Despite The Binary: Looking for Power outside the Employee Status

67 Pages Posted: 23 Jun 2020 Last revised: 11 Oct 2021

See all articles by Gali Racabi

Gali Racabi

Cornell University ILR School; Cornell Law School

Date Written: May 29, 2020

Abstract

In both labor law and employment law, worker power is viewed as a binary. Workers are either classified as “employees” who hold labor and employment law’s preferred protections, or they are not. Excluded workers are traditionally perceived as powerless vis-à-vis the firm’s economic and organizational levers of control. This Article challenges this binary understanding of workplace power by demonstrating how excluded workers can access the same types of legal mechanisms of empowerment as employees do and, under certain conditions, better ones. Excluded workers can and do find legal pathways for gaining workplace power.

This Article offers examples of how excluded workers use the law to gain workplace power. The examples are drawn from the struggles of Uber drivers, classified as independent contractors, and of Uber. Through qualitative case studies and analysis of novel legal developments in the regulation of platform companies, the Article demonstrates the gaps that exist in the canonical binary perception. The Article continues by offering a theory of how to fill those gaps by treating the workplace as an arena of group politics in which law plays a crucial role in shaping the available terrain of leverage points and collective capacities of workers. By demonstrating how workers’ power is decoupled from the employee status, this Article offers a novel and more suitable framework in which to analyze the effects of work status on workplace power in the contemporary and future workplace.

Keywords: labor law, employment law, employee status, workplace power

Suggested Citation

Racabi, Gali, Despite The Binary: Looking for Power outside the Employee Status (May 29, 2020). 95 TUL. L. REV. 1167 (2021)., Available at SSRN: https://ssrn.com/abstract=3613652

Gali Racabi (Contact Author)

Cornell University ILR School ( email )

Ithaca, NY 14853-3901
United States

Cornell Law School ( email )

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