The Reports of My Death are Greatly Exaggerated: Employee as a Viable (Though Overly-Used) Legal Concept
17 Pages Posted: 18 Aug 2005
Date Written: May 2005
In recent year, scholars have raised a number of arguments in opposition to the continued use of the employee/independent contractor distinction (and the concept of employee) in law. Four arguments merit attention: that the concept of employee serves to exclude some people who are not employees neither independent contractors; that basic assumptions at the heart of the distinction concerning inequality of bargaining power are no longer valid, if they ever have been; that the concept of employee is vague and indefinable; and that the classification into groups of workers is too rigid and should give way to context-specific determinations of the scope of each regulation. The purpose of this article is to examine the merits of these four arguments. It will be shown that none of them can justify abandoning the concept. At the same time, they all provide important and useful insights on the way this concept should be practically used.
Keywords: Employee, independent contractor, employer-employee relationship, inequality of bargaining power, atypical work relations, legal concepts
Suggested Citation: Suggested Citation