The Crisis in the US Litigation Model of Labour Rights Enforcement

AuthorAlan Hyde
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The Crisis in the US Litigation Model of
Labour Rights Enforcement
An Hde
To each individual classied as an “employee,” the United States guar-
antees a suite of legal rights that, in international comparison, is note-
worthy primarily for its () paucity and () extraordinary diculty of
enforcement. The US maintains what Canadians call a “litigation model,
under which statutory claims for labour standards and anti-discrimina-
tion claims must normally be brought to court for enforcement. This US
model is what Canada’s Weber doctrine is seeking to avoid. I am sincerely
grateful to the organizers of this symposium for the opportunity to reect
on this litigation model, something taken for granted in the extensive
and outstanding literature on the current crisis in US labour rights en-
forcement. My preliminary conclusions are that the origins of the liti-
gation model are obscure and its maintenance poorly-defended; that it
is rapidly approaching crisis; that the Canadian practice of encouraging
arbitration of statutory claims is unlikely to work well in the US; but that
it is long past time for the US to design administrative agencies with full
authority to reinstate and compensate victims of labour standards viola-
tions and workplace discrimination.
Recent scholarship on statutory labour rights enforcement in the US
reects a sense of crisis, yet this extensive, illuminating literature takes
for granted the litigation model that is the very source of the crisis. Other
I owe this insight to Chris Dassios, who chaired the symposium panel where I initially
presented this paper.
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aspects of enforcing statutory labour rights have been much discussed.
The growth of the temporary-help sector and other labour market inter-
mediaries has created complex structures in which many employees are,
for legal purposes, ostensibly employed by small, undercapitalized enti-
ties, rather than the more powerful ultimate purchasers of labour servi-
ces. Increasingly, this problem is being addressed through more liberal
ndings of “joint employment,” under which the worker is jointly em-
ployed by more than one beneciary of his or her work. In addition, state
statutes increasingly impose legal responsibilities on ultimate purchasers
of labour even where relations of joint employment cannot be found. This
concept of “responsibility” for labour conditions should be, I have argued,
the preferred framework for discussion of the problem. There has been
much concern about misclassication: that is, denying working people
their statutory rights by describing them, for example, as independent
contractors or student interns. For federal statutes, the denition of “em-
ployee” involves one of a number of multi-factor factual inquiries into the
control of work, and generalization is dicult. (While most federal stat-
utes are interpreted to adopt a common law denition of employee, state
law is permitted to adopt a more-inclusive denition of employee.) Also
See David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and
What Can Be Done to Improve It (Cambridge MA: Harvard University Press, );
Alan Hyde, “To What Duties Do Global Labour Rights Correlate? Responsibility for
Labor Standards Down the Production Chain” [“To What Duties”] in Yossi Dahan,
Hanna Lerner & Faina Milman-Sivan, eds, Global Justice and International Labour
Rights (Cambridge UK: Cambridge University Press, ) .
For example, see Browning-Ferris Industries of California Inc,  NLRB No , 
LRRM  () (recycling plant and labour supply rm joint employers); Cano v
DPNY Inc,  FRD  (SDNY ) (franchisor and franchisee; triable issue of fact
whether they are joint employers); Lin Nan Zheng v Liberty Apparel Co,  F d 
(d Cir ) (the garment needle shop and garment label for whom garments were
produced are joint employers).
Cal Lab Code § and . (responsibility of those who contract for labour
through intermediary; no nding of joint employment required); NY Lab Law
§§, -a, () (various “non-delegable duties” of landowners who hire con-
struction labour through intermediaries; no nding of joint employment required).
See generally Hyde, “To What Duties,” above note .
See e.g., O’Connor v Uber Technologies Inc,  F Supp d  (ND Cal ) (labour
standards suit by on-call drivers, denying summary judgment to employer); Alexan-
der v FedEx Ground Package Sys,  F d  (th Cir ) (FedEx drivers are stat-
utory employees and not self-employed, relying in part on California law); Hargrove
v Sleepy’s LLC,  A d  (NJ Sup Ct ). An individual is presumed to be statu-

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