- Research Handbooks in Comparative Law series
Edited by Matthew W. Finkin and Guy Mundlak
Chapter 4: The subjects of labor law: ‘Employees’ and other workers
Who is an employee? Which workers ought to be covered by the protective panoply offered by labor law? These are questions with a long history. Courts all over the world have been struggling with these issues since the beginning of modern labor law, approximately a century ago, but variations of the same question had been troubling courts for several centuries beforehand. Laws regulating the labor market usually give rights to ‘employees’ without defining this term. Frequently confronted with the need to decide if one can claim such labor/employment rights or not, courts had to develop tests and indicia to assist in this task and provide guidance to employers and workers. Those tests have developed over the years. Occasionally, the legislature has also sought to take the lead in this area by introducing specific legislation aimed at recognizing labor rights to particularly defined categories of ‘employees’ or ‘workers’. One useful way to approach this topic is accordingly by way of an historical analysis (Linder, 1989; Deakin and Wilkinson, 2005). As in many other fields, the law on ‘who is an employee’ has not always been consistent and coherent. It is therefore extremely valuable to examine the law (especially case-law) of one legal system deeply and expose inconsistencies, shortcomings in application and hidden goals/assumptions. Such a descriptive/analytical/critical approach to study this problem has also been very useful (Freedland and Kountouris, 2011; Fudge, Tucker and Vosko, 2002). ‘Who is an employee’ is also a question with a heavy normative baggage.
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