The Contracting/Producing Ambiguity and Collapse of the Means/Ends Distinction in Employment

85 Pages Posted: 14 Jul 2014 Last revised: 21 Mar 2015

See all articles by Julia Tomassetti

Julia Tomassetti

City University of Hong Kong School of Law

Date Written: July 13, 2014


The principal source of instability in the employment/non-employment distinction is neither imprecision in the legal tests nor the disjuncture between static legal categories and the changing organization of work away from industrial forms since the 1970s. Rather, it is the contradiction between equality and servitude embedded within the employment contract. The employment contract in the United States is a product of the 19th century incorporation of master-servant status relations into contracts for labor services. The legal rendering of master servant authority as "contract" collapses a fundamental distinction on which contemporary decisionmakers rely to differentiate employment from other work relationships — the distinction between whether the alleged employer has a right to control the "means and manner" of the work — the process, as opposed to only a right to control the "ends" of the work — the product. It creates an ambiguity in employment between contracting (regarding the ends) and production (the means), or between contractual formation and performance.

One manifestation of the collapse of the means/ends distinction due to the contradiction between servitude and equality in employment is judicial discord over the phenomenon of upfront contractual specification (UCS). In several legal disputes over whether certain work relationships are "employment" relationships, the written contract governing the work includes detailed and somewhat comprehensive rules. The alleged employer claims that the contractual rules describe the "results" and not the "work." It may even suggest that the rules are probative of non-employment, because they limit its authority. The workers claim that the contractual rules are an exercise of control over their work, thus demonstrating an employment relationship. The contracting/producing ambiguity poses intractable interpretative problems when evaluating claims of control over the work relationship based on UCS.

The contracting/producing ambiguity is constant and permanent. The distinction between employment and non-employment depends on the institutionalization of employment as a social practice. Legal decisionmakers help to stabilize the distinction by constructing institutional markers that signify employment or non-employment, such as the bureaucratic and temporal markers of industrial work. The article proposes that decisionmakers often construct and interpose the written contract, and practice of signing it, as an institutional referent that signifies non-employment by purporting to separate contracting from producing and to defend a sphere of independence in production.

Keywords: labor and employment law, employment contract, employment status

JEL Classification: K00

Suggested Citation

Tomassetti, Julia, The Contracting/Producing Ambiguity and Collapse of the Means/Ends Distinction in Employment (July 13, 2014). Julia Tomassetti, The Contracting/Producing Ambiguity and Collapse of the Means/Ends Distinction in Employment, 66 S.C. L. REV. 315 (2014), Available at SSRN:

Julia Tomassetti (Contact Author)

City University of Hong Kong School of Law ( email )

6/F Li Dak Sum Yip Yio Chin Building
Kowloon, Kowloon Tong
Hong Kong

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