Research output: Journal Publications and Reviews (RGC: 21, 22, 62)22_Publication in policy or professional journal

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Original languageEnglish
Pages (from-to)315-399
Journal / PublicationSouth Carolina Law Review
Issue number2
Publication statusPublished - 2014
Externally publishedYes


The principal source of instability in the employment/non-employment distinction is neither imprecision in the legal tests nor the disjuncture between static legal categories and the changing organization of work away from industrial forms since the 1970s. Rather, it is the contradiction between equality and servitude embedded within the employment contract. The employment contract in the United States is a product of the nineteenth century incorporation of master–servant status relations into contracts for labor services. The legal rendering of master–servant authority as a “contract” collapses a fundamental distinction on which contemporary decision makers rely to differentiate employment from other work relationships—the distinction between whether the alleged employer has a right to control the “means and manner” of the work, the process, as opposed to only a right to control the “ends” of the work, the product. It creates an ambiguity in employment between contracting (regarding the ends) and production (the means), or between contractual formation and
One manifestation of the collapse of the means/ends distinction due to the contradiction between servitude and equality in employment is judicial discord over the phenomenon of upfront contractual specification (UCS). In several legal disputes over whether certain work relationships are “employment” relationships, the written contract governing the work includes detailed and somewhat comprehensive rules. The alleged employer claims that the contractual rules describe the “results” and not the “work.” It may even suggest that the rules are probative of non-employment because they limit its authority. The workers claim that the contractual rules are an exercise of control over their work, thus demonstrating an employment relationship. The contracting/producing ambiguity poses intractable interpretative problems when evaluating claims of control over the work relationship based on UCS.
The contracting/producing ambiguity is constant and permanent. The distinction between employment and non-employment depends on the institutionalization of employment as a social practice. Legal decision makers help to stabilize the distinction by constructing institutional markers that signify employment or non-employment, such as the bureaucratic and temporal markers of industrial work. This Article proposes that decision makers often construct and interpose the written contract, and practice of signing it, as an institutional referent that signifies non-employment by purporting to separate contracting from producing and to defend a sphere of independence in production.

Research Area(s)

  • labor and employment law, Political economy, economic sociology