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The Hacking of Employment Law

52 Pages Posted: 13 Aug 2017  

Charlotte Alexander

Georgia State University - Risk Management & Insurance Department; Georgia State University College of Law

Elizabeth Chika Tippett

University of Oregon School of Law

Date Written: August 10, 2017

Abstract

Employers can use software in ways that erode employment law, through noncompliance and avoidance.  The software exploits outdated regulations that do not anticipate the scale and precision with which employers can manage and manipulate the work relationship.  Consequently, employers can implement systems that are largely consistent with existing laws, but violate legal rules on the margin.  Employers can also use software to engage in lawful workaround tactics that avoid triggering some or all of the costs of complying with employment law.  However, such tactics can cause harm to workers beyond the loss of the specific workers' rights or protections being avoided.  Avoidance can create new norms about what work looks like that can degrade wages and working conditions across the labor market.  Finally, when employers use software to avoid the employer-employee relationship entirely, employment law itself is weakened, as more workers operate in spaces beyond the law's reach, and employment rights are left only for a privileged few.  The result is a weakened employment law regime, where legal rules struggle to keep up with employers' software-enabled innovations in noncompliance, or are rendered irrelevant as employers innovate in spaces that regulation simply does not reach.  We conclude by suggesting ways that regulators can better adapt to workplaces where employers implement their decisions and define the structure of work through software.

Keywords: cyberlaw, software, employment law, discrimination, wage and hour law

Suggested Citation

Alexander, Charlotte and Tippett, Elizabeth Chika, The Hacking of Employment Law (August 10, 2017). Missouri Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3016624

Charlotte Alexander

Georgia State University - Risk Management & Insurance Department ( email )

35 Broad Street
Room 1142
Atlanta, GA 30303
United States

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

Elizabeth Tippett (Contact Author)

University of Oregon School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States
541-346-8938 (Phone)

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