The Slipperiness of Stability: Contracting for Flexible and Triangular Employment Relationships in the New Economy

Abstract

This Article argues for the need for new laws and adequate guidelines for today's flexible staffing arrangements. Flexible employment arrangements in the new market are simultaneously efficiency-driven and developed through continuous political and legal action. While the employment agency industry is potentially a welfare-enhancing sector in certain environments, it also produces new forms of mistreatment of workers in the absence of adequate regulatory incentives. These new economic structures necessitate the development of a new normative model that allows certain forms of market flexibility yet maintains the social norms that continue to inform fair employment policies. Part II of this Article explores the range of taxonomies and categories that have developed in the flexible staffing industry. This Article sets forth the argument that the complexity and variety that characterize the industry is not accidental, but a product of legal and economic struggles for recognition of flexible employment arrangements as legitimate practices in the new economy. Part III further describes the various factors that motivate the emergence of flexible employment from the perspective of employers and workers. These factors include both legitimate economic needs and problematic attempts to evade legal protections. Part IV then moves to a third set of factors that motivate flexible staffing arrangements-those of the flourishing employment agency industry. This Part further describes the public efforts of the staffing industry to legitimize its status in the triangular employment context, including the advocacy, lobbying, and public relations efforts by its trade associations. Part V is an analysis of the recent efforts by courts, administrative agencies, and legislative commissions to define the legal parameters of the various new flexible employment arrangements. Drawing on comparative insights, as well as the problems and inconsistencies among recent cases, Part V demonstrates the inadequacies of the existing common law doctrine in addressing these new challenges and suggests alternative doctrines and policies that would be better suited to achieve the necessary balance between flexibility and fairness.