Digit Debates: Decoding employment status
3 February 2021
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There is much at stake in the classification of work relations: on the one hand, the stability of the tax base and the capacity of the state to deliver public goods; on the other, the structure of enterprise and the rights of workers in the ‘gig’ economy and beyond. Classification decisions, however, are made using legal concepts which many view as artificial and manipulable, to the point where it is hard to discern the considerations which are actually guiding decisions. Decomposing the ‘employment’ concept reveals something of the implicit ‘weighting’ of tests and indicators which underlies judicial and administrative determinations. Viewed in this light, statutory reformulations such as the Californian Supreme Court’s ‘ABC’ test can play a role in ‘reweighting’ the classification process, extending the protective coverage of labour laws and resisting fiscal erosion. The recent overturning of this test via Proposition 22, following $200 million of campaign funding from Uber and Lyft, reaffirms the point that legal classifications are not neutral categories.
Simon Deakin is Professor of Law and Director of the Centre for Business Research at Cambridge University. His books include The Law of the Labour Market (2005, with Frank Wilkinson) and Is Law Computable? Critical Perspectives on Law and Artificial Intelligence (2020, ed. with Christopher Markou). He is editor of the Industrial Law Journal and an editorial board member of the Cambridge Journal of Economics.
Deakin, S. (2020) ‘Decoding Employment Status’ King’s Law Journal, 31:2, 180-193.
Simon Deakin and Christopher Markou (Editors) (2020) ‘Is Law Computable? Critical Perspectives on Law and Artificial Intelligence’.