Law 165 - The Legal Nature of the Employment Relationship: A Theoretical and Historical Perspective
J.D. Harvard, 1979
Current controversies regarding the employment status of Uber, Lyft, Task Rabbit, and other forms of workers in the “gig economy” raise the question of what is “employment” and how should it be regulated. This issue has appeared in other forms since the dawn of the industrial era, and their resolution has important social consequences. This course will examine the notion of the contract of employment in U.S. law. It will trace the development of employment from the master-servant doctrine of the 19th century to the at-will employment regime of the 20th century, and then to the growth of multiple types of employment and independent contracting relationships in the 21st century. In doing so, we will also examine the theoretical work about how the employment relationship should be regulated, including the views that employment is a property right, a contractual right, and a socially constructed relationship. We will also look at the question of whether employment is a unique type relationship that should operate outside the logic of the marketplace, or whether labor is best viewed as a “commodity” and subject to the rules of the market. We will then look at the current debates concerning whether new forms of employment require new legal categories to achieve important social goals.