Who’s Responsible Here? Establishing Legal Responsibility in the Fissured Workplace

By Tanya Goldman and David Weil 
Institute for New Economic Thinking

March, 2020

This article proposes a new “Concentric Circle framework” which would improve workers’ access to civil, labor, and employment rights.

The nature of work is changing, with workers enduring increasingly precarious working conditions without any safety net. In response, this Article proposes a new “Concentric Circle framework” which would improve workers’ access to civil, labor, and employment rights.

Many businesses, including app-based platforms, have restructured toward “fissured workplace” business models. They treat workers like employees (specifying behaviors and closely monitoring outcomes) but they classify workers as independent contractors (engaging them at an arms-length and cutting them off from rights and benefits tied to employment). These arrangements confound legal classifications of “employment” and expose deficiencies with existing workplace protections, which are based on “employment relationships.” As a result, a growing number of workers lack both bargaining power and critical workpalce rights and benefits.

We propose a Concentric Circle framework to better govern workers’ rights in the modern era. At the core, we maintain that certain rights and protections should not be tethered to an employment relationship, but to work itself. Thus, the right to be compensated for work and paid a minimum wage; freedom from discrimination and retaliation; access to a safe working environment, and the right to associate and engage in concerted activity should belong to all workers, not just employees. Second, as a middle circle, we argue for a rebuttable presumption of employment to address those rights that remain exclusive to employees (and not independent contractors), and we propose an updated legal test of employment. Finally, at the outer ring of the framework, we suggest policies that could enhance workers’ access to benefits that promote worker mobility and social welfare.

Other scholarship has focused exclusively on either independent contractors or employees, or it has proposed a new category of worker altogether. We contend that this comprehensive framework better assigns rights, responsibilities, and protections in the modern workplace than do current legal doctrines or alternative proposals.

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David Weil is Dean and Professor at Brandeis University’s Heller School of Social Policy and Management. He served as US Wage and Hour Administrator at the Department of Labor during the last three years of the Obama administration. He is a leading international expert on workplace and labor market policy and was the Peter and Deborah Wexler Professor of Management at Boston University’s Questrom School of Business before coming to Brandeis. The materials on this site arise from analysis contained in The Fissured Workplace and a growing body of research regarding the fundamental restructuring of employment and its impacts on workers and businesses. It also discusses approaches to dealing with the fissured workplace developed during the Obama administration as well as new ideas and efforts being discussed and undertaken today. 


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