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Labor & Economy

Forward into the Past?





(This is the first in a three-part series about the misclassification of employees as independent contractors – a practice which affects millions of workers in the U.S., including most of the nation’s nearly 100,000 port truck drivers).

At the zenith of the Occupy movement, some commentators adopted the term “neo-feudalism” to describe the relationship between powerful corporations and the rest of society. Did this rhetoric have a basis? Yes and no. A portion of today’s workforce labors under conditions that resemble the dark era of the 19th century more than they do either the medieval or the modern one.

First, a little background. In the social and legal world of medieval England (which, for better or worse, begat our legal system), one’s employer was one’s master, landlord, and protector – and all these relationships were encased within the Church and the great chain of being.

Within that system, there was no such thing as freedom of employment (even if one had the good fortune not to be born a slave). One’s place in life was part of a divine order, and rebellion was against not just the master but against that very order. One owed the master certain duties: of obedience, of loyalty. Conversely, the master owed the worker protection and subsistence. Master and servant – employer and employee, landlord and tenant – were connected to each other by ties neither was truly quite free to sever (although one was freer than the other).

In time, the Enlightenment brought the modern notions of freedom, autonomy and personal agency regardless of station in life. The great chain of being was demolished and replaced by the idea of a society of souls co-equal before God — all equally free to apply their natural talents and make choices, and to enjoy the resulting fortune or suffer the resulting deprivation. Feudal notions of appropriate power relations mingled with the new ideas of freedom in the British common law of master and servant, from which our own employment and labor law are derived, and which was first codified in the 16th century.

The new regime had new problems. The ties that bound master and servant were cut, but the radical inequality in their material resources, social power and, to a great extent their legal power, persisted. Indeed, in some ways, the emerging order was crueler than the last: While previously the worker’s lot was the result of forces everyone admitted were beyond his control, the nascent ideology of freedom of contract made any ill luck the result of the worker’s “free choices.”

By the 19th century, this unholy alliance, of the ideology of “free choice” and the residue of feudal privilege, ruled not only Britain’s legal system but many others the world over. In the newly industrializing America, a typical worker was a recent immigrant who labored long hours in dangerous conditions, without health and safety protections, without workers’ compensation insurance if he was injured on the job, without Social Security and Medicare, without the benefit of modern laws against racial and gender discrimination, without a guaranteed hourly wage and without the legal minimum wage. His or her right to organize a union was precarious at best.

Now let’s take a look at a worker in a key industry in today’s 21st century American economy. A typical port truck driver in Southern California –a member of a large workforce that is essential in transporting goods to and from the continent’s largest port complex, a key link in the global supply chain – is a recent immigrant who labors without health and safety protections, without workers’ compensation insurance, without employer contributions to Social Security and Medicare, without the benefit of modern laws against racial and gender discrimination, without a guaranteed hourly wage and frequently without the legal minimum wage. His employer does not recognize his right to organize a union.

What’s more, his employer is not just his employer. His employer generally owns the truck he drives –or otherwise controls it through a complex financing scheme– and deducts payments for the use of the truck, its repair, gas, insurance and other expenses from the driver’s weekly pay. The driver signs the contracts governing these arrangements, but has no actual freedom to alter them in any way. He bears most of the risks associated with his work – if he is injured, if his truck is damaged or if he is unable to get enough loads in a given week, he may face catastrophe.

Yet he has no opportunity to increase his earnings beyond a low ceiling, or to make a profit. Some weeks, after working more than 60 hours, he finds himself taking home a negative paycheck because what he owes the company on the truck exceeds what the company owes him for his work. If he is truly unlucky, he may find himself torn between making a poverty wage (or less) and facing a personal lawsuit from his employer for breaking a multi-year contract.

But wait a moment. For this worker and many others like him, what happened to the social and legal advances of the 20th century?

This is the first in a three-part series. Read on in Part II: What’s in a Name? How Independent Contractor Misclassification Violates the Law and Damages Society. Part III: The Fix: Restoring the Rights of Misclassified Workers.

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