The Three Axes of Employment Relationships: A Characterization of Workers in Need of Protection
University of Toronto Law Journal, Vol. 52, p. 357, 2002
87 Pages Posted: 14 Jun 2004
The distinction between employees and independent contractors has been described as the "cornerstone" of labour and employment laws, but proves difficult to apply. This article is concerned with the question of who should be considered an "employee" in the context of protective labour and employment laws, i.e. what kinds of workers should be covered by such laws. The basic approach is purposive. It is argued that protective labour and employment laws share a general purpose, which can be used to articulate a general understanding of who should be considered an employee. The employment relationship can be likened to an integration of three axes: organizational, social/psychological and economic. Organizationally, employees are characterized by being subject to a structure of governance with democratic deficits. Socially/ psychologically, the employment relationship is characterized by the dependency of employees on the relationship for the fulfillment of certain social and psychological needs. And economically, employees are characterized by their reliance on the employment relationship, in the sense that they are unable to spread their risks. These Three Axes point to the vulnerabilities that put employees in need of protection and explain their inclusion within the ambit of protective regulations. The article then explores the practical implications of the thesis. At the legislative level, a typology of four categories (employees, dependent contractors, independent employees and independent contractors) is suggested as a tool to refine the scope of protective regulations according to the particular vulnerabilities of different workers. At the interpretive level, the Three Axes are offered as an overarching test, and existing lists of indicia are examined in their light. This general test may need to be adjusted in the context of specific regulations, depending on their more particular goals.
Keywords: Labor law, employment law, employment relationship, employee, independent contractor, dependent contractor
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