Author: Julia Louise Tomassetti

Publisher:

Published: 2014

Total Pages: 365

ISBN-13:

The chapters interrogate the legal reasoning by which U.S. courts and administrative agencies are reconstructing labor-capital work relationships in recent employment status decisions. These decisions determine the legal rights of workers by answering the threshold questions, "who is an employee?" and "who is the employer?" Given an apparent postindustrial re-organization of work, the dissertation examines how "bourgeois" ideology, as a distorted form of reasoning that conceals contradictions of class domination in work relationships, inheres in the legal reasoning of employment status decisions. I argue that the 19th century union of master-servant legal relations with contract embedded within the employment contract a contradiction between servitude and equality. Each chapter examines interpretative problems that the contradiction creates in contemporary employment status disputes. Chapter 2 examines decisions by different partisan blocs of the National Labor Relations Board regarding the employment status of graduate student workers, medical residents, and disabled janitors in sheltered workshops-- workers whose relationships embody the contradictory permeation of wage labor into formerly less commodified relations. I argue that the Republican blocs tended to conceal class domination more so than the Democratic blocs, because they engaged the servitude-equality contradiction to reinterpret relational indicia consistent with employer control over the productive process as a status-like authority in a hierarchical, nonmarket social sphere of sympathetic, personal relations. Chapter 3 identifies upfront contractual specification (UCS) as a source of judicial disagreement in employment status disputes. UCS is the phenomenon of including detailed and comprehensive descriptions of the work to be performed in a written contract. I show that the disagreement is rooted in two doctrinal ambiguities in employment that issue from the servitude-equality contradiction: (a) between "contracting" and "production", and (b) between employer contractual rights and entrepreneurial property rights. Chapter 4 examines decisions on the employment status of FedEx delivery drivers. I show that the judges finding the drivers to be independent contractors rather than employees exploited the servitude-equality ambiguities to redefine control in production as equality in contracting, and to redefine FedEx's contractual authority over work relations as entrepreneurial property rights. They constructed the drivers' "entrepreneurial opportunity" so as to conceal a key feature of employment that differentiates it from other contracts--its one-sided open-endedness. They concealed FedEx's bureaucratic coordination of the work by transforming multilateral relations in production among coworkers into relations of production. By redefining legitimate domination and reproducing legal instability in the employment/non-employment distinction, legal ideology in employment status decisions works to re-institutionalize U.S. class relations in new, historically specific, social forms.