Documents Lobel, Orly 2 results

"Pressures to redesign public policies in ways that account for more flexibility, responsiveness, and private participation present an opportunity to revisit law's traditional emphasis on adversarialism. Rather than aligning legality with conflict and informality with cooperation, a new concept of administrative governance expands the framework of the legal process. In the context of workplace regulation, new governance structures must reflect the conditions of the new economy and the relationships between employers and workers. Studying the field of occupational safety, the article advances three arguments. First, the introduction of third-way governance-based approaches, including regulatory requirements on internal safety planning and worker participation at the individual firm-level, complementing regulatory and market approaches, is necessary for occupational risk prevention. Second, normative and methodological principles can be developed to evaluate the consequences and legitimacy of shifts away from the command-and-control approach to occupational safety, and in particular, to distinguish new governance approaches from deregulation. Third, the article argues that central doctrines of administrative procedure and labor law have served as impediments for diversifying state action in regulating the new labor market. In particular, two key reforms - combining targeted enforcement with a cooperative choice and mandating employee safety committees - were abandoned following legal disputes and the use of categories which rely on an adversarial understanding of legal action. A set of understandings, embedded in legal doctrine from former eras, continues to impede the shift to a more comprehensive, effective, and legitimate worker safety regime. The distinction in the Administrative Procedure Act (APA) between substantive rule-making and procedural policy-making and the distinction of the National Labor Relations Act (NLRA) between bargainable issues and managerial prerogatives have limited the legal reach of workplace governance. Both policy areas are based on concepts of hierarchy, autonomy, control, conflict, and adversarial one-shot interactions."

"Since the early days of the Coronavirus pandemic, unemployment rates leapt to the highest they have been since 1975. Congress passed the CARES Act in March 2020, a $2 trillion relief package, offering augmented unemployment relief not only to employees but also to the self-employed, including gig workers. The Families First Coronavirus Response Act (FFCRA) was passed to provide sick leave in the form of tax credits that also extended to the self-employed. Beyond the governmental responses, Platform companies offered new limited relief to their workers in the form of sick leave, even as they continue to classify them as freelancers. Mass layoffs alongside mass hiring present immense legal challenges even without a health pandemic. The COVID-19 crisis adds the challenges of health and safety, social distancing, risk management, and telecommuting. This essay written for a symposium on Covid-19 and the Law examines employment law and employee classification in relation to the contemporary realities of the labor market during the Coronavirus pandemic. As business models and market structures are constantly changing and shifting, one thing remains the same: how we classify the work relationship carries enormous weight in determining the rights and duties of market actors. This essay presents the ways the COVID-19 pandemic has exposed the vulnerabilities of gig workers and the irrationalities of rigid classification tests that have always been the Achilles heel of the field of employment and labor law. The essay explores pandemic related economic benefits that have been extended to freelancers and considers the ways the pandemic reveals the nature (and future) of the gig economy. Part I explains the federal and state efforts to expand unemployment benefits to freelancers. It describes how the CARES and FFCRA Acts have expanded the emergency unemployment benefits, paid sick leave, and expanded family and medical leave to freelancers, and yet the funding and the operational details of these programs are still contested. Part II describes the continued service of gig workers during the pandemic, especially in the delivery sector, and how classification as freelancers has left many without medical leave rights, health and safety rights, and other protections. Drawing on my recent research, Part III argues that the fight over employee classification is a red herring, as it misses the point about what public protections ought to be provided to all workers in the labor market. I propose that certain employment and labor protections should be extended to non-employees whether they work on the digital platform or offline in more traditional settings. I further argue that our social welfare system should not be so heavily linked to the labor market."