Rethinking Labor Law: Employment Protection for Boundaryless Workers

Abstract

In the United States, the labor and employment laws were built on the assumption that workers had career-long, stable relationships with their employers. Now the workplace is changing. New ideas about how to organize work have generated new flexible work practices that are proliferating throughout American enterprises and disrupting long-term employment relationships. There has been an explosion in the use of atypical workers such as temporary workers, leased workers, and independent contractors. Furthermore, regular full-time employment no longer carries the presumption of a long-term attachment between an employee and a single firm and orderly promotion patterns and upwardly rising wage patterns. Today, employees now expect to change jobs frequently and firms expect a regular amount of churning in their workforces. Indeed, the very concept of the workplace as a 'place', and the concept of employment as involving an 'employer', are becoming out-dated.

As a result of the transformation of work, the current regulatory regime is seriously out of alignment with the reality of today's workplace. In the United States, the labor and employment laws are for regular workers - those with long term, steady jobs with steady employers. The labor and employment laws give regular workers a right to unionize and bargain collectively, social insurance against unemployment and workplace injuries, a minimum wage guarantee, and health and safety protection. Atypical workers - those lacking a long-term relationship with a particular employer - are usually not eligible for those employment rights. Yet in the labor market today, all workers are becoming atypical. Soon the atypical workers will be typical and the only really atypical ones will be those we today consider typical. In light of the transformation of work, it is necessary to rethink the nature of employment regulation at a fundamental level. The task for labor law scholars today is to describe the current workplace, identify the problems and vulnerabilities it creates, and devise solutions that provide workers with support structures so that they can weather career transitions and thrive in the new boundaryless workplace.

Keywords: transformation of work place, labor and employment laws

JEL Classification: J20