Working Beyond the Reach or Grasp of Employment Law

Abstract

This chapter surveys how low-wage workers fall beyond the reach or grasp of employment law protections. Labor and employment law regulates only specific work arrangements; it does not apply to all firms and all workers. Among those within this reach, many nonetheless slip through the law's grasp because of imperfect enforcement. I provide a framework uniting what often have been distinct inquiries into the challenges to employment law coverage posed by new ways of structuring labor and the limitations of employment law enforcement. Because employers benefit whenever worker protections do not stick, exploiting limitations in coverage or enforcement may be alternative strategies. Moreover, they interact in important ways. Attention to these limits shows employment law to be a partial method of regulating work.

This partiality is being challenged by new legal strategies. Some seek to extend the reach or strengthen the grasp of existing employment law. Others rely less heavily on employer-employee relationships as the foundation of worker protection, turning instead to consumers or the citizenry at large. I argue that these innovations reinforce the idea that employment law is but one institutional approach to worker protection. They also invite critical reflection on and imagination of reform possibilities that share employment law's substantive goals but not its traditional means. Navigating this field of institutional design will require greater clarity about employment law's normative foundations, especially with regard to which workers should receive support or protection, and from whom.

Keywords: Labor and employment law, worker protection, enforcement, low-wage work