WhoÕs Responsible Here? Establishing Legal Responsibility in the Fissured Workplace

The nature of work is changing, with workers enduring increasingly precarious working conditions without any safety net. In response, this article proposes a new ÒConcentric Circle frameworkÓ which would improve workersÕ access to civil, labor, and employment rights. Many businesses, including app-based platforms, have restructured toward Òfissured workplaceÓ business models. They treat workers like employees (specifying behaviors and closely monitoring outcomes) but they classify workers as independent contractors (engaging them at an arms-length and cutting them off from rights and benefits tied to employment). These arrangements confound legal classifications of ÒemploymentÓ and expose deficiencies with existing workplace protections, which are based on Òemployment relationships.Ó As a result, a growing number of workers lack both bargaining power and critical workplace rights and benefits. We propose a Concentric Circle framework to better govern workersÕ rights in the modern era. At the core, we maintain that certain rights and protections should not be tethered to an employment relationship, but to work itself. Thus, the right to be compensated for work and paid a minimum wage; freedom from discrimination and retaliation; access to a safe working environment, and the right to associate and engage in concerted activity should belong to all workers, not just employees. Second, as a middle circle, we argue for a rebuttable presumption of employment to address those rights that remain exclusive to employees (and not independent contractors), and we propose an updated legal test of employment. Finally, at the outer ring of the framework, we suggest policies that could enhance workersÕ access to benefits that promote worker mobility and social welfare. Other scholarship has focused exclusively on either independent contractors or employees, or it has proposed a new category of worker altogether. We contend that this comprehensive framework better assigns rights, responsibilities, and protections in the modern workplace than do current legal doctrines or alternative proposals.