The New York Times reports that labor unions are lobbying President Trump to include protection...
Cynthia Estlund's three-part series After Work: Automation and Employment Law has been...
For over a century, workers and their organizations have struggled to raise labor standards and expand employee rights and benefits. Whatever the benefits to workers and the society, to any one private firm those laws represent a tax on employing human labor, and part of the calculus in decisions to contract out work or to replace people with machines. A logical though dispiriting response to plausible predictions of escalating net job losses would be to find ways to unburden the employment relationship.
The challenge of automation is in many ways continuous with the challenges of “fissured” work – to use David Weil’s influential formulation. In particular, both trends are driven in significant part by the costs and risks of employing human beings. According to investment banker Steven Berkenfeld, CEOs these days ask, “’Can I automate it? If not, can I outsource it? If not, can I give it to an independent contractor?’ Hiring an employee is the last resort.”
The labor world took notice when Andy Stern emerged from a years-long deep dive into the future of work, and concluded that the future will bring a lot less work. His book, Raising the Floor, helped to spur a debate over the universal basic income (UBI), including on this blog. But the underlying issue of technology-related job loss has not yet engaged the close attention of labor and employment law scholars. That should change. Even more than firms’ flight from direct employment through fissuring, their replacement of human labor with ever more capable and cost-effective technology threatens the foundations of economic and social life, and calls for a reexamination of prevailing approaches to regulation of employment.