Abstract

http://ssrn.com/abstract=2047484
 


 



Employees, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland between an Employer-and-Employee Relationship


Mitchell H. Rubinstein


New York Law School; Rutgers University School of Management and Labor Relations

April 20, 2012

14 U. Pa. J. Bus. L. 605 (2012) (lead article).
NYLS Legal Studies Research Paper No. 12/13 #40

Abstract:     
In most cases, coverage under our nation’s employment laws boils down to the question of whether or not the individuals in question are “employees” and whether or not the entity in question is an “employer.” Significantly, however, in a growing number of cases, where employer status is found in the absence of a direct relationship to a statutory employer. This Article refers to these entities as quasi-employers because they are not employers in the traditional sense, yet they are subject to the dictates of employment law legislation.

This Article reviews the following theories of quasi-employer responsibility: the Sibley Interference Theory, the Spirt Delegation Theory, the Joint Employer Theory, and the Single Employer Theory. This Article also reviews the issue of individual supervisory liability as employers under the major employment statutes. Individuals are not normally thought of as employers, but they sometimes have a great deal of influence over the terms and conditions of employees’ employment. Therefore, this Article considers them to be a type of quasi-employer.

To analyze the definitional status of employers and quasi-employers, it is necessary to examine the definitional status of employees. Significantly, however, the legal definition of employee is in a complete state of disarray. Therefore, it should come as no surprise that the definition of employer is also often unclear. Nevertheless, a significant body of law supports treating quasi-employers as employers. Unfortunately, there has not been much scholarship focusing on employer status and virtually no academic commentary on the status of quasi-employers.

As with employee status: a clear definition of employer is necessary so that both employees and employers know what their rights and responsibilities are. The consequences of not knowing who one's employer is can be fatal to any litigation. It is also important to outline clear criteria because future generations will be looking to established case law to determine employer status in work environments that may look very different from today’s work environments.

This Article seeks to bringing about certainty to, in Justice Rutledge’s words, “the borderland” between what is an employer-employee relationship and what is not.

Number of Pages in PDF File: 56

Keywords: Employee, Employer, Labor Law, Employment Law, Labor and Employment Law

JEL Classification: J00, J29, J20, J30, J38, J39, J50, J51, J52, J53, J54, J55, J56, J57, J58, J59, J60

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Date posted: May 7, 2012  

Suggested Citation

Rubinstein, Mitchell H., Employees, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland between an Employer-and-Employee Relationship (April 20, 2012). 14 U. Pa. J. Bus. L. 605 (2012) (lead article).; NYLS Legal Studies Research Paper No. 12/13 #40. Available at SSRN: http://ssrn.com/abstract=2047484

Contact Information

Mitchell H. Rubinstein (Contact Author)
New York Law School ( email )
52 Broadway, 9th Floor
New York, NY 10004
United States
212-533-6300 (Phone)
212-995-2347 (Fax)
HOME PAGE: http://lawprofessors.typepad.com/adjunctprofs/
Rutgers University School of Management and Labor Relations ( email )
New Brunswick, NJ
United States
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