The Problem of 'Misclassification' or How to Define Who is an 'Employee' Under Protective Legislation in the Information Age

K. Dau-Schmidt
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引用次数: 4

Abstract

The problem of determining who is an “employee” under various protective statutes is foundational to the practice of labor and employment law. Any failures of individual bargaining in the employment relationship can only be remedied through collective bargaining or worker protective legislation, both of which require determining which workers are “employees” covered by the statutory system of collective bargaining or eligible for the benefits of the protective legislation. Because the statutory definitions of who is a covered employee are commonly very general and self-referential, the courts have adopted a series of legal tests to provide structure for arguments as to which employees are covered. The tests include the “rightto-control test,” the “economic realities test,” hybrid tests, and more recently, at legislative direction, the “ABC test.” The classification of some workers as covered “employees” and others as non-covered workers, most often “independent contractors,” has been an important issue in labor and employment law for as long as there has been protective legislation only covering “employees”. Employers have incentive to misclassify their workers as independent contractors, in an effort to avoid the costs of the protective legislation, or to formulate their business in a way that enables them to use independent contractors rather than employees to minimize regulatory costs. This last strategy is known in the academic literature as “regulatory arbitrage” because the employer constructs his or her business model so as to end up in a cheaper regulatory regime. The problems of misclassification and regulatory arbitrage to avoid protective legislation have intensified as information technology has allowed increased subcontracting and the development of business models in the sharing economy that pose serious puzzles under the traditional tests of the employment relationship. In this chapter I present a brief overview of the “misclassification problem;” the problem of distinguishing covered employees from independent contractors in the information age. I begin with a general exposition of the problem, including an outline and discussion of the traditional tests of who is an employee under American labor and employment law. I then discuss the problem in light of the recent developments of the information age, the growth of subcontracting and outsourcing and the development of new business models utilizing internet platforms that allow online matching of service consumers with workers for “work on demand,” and the performance of contracted work through “crowd-sourcing.” Finally, I discuss the various reforms that people have suggested to address the problem of determining when workers are covered by protective legislation in the information age so as to provide predictability and minimize the problems of misclassification and regulatory arbitrage. In particular, I discuss recent legislative developments and proposals to include “dependent contractors” and “independent workers” among covered workers. I also discuss my own proposal that we abandon outmoded legal definitions of who is an “employee” and who is an “independent contractor” and instead adopt two unifying principles for defining coverage under protective legislation: first, the avoidance of regulatory arbitrage so that decisions on the organization of production are made on the basis of real economic advantages rather than just on the basis of avoiding legislative responsibility; and second, the assignment of responsibility for the provision of benefits under protective legislation to the cheapest cost avoider so as to minimize the burden of fulfilling the promises of protective legislation.
信息时代保护立法下的“误分类”问题或如何界定“雇员”
在各种保护性法规下确定谁是“雇员”的问题是劳动和就业法实践的基础。在雇佣关系中个人谈判的任何失败只能通过集体谈判或工人保护立法来补救,这两种方法都需要确定哪些工人是受集体谈判法定制度保护的“雇员”,或有资格享受保护立法的好处。由于关于谁是受保雇员的法定定义通常是非常笼统和自我参照的,法院采用了一系列法律测试,为关于哪些雇员受保提供论据结构。这些测试包括“控制权测试”、“经济现实测试”、混合测试,以及最近在立法指导下的“ABC测试”。将一些工人分类为受保护的“雇员”,而将另一些工人分类为不受保护的工人(通常是“独立承包商”),这一直是劳动和就业法中的一个重要问题,因为保护立法只涉及“雇员”。雇主有动机将他们的工人错误地归类为独立承包商,以努力避免保护性立法的成本,或者以一种使他们能够使用独立承包商而不是雇员的方式来制定业务,以尽量减少监管成本。最后一种策略在学术文献中被称为“监管套利”,因为雇主构建自己的商业模式,最终是为了获得更便宜的监管制度。为了规避保护性立法而进行的错误分类和监管套利问题愈演愈烈,因为信息技术允许更多的分包和共享经济中商业模式的发展,这些模式在雇佣关系的传统测试中构成了严重的难题。在本章中,我简要概述了“错误分类问题”,即在信息时代区分有保险的雇员和独立承包商的问题。我首先对这个问题作了一般性的阐述,包括概述和讨论根据美国劳工和就业法判定谁是雇员的传统标准。然后,我根据信息时代的最新发展、分包和外包的增长以及利用互联网平台的新商业模式的发展来讨论这个问题,这些平台允许服务消费者与工人进行“按需工作”的在线匹配,并通过“众包”来完成承包工作。最后,我讨论了人们建议的各种改革,以解决确定信息时代工人何时受到保护性立法保护的问题,从而提供可预测性,并最大限度地减少错误分类和监管套利的问题。特别是,我讨论了最近的立法发展和建议,包括“依赖承包商”和“独立工人”在覆盖工人。我还讨论了我自己的建议,即我们放弃对谁是“雇员”和谁是“独立承包商”的过时法律定义,而是采用两个统一的原则来定义保护性立法下的覆盖范围:第一,避免监管套利,以便在实际经济优势的基础上做出有关生产组织的决定,而不仅仅是在逃避立法责任的基础上;第二,将保护立法下提供利益的责任分配给成本最低的规避者,以尽量减少履行保护立法承诺的负担。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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