Participation as a Theory of Employment
Matthew T. Bodie
Saint Louis University School of Law
April 17, 2013
Notre Dame Law Review, Vol. 89, 2013
Saint Louis U. Legal Studies Research Paper No. 2013-20
The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition of “employee” since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participation in a team production process. This Article uses the theory of the firm literature to provide a new doctrinal definition for “employee” based on the concept of participation rather than control. The participation test better delineates the boundaries of employment and provides a framework for addressing the stresses on firms and workers that are rife within the modern economy.
Number of Pages in PDF File: 53
Keywords: theory of the firm, employee, employment, participation
JEL Classification: J5, K31, L22, M55
Date posted: April 18, 2013 ; Last revised: June 13, 2013
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