ACSBlog

*Read more on this topic in the ACS Issue Brief: Redefining Employment for the Modern Economy

by Brishen Rogers, Associate Professor of Law at Temple University Beasley School of Law

The explosive growth of Uber and other on-demand labor platforms has brought public attention to a longstanding issue facing workers in this country: the fissuring of employment. Fissuring comes in many forms, including misclassification of employees as independent contractors, subcontracting and franchising arrangements.

Such strategies can deprive workers of their rights under our employment laws, most of which define employment per the common law “right to control test.” That definition is narrow, failing to reflect the economic realities of modern work relationships. It is also notoriously difficult to apply in practice, which increases litigation costs and disempowers low-wage workers.

This is not a small problem. Wage and Hour Administrator David Weil estimates that there are “over 29 million workers in just five industries affected …  including in the construction, hospitality, janitorial, personal care and home health care industries.”

Unfortunately, some prominent reform proposals—such as to create a new legal category of worker that would slot between “employee” and “independent contractor,” with limited employment rights—would move us backwards rather than forwards. Ethically speaking, workers in fissured relationships are no less deserving of basic protections than standard employees. Creating a third category of worker would also make employment status litigation even more complicated and more expensive.

In a new issue brief for ACS, I propose an omnibus employment status bill to address such challenges. The central reform would redefine employment under the core federal labor/employment statutes per the broad “suffer or permit” test from the federal Fair Labor Standards Act. In misclassification cases under that test, courts’ and agencies’ task is not to determine whether the putative employer enjoys a right to control the performance of the work, but rather “to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”

by Caroline Fredrickson

Suddenly, in the span of just a few days, three senators broke rank with the 54-member majority who has denied any action on judicial nominations. It is too early to tell if this shift is a sideshow producing headlines in the Salt Lake Tribune and Politico or the beginning of the end of gridlock in the post-election lame duck session of Congress.

Whatever the outcome in the coming weeks, #DoYourJob is not a strong enough hashtag to chronicle the constitutional crisis created by the senate blockade against President Obama’s 110 judicial nominations.  More than 10 percent of the federal bench is vacant. 

To put this number in perspective, compare Obama’s vacancy rate of 10.8 percent with President George W. Bush’s 3.7 percent at this same point in his eighth year.  This is a virtual shutdown of the third branch of government as the second branch denies its constitutional duty to give “advice and consent” on nominees by the first branch. 

Chatter about a constitutional crisis sounds overblown until you recall statements made by Senate Majority Leader Mitch McConnell (R-Ky.) and Sens. Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa) and John McCain (R-Ariz.) regarding Obama’s nominee to the Supreme Court, Chief Judge Merrick Garland.

Remember in February, barely an hour after the death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell stunned many with an historic announcement that the next president should fill the vacancy on the Court. McConnell reasoned that with a possible shift in the ideological bent of the Supreme Court the people should have a voice in the selection of the ninth justice.  This logic ignores the fact that voters do not elect Supreme Court justices.