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Publication Title

Washington University Global Studies Law Review

Abstract

When viewed flexibly, not to find doctrinal rules, but rather to find insight from judges’ collective judgment on social values, the common law may have particular value for modern policy makers. For instance, a common law insight could set policy makers in both the United States (U.S.) and the United Kingdom (U.K.) on a promising path for defining when workers are to be protected and benefitted by employment statutes. That insight reflects the underlying rationale for the common law that made relevant the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat superior. This rationale is based on the appropriateness of cost internalization where there is an alignment of worker duties with employer interests. It presents a socially compelling reason for assigning responsibility for workers’ benefits and protections to an employing entity, or entities, with aligned interests, rather than to the workers or to the general society.

While statutory protections and benefits should be based on worker need, the alignment of worker duties with employer interests provides a critical principle of economic fairness for assigning responsibility for the protections and benefits. Where workers do not have sufficient control over economic resources to work in their own independent interests, rather than in line with those of some employer or employers, they are in a position of greater need than those workers who do have such control. Furthermore, in the absence of such resource control, their duties will be aligned with the interests of employers that presumptively should be responsible for the protections and benefits offered by modern employment statutes. This essay elaborates how the principle, which is expressed in the Restatement of Employment Law, applies to some difficult questions in the modern economy, including the treatment of workers employed by digital platforms and those with multiple potential employers.

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