the most appropriate treatments. Also, for specific clinical issues, such as asymptomatic endometriosis or extrapelvic endometriosis, the evidence is too scarce to make evidence-based recommendations. Wider implications of the findings: The guideline provides clinicians with clear advice on best practice in endometriosis care, based on the best evidence currently available. In addition, a list of research recommendations is provided to stimulate further studies in endometriosis.Study question: How should endometriosis be diagnosed and managed based on the best available evidence from published literature? Summary answer: The current guideline provides 109 recommendations on diagnosis, treatments for pain and infertility, management of disease recurrence, asymptomatic or extrapelvic disease, endometriosis in adolescents and postmenopausal women, prevention and the association with cancer. What is known already: Endometriosis is a chronic condition with a plethora of presentations in terms of not only the occurrence of lesions, but also the presence of signs and symptoms. The most important symptoms include pain and infertility. Study design size duration: The guideline was developed according to the structured methodology for development of ESHRE guidelines. After formulation of key questions by a group of experts, literature searches and assessments were performed. Papers published up to 1 December 2020 and written in English were included in the literature review. Participants/materials setting methods: Based on the collected evidence, recommendations were formulated and discussed within specialist subgroups and then presented to the core guideline development group (GDG) until consensus was reached. A stakeholder review was organized after finalization of the draft. The final version was approved by the GDG and the ESHRE Executive Committee. Summary answer: The current guideline provides 109 recommendations on diagnosis, treatments for pain and infertility, management of disease recurrence, asymptomatic or extrapelvic disease, endometriosis in adolescents and postmenopausal women, prevention and the association with cancer. What is known already: Endometriosis is a chronic condition with a plethora of presentations in terms of not only the occurrence of lesions, but also the presence of signs and symptoms. The most important symptoms include pain and infertility. Study design size duration: The guideline was developed according to the structured methodology for development of ESHRE guidelines. After formulation of key questions by a group of experts, literature searches and assessments were performed. Papers published up to 1 December 2020 and written in English were included in the literature review. Participants/materials setting methods: Based on the collected evidence, recommendations were formulated and discussed within specialist subgroups and then presented to the core guideline development group (GDG) until consensus was reached. A stakeholder review was organized after finalization of the draft. The final version was approved by the GDG and the ESHRE Executive Committee. Main results and the role of chance: This guideline aims to help clinicians to apply best care for women with endometriosis. Although studies mostly focus on women of reproductive age, the guideline also addresses endometriosis in adolescents and postmenopausal women. The guideline outlines the diagnostic process for endometriosis, which challenges laparoscopy and histology as gold standard diagnostic tests. The options for treatment of endometriosis-associated pain symptoms include analgesics, medical treatments and surgery. Non-pharmacological treatments are also discussed. For management of endometriosis-associated infertility, surgical treatment and/or medically assisted reproduction are feasible. While most of the more recent studies confirm previous ESHRE recommendations, there are five topics in which significant changes to recommendations were required and changes in clinical practice are to be expected. Limitations reasons for caution: The guideline describes different management options but, based on existing evidence, no firm recommendations could be formulated on the most appropriate treatments. Also, for specific clinical issues, such as asymptomatic endometriosis or extrapelvic endometriosis, the evidence is too scarce to make evidence-based recommendations. Wider implications of the findings: The guideline provides clinicians with clear advice on best practice in endometriosis care, based on the best evidence currently available. In addition, a list of research recommendations is provided to stimulate further studies in endometriosis. Study funding/competing interests: The guideline was developed and funded by ESHRE, covering expenses associated with the guideline meetings, with the literature searches and with the dissemination of the guideline. The guideline group members did not receive payments. C.M.B. reports grants from Bayer Healthcare and the European Commission; Participation on a Data Safety Monitoring Board or Advisory Board with ObsEva (Data Safety Monitoring Group) and Myovant (Scientific Advisory Group). A.B. reports grants from FEMaLE executive board member and European Commission Horizon 2020 grant; consulting fees from Ethicon Endo Surgery, Medtronic; honoraria for lectures from Ethicon; and support for meeting attendance from Gedeon Richter; A.H. reports grants from MRC, NIHR, CSO, Roche Diagnostics, Astra Zeneca, Ferring; Consulting fees from Roche Diagnostics, Nordic Pharma, Chugai and Benevolent Al Bio Limited all paid to the institution; a pending patent on Serum endometriosis biomarker; he is also Chair of TSC for STOP-OHSS and CERM trials. O.H. reports consulting fees and speaker's fees from Gedeon Richter and Bayer AG; support for attending meetings from Gedeon-Richter, and leadership roles at the Finnish Society for Obstetrics and Gynecology and the Nordic federation of the societies of obstetrics and gynecology. L.K. reports consulting fees from Gedeon Richter, AstraZeneca, Novartis, Dr KADE/Besins, Palleos Healthcare, Roche, Mithra; honoraria for lectures from Gedeon Richter, AstraZeneca, Novartis, Dr KADE/Besins, Palleos Healthcare, Roche, Mithra; support for attending meetings from Gedeon Richter, AstraZeneca, Novartis, Dr KADE/Besins, Palleos Healthcare, Roche, Mithra; he also has a leadership role in the German Society of Gynecological Endocrinology (DGGEF). M.K. reports grants from French Foundation for Medical Research (FRM), Australian Ministry of Health, Medical Research Future Fund and French National Cancer Institute; support for meeting attendance from European Society for Gynaecological Endoscopy (ESGE), European Congress on Endometriosis (EEC) and ESHRE; She is an advisory Board Member, FEMaLe Project (Finding Endometriosis Using Machine Learning), Scientific Committee Chair for the French Foundation for Research on Endometriosis and Scientific Committee Chair for the ComPaRe-Endometriosis cohort. A.N. reports grants from Merck SA and Ferring; speaker fees from Merck SA and Ferring; support for meeting attendance from Merck SA; Participation on a Data Safety Monitoring Board or Advisory Board with Nordic Pharma and Merck SA; she also is a board member of medical advisory board, Endometriosis Society, the Netherlands (patients advocacy group) and an executive board member of the World Endometriosis Society. E.S. reports grants from National Institute for Health Research UK, Rosetrees Trust, Barts and the London Charity; Royalties from De Gruyter (book editor); consulting fees from Hologic; speakers fees from Hologic, Johnson & Johnson, Medtronic, Intuitive, Olympus and Karl Storz; Participation in the Medicines for Women's Health Expert Advisory Group with Medicines and Healthcare Products Regulatory Agency (MHRA); he is also Ambassador for the World Endometriosis Society. C.T. reports grants from Merck SA; Consulting fees from Gedeon Richter, Nordic Pharma and Merck SA; speaker fees from Merck SA, all paid to the institution; and support for meeting attendance from Ferring, Gedeon Richter and Merck SA. The other authors have no conflicts of interest to declar