Edited by Matthew W. Finkin and Guy Mundlak
The question ‘Who is an employee?’ and the problematic distinction between employees and independent contractors can be regarded as a cornerstone of labor and employment law. By contrast, the question ‘Who is an employer?’ is usually neglected in labor and employment law. However, in the last decades, the profound transformations economic organizations have been experiencing have led lawyers to face new problems relating to the ‘employing entity’. As a consequence, the concept of employer has played an increasingly dominant role on both theoretical and practical levels. The meaning of ‘employer’ can vary in different contexts. The answer to the question ‘Who is an employer?’ is particularly sensitive to the different scopes of statutory protections. From a collective labor law perspective, for instance, the problem of who is the employer deals with the scope of collective bargaining and the definition of bargaining unit, thereby involving issues such as the boundaries of the economic activity, the business sector where the firm operates and the effective control of the firm on entrepreneurial strategies. In employment law, the question ‘Who is the employer?’ affects the distribution of employer liabilities and obligations such as the duty to pay wages, the breach of minimum labor standards (e.g. health and safety protection), the prohibition of discrimination. Furthermore, the concept of employer also needs to be discussed in a diachronic perspective. The employer is not a ‘static entity’, but rather an entity that can experience a number of transformations through mergers, acquisitions, outsourcing or insourcing strategies.
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