Guy Davidov

University of Toronto Law Journal (UTLJ) 73(3) p. 379-379 Doi: https://doi.org/10.3138/utlj-2021-0113

Working through platforms is a recent but fast-growing phenomenon, with obvious implications for workers’ rights. Discussions have so far focused on the status of platform-based workers, but, recently, a growing consensus is emerging by courts around the world that workers for platforms such as Uber are in fact employees. As a result, legal disputes are likely to shift, to a large extent, from status questions to working-time questions. This might seem like a very specific issue, but, in fact, it has crucial implications for the entire model of platform work, and addressing this question requires us to rethink some of the fundamental pillars of labour law, notably whether more room should be opened for flexibility and individual choice within this system. We argue that one aspect of the platform model – ‘work on demand,’ which allows workers to log into the app whenever they wish to do so – poses a difficulty. Workers should be compensated for the time they are ‘on call’ and available to work. But platforms can be expected to respond by assigning workers to pre-set shifts to avoid paying for an unknown amount of working hours, thereby dismantling the ‘on-demand’ model. Such a change would be welcomed by many employees, who will gain more security, but others can be expected to object to losing the flexibility which they value. We consider possible solutions that could allow workers to choose the ‘on-demand’ model. While rejecting the possibility of allowing employees to waive on-call compensation rights, we consider several intermediate solutions that ensure partial payments for this time or exempt employees with another full-time job. The proposed solutions are based on the understanding that more choice is preferable in labour law as long as we can protect the interests of the affected employees and eliminate the externalities that some choices might generate for other workers.

Modern law review 86(5) p. 1165-1165 Doi: https://doi.org/10.1111/1468-2230.12802

This article considers the problem of questionable consent in contracts of employment. We suggest that in the context of employment, consent should be understood as a continuum that includes some level of coercion and some level of choice. We show that despite labour law's assumption of inequality of bargaining power, consent is still legally valid in various contexts of employment. We propose some solutions: procedural rules increasing the chance of free and informed consent, and substantive standards restricting recognition of consent due to public policy considerations. The ‘menu’ we put forward includes some solutions already recognised by law (in some specific contexts) and we also propose some new ones. We then demonstrate how the proposed solutions, both procedural and substantive, can be applied in common contexts where employee consent might be put into question: variation of contractual terms, waiver of access to courts, waiver of legislated rights, waivers related to human rights, and implicit waivers of employee status.

Berkeley Journal of Employment and Labor Law 45 p. 233-289 Doi: https://doi.org/10.15779/Z38CV4BS96

Much has been written about the legal tests that exclude independent contractors from employment and labor law coverage. Less attention has been devoted to courts’ use of classification processes that invoke some preliminary requirements (i.e., preconditions for employee status) and result in the exclusion of various categories of workers from potential coverage. Those workers include volunteers, prisoners, persons with disabilities, interns, trainees and apprentices, business owners, corporate directors, and officeholders. This Article brings these preconditions together into a coherent framework by critically examining their different variations in the U.S. as well as the UK, Canada, and the EU. Further, this Article proposes a narrower set of preconditions which will better advance the purpose of employment and labor laws and increase consistency and predictability in their application. The three proposed preconditions are: (1) performing work or providing services that benefit an employer (regardless of whether there is also a personal benefit for the worker) unless such benefits are negligible; (2) the work should be remunerated (regardless of whether wages are paid in practice or have been promised or not); and (3) the work is substantially performed personally.

Industrial Law Journal p. 1-33 Doi: https://doi.org/10.1093/indlaw/dwaf031

ABSTRACT The law of the contract of employment has been described as a field based on the idea of contract but shaped by the influence of labour legislation. The article proposes a theory that justifies a specific version of this fusion, offering a principled foundation for the judicial development of the law and for interpreting contracts of employment. It starts by explaining why contracts of employment are unique and why the general law of contract cannot apply. I then argue that the law of the contract of employment should be understood as advancing two sets of goals, those of contract law and those of labour law, proposing a different hierarchy between them in different situations. Some substantive principles are then derived from this general structure: a duty of good faith; preventing evasion from legal obligations; the primacy of reality; the limits of consent; respect for human rights; non-symmetry in applying contract law; and the importance of specialised labour courts or tribunals.

Modern law review 88(2) p. 267-299 Doi: https://doi.org/10.1111/1468-2230.12919

Misclassification of employees as independent contractors is widespread. This article aims to make two contributions. My first goal is to sharpen the explanation of why misclassifications persist; I argue that three well‐known problems – the indeterminacy of employee status tests, the barriers to self‐enforcement, and the inequality of bargaining power – together combine to give employers de facto power to set the default legal status. Putting the burden on the worker to initiate legal proceedings and challenge their classification as an independent contractor is the ultimate reason for persistent misclassifications. The second and main contribution is to propose a solution that relies on new AI capabilities. Thanks to technological advancements it is now possible to require employers to seek pre‐authorisation before engaging with someone as an independent contractor. The authorisation would be granted (or refused) by a state‐run automated system, based on an AI prediction about the law. Both parties would still be able to bring the case before a court of law; but the power to set the default legal status would be taken away from employers. The article considers the difficulties with relying on AI predictions, and argues that those difficulties can be addressed, proposing a model that can be justified.