Guy Davidov

The idea of labour law

This chapter begins by recontextualizing and re-interpreting the dominant story of labour law in order to offer a different account, one that treats labour as a ‘fictive commodity.’ After historicizing labour law’s narrative, the chapter reviews one of the major contemporary contenders to replace it, an account that sees the function of labour law as regulating the labour market. Using this account as a jumping-off point, this chapter develops a reinvigorated conceptual and normative account of labour law, which draw’s upon Amaryta Sen’s conception of capabilities and Elizabeth Anderson’s idea of democratic equality. The ‘new’ account of labour law proposed herein is attentive to feminist concerns about socially necessary, but unpaid, work.

The Subjects of Labor Law: 'Employees' and Other Workers

Who is an employee? Which workers ought to be covered by the protective panoply offered by labor law? These are questions with a long history. In the current contribution we consider them from a comparative perspective. Our aim is to highlight similarities and differences between different legal systems. This cross-national analysis can in turn assist the national analyses. Understanding how others have been approaching the same problem can help us better understand our own legal system, including in terms of its historical development and in identifying shortcoming, inconsistencies and hidden assumptions. Understanding to what extent the problem and solutions are universal can also assist us in identifying the normative foundations behind the law.We start with a brief overview of the tests used in different countries to decide if one is an employee (and covered by labor law), showing some points of diversity but for the most part significant similarities, with a trend towards greater convergence. We then turn to examine some relatively recent developments in different legal systems through three prisms. First we discuss the response in different countries to employers’ evasion attempts. We show how in some systems courts and legislatures remain inactive in the face of evasion, and the stagnation of the law leaves room to massive misclassification of employees as independent contractors. In other countries, on the other hand, creative solutions have been used to contain or minimize this problem. Next we consider the dialogue between the judiciary and the legislature in determining who is an employee. We show how in some countries, judicial approaches to the problem have triggered a legislative response, while in others the legislature remains silent, possibly to signal approval or simply out of disinterest. Finally, we examine the breaking of the binary divide between employees and independent contractors. We show that a third (intermediate) category has been added in an increasing number of countries, as a response to similar problems in classifying workers who share only some of the characteristics of employees. In the conclusion we return to reflect on the issues of diversity vs. convergence, in light of the developments discussed in the previous parts.

The Reports of My Death are Greatly Exaggerated: Employee as a Viable (Though Overly-Used) Legal Concept

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.

Comment on Alan Hyde: The Perils of Economic Justifications for International Labor Standards

This comment questions the relevance of the Stag Hunt model, employed by Alan Hyde in his contribution to this volume, to the context of international labor standards. Despite Hydes insistence to the contrary, it is argued that in some cases child labor could create a comparative advantage to developing countries. This shows the difficulty with Hydes reliance solely on market failures to justify international labor standards. The exclusion of other (non-economic) justifications results in an extremely diluted international labor law.