Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships

Abstract

"Who is a worker?" The answer often determines who receives legal protection or support, and who does not. Disputes over this question animate both feminist scholarship examining nonmarket work and labor law scholarship examining how labor market restructuring challenges legal definitions of employment. This Article brings together these two lines of inquiry. It shows how the legal category of employment relies on distinctions between market and nonmarket work, and does so well beyond the familiar context of family labor.

By examining prison inmates' statutory employment law claims, I identify a previously unrecognized economic dimension to disputes over the employment relationship's scope. This economic dimension is analytically distinct from the traditional control dimension rooted in agency law. Courts often hold that prisoners are not employees because their efforts are not economic in character, even though the work is done for pay. Throughout employment law, similar issues arise about work in welfare, educational, medical, and religious institutions. What unites these disputes over paid nonmarket work is that courts are torn between two rival accounts of what makes employment economic. The more restrictive one requires a market relationship; the more expansive one requires productive work. I show that neither approach is viable.

Understanding employment's economic dimension requires a new approach to employment law. Employment law does not simply identify and regulate a relationship that exists independently in society. Instead, employment law helps to constitute employment as an economic relationship, to promote its coherence, its distinctiveness, and its location in the market economy. Employment law fosters the very divide between economic and noneconomic relationships to which it purports to respond.

Keywords: employment law, prison labor, paid nonmarket work, workfare, rehabilitation, student labor