The Future of Workplace Regulation

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Scholars debate the current and future regulatory landscape for workers.

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Workers today face a rapidly evolving workplace. The gig economy has shaken up expectations about what being an employee or independent contractor means. Unionization rates continue to decline, but organizers have looked for alternative ways to engage workers. Recent U.S. Supreme Court cases have primarily upheld arbitration agreements covering workers, with a few exceptions.

Federal and state regulators have struggled to keep up with these trends, resulting in a wide variety of workplace laws around the country. Some states have raised the minimum wage and given workers paid family leave, while others have enacted right-to-work laws.

This series of essays addresses some of the many changes facing workers. Experts in labor and employment regulation focus on critical questions for the future: Who should be considered an employee or an independent contractor? How will automation affect workers? Should states or the federal government act to regulate employers?

The contributors to this series are: Sean Burke, an associate general counsel at the University of Pennsylvania; Deepa Das Acevedo, a professor at the Hugh F. Culverhouse, Jr. School of Law at the University of Alabama; Cynthia Estlund, a professor at the New York University School of Law; Najah A. Farley, an attorney at the National Employment Law Project; Gregory F. Jacob, a partner at O’Melveny & Myers LLP; Alexander Kondo, an attorney at the U.S. Department of Labor; Raymond J. LaJeunesse, Jr., vice president of the National Right to Work Legal Defense Foundation; Moshe Z. Marvit, a fellow at The Century Foundation; Abraham Singer, an assistant professor at the Quinlan School of Business at Loyola University Chicago; and David Weil, dean of the Heller School for Social Policy and Management at Brandeis University.

Ratcheting Up Workplace Protection

April 1, 2019 | David Weil, Brandeis University

Advocates for instituting progressive economic policies face an uphill battle, particularly in an age of wide and growing inequality. Yet the ratcheting dynamic between state and federal law provides an important caveat to pessimism about the inexorable forces of political economy and can help guide a progressive approach to improving workplace conditions.

The Joint-Employment Standard in Limbo

April 2, 2019 | Moshe Z. Marvit, The Century Foundation

One of the biggest issues in labor law over the past few years has involved a deceptively simple and fundamental concept: the definition of an employer. The question of when a putative employer is categorized as a joint employer can make all the difference and will now likely end up before the U.S. Supreme Court.

Labor without Employment

April 3, 2019 | Alexander Kondo, U.S. Department of Labor, and Abraham Singer, Loyola University Chicago

Better concepts are needed to talk about gig economy workers and other laborers who are subject to the arbitrary domination of powerful companies but who do not fit neatly into traditional understandings of employees. We suggest a new approach for characterizing this kind of work, which we call “labor without employment.”

Regulating Non-Compete Agreements

April 4, 2019 | Najah A. Farley, National Employment Law Project

Non-compete agreements diminish a worker’s power to change jobs and bargain for higher wages by stopping workers from moving between jobs. This phenomenon is especially prevalent in low-wage and minimum-wage industries, but change is on the horizon at the state level.

The Future Looks Bright for the Right-to-Work Movement

April 5, 2019 | Raymond J. LaJeunesse, Jr., National Right to Work Legal Defense Foundation

Some federal and state labor laws in this country have long authorized requirements that workers pay union dues as a condition of employment. Increasingly, however, legislatures and courts are recognizing that workers have a constitutional right to work without being forced to subsidize a union.

Regulating Work in an Age of Fissuring and Automation

April 8, 2019 | Cynthia Estlund, New York University

The rise of both fissuring and automation imperils the stability of employment as a platform for delivering a range of basic social entitlements, and points toward shifting the locus of some of those entitlements, as well as their costs, off employment and onto a broader and more redistributive revenue base.

Who Are Gig Economy Workers?

April 9, 2019 | Deepa Das Acevedo, University of Alabama

The gig economy continues to confound courts and workers alike, but most of the characteristics of gig work that are supposed to make it unique, and therefore a bad fit for current employment laws, have easy, and easily regulated, analogies.

Is the Fiduciary Rule Dead?

April 10, 2019 | Gregory F. Jacob, O’Melveny & Myers LLP

It remains unclear who the Labor Department considers to be an investment advice fiduciary following a court decision to vacate the Fiduciary Rule. The fact that the regulated community is left to speculate a full year after the decision, however, raises questions about the status of the rule and whether the Department must repeal it through rulemaking?

Conflicting Interpretations of Worker Classification

April 11, 2019 | Sean Burke, University of Pennsylvania

Can one person work as an employee and independent contractor at the same time? In many jurisdictions today they can. These conflicting outcomes plainly makes no sense, either as a matter of logic or for the sake of justice and efficiency.