Rebalancing Worker Rights and Property Rights in Digitalised Work

Abstract

This chapter examines how companies appeal to property rights to limit the scope of labour legislation, focusing on disputes over employment status involving service work and work coordinated through digital technology. It argues that the legal basis of the right to control the labour of others is ambiguous, because this authority can be rationalised as either an incident of the employer’s contractual rights or of the property rights of the entrepreneur. Companies draw on this ambiguity by arguing that they direct and discipline labour not in their capacity as employers, but rather in their capacity as disposers and protectors of property. On this basis, companies dismiss the relevance of their labour controls to the issue of their labour law obligations. The chapter theorises that service work involving customer interaction and work coordinated through digitalised control are particularly susceptible to these appeals. As illustrated by lawsuits involving the digital platforms Uber and Lyft, companies exploit the worker-customer encounter and the embedding of managerial controls in software to increase the relational space over which they can redefine employer authority as the prerogatives of the enterprise owner. The analysis exposes a potential legal consequence of the digitalisation of work that has not yet received attention: a restoration of the pre-industrial master’s property rights to the servant’s labour.

Keywords: employment law, labour law, gig economy, platform work, managerial prerogative

JEL Classification: K00, L00