The Subjects of Labor Law: 'Employees' and Other Workers

Forthcoming in RESEARCH HANDBOOK IN COMPARATIVE LABOR LAW (Matthew Finkin & Guy Mundlak Eds., Edward Elgar 2015)

Hebrew University of Jerusalem Legal Research Paper No. 15-15

20 Pages Posted: 10 Feb 2015 Last revised: 3 Sep 2015

See all articles by Guy Davidov

Guy Davidov

Hebrew University of Jerusalem - Faculty of Law

Mark R. Freedland

University of Oxford - Faculty of Law

Nicola Countouris

University College London - Faculty of Laws

Date Written: May 1, 2013

Abstract

Who is an employee? Which workers ought to be covered by the protective panoply offered by labor law? These are questions with a long history. In the current contribution we consider them from a comparative perspective. Our aim is to highlight similarities and differences between different legal systems. This cross-national analysis can in turn assist the national analyses. Understanding how others have been approaching the same problem can help us better understand our own legal system, including in terms of its historical development and in identifying shortcoming, inconsistencies and hidden assumptions. Understanding to what extent the problem and solutions are universal can also assist us in identifying the normative foundations behind the law.

We start with a brief overview of the tests used in different countries to decide if one is an employee (and covered by labor law), showing some points of diversity but for the most part significant similarities, with a trend towards greater convergence. We then turn to examine some relatively recent developments in different legal systems through three prisms. First we discuss the response in different countries to employers’ evasion attempts. We show how in some systems courts and legislatures remain inactive in the face of evasion, and the stagnation of the law leaves room to massive misclassification of employees as independent contractors. In other countries, on the other hand, creative solutions have been used to contain or minimize this problem. Next we consider the dialogue between the judiciary and the legislature in determining who is an employee. We show how in some countries, judicial approaches to the problem have triggered a legislative response, while in others the legislature remains silent, possibly to signal approval or simply out of disinterest. Finally, we examine the breaking of the binary divide between employees and independent contractors. We show that a third (intermediate) category has been added in an increasing number of countries, as a response to similar problems in classifying workers who share only some of the characteristics of employees. In the conclusion we return to reflect on the issues of diversity vs. convergence, in light of the developments discussed in the previous parts.

Keywords: employees, independent contractors, workers, dependent contractors, labour law, employment law

Suggested Citation

Davidov, Guy and Freedland, Mark R. and Countouris, Nicola, The Subjects of Labor Law: 'Employees' and Other Workers (May 1, 2013). Forthcoming in RESEARCH HANDBOOK IN COMPARATIVE LABOR LAW (Matthew Finkin & Guy Mundlak Eds., Edward Elgar 2015); Hebrew University of Jerusalem Legal Research Paper No. 15-15. Available at SSRN: https://ssrn.com/abstract=2561752

Guy Davidov (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mt. Scopus
Jerusalem, 91905
Israel

Mark R. Freedland

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

Nicola Countouris

University College London - Faculty of Laws ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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