Subordinate Or Independent, Status Or Contract, Clarity Or Circularity: British Employment Law, American Implications

Abstract:     
Given the changing nature of the working world, engaging workers cultivates contentious and consequential questions for policy makers, the Inland Revenue, the Internal Revenue Service, corporations and individuals. In Great Britain, as in the United States, the common law seems to make rather fine distinctions which depend heavily on the facts of an individual case.

This article explicates how the common law of Great Britain has grappled with, and continues to wrestle with the distinction between employees and independent contractors. This distinction engenders a circular process that leads to overlapping tests, standards and rules. As a result of this confusion, individuals who should be entitled to employment protection are often at risk of being deprived of such protection. As a clarifying construct, I propose an expansive conception of subordination which suggests that employee subordination should be expanded beyond its recent focus on inequality of economic bargaining to include a concentration on the social and bureaucratic dimension. This conception illuminates both British and American employment law and expands the basis for protection of individuals who are in most need of the possible benefits of employment protection laws. This approach also provides a scaffold for incorporating future developments in the world of work.

JEL Classification: K3, J3

Accepted Paper Series