Document Type

Working Paper

Publication Date

8-6-2020

SSRN Discipline

PSN Subject Matter eJournals; Political Economy - Comparative eJournals; Medical Specialties eJournals; LSN Subject Matter eJournals; Financial Economics Network; MedRN Subject Matter eJournals; Management Research Network; Economics Research Network; Legal Scholarship Network; Law & Society eJournals; Law & Society: Private Law eJournals; Political Science Network; Medical Research Network; Employment, Labor, Compensation & Pension Law eJournals

Abstract

In the era of COVID-19, the term “essential labor” has become part of our daily lexicon. Between March and May, 2020, essential labor was not simply the only kind of paid labor occurring across most of the United States, it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers’ advocates, and politicians have scrambled to articulate exactly what makes essential labor “essential.” Some commentators have also argued that the rise of essential labor as a conceptual category disrupts—or should disrupt—longstanding patterns in the way the nation regulates work. Contrary to this emerging narrative, this Article argues that essentiality is not at all new to the way we conceptualize and regulate labor in the United States. If anything, essential labor replicates and exacerbates an attitude that has always been central to American work law: the idea that work should be measured, classified, regulated, and remunerated according to how much it benefits someone other than the worker. The only thing that has changed as a result of the coronavirus pandemic is the referent in this analysis: essential to whom? Before the pandemic, the United States considered work to be essential when it was essential to the employer; during the pandemic, essential labor has come to mean tasks that are essential to society as a whole. In neither scenario is the relationship between the worker and their work at the center of legislation, adjudication, or business operations. This Article therefore offers a novel proposal: a worker-centric analysis demonstrates that, in the United States, labor is always essential to the worker. This is both legally true, in the sense that this country ties physical and financial well-being to employment status more than any other highly developed nation, and it is morally true, in that social science scholarship and human rights discourse have established the critical relationship between work and human flourishing. In light of this, the Article contends that the longstanding and idiosyncratically American concept of “at-will” employment, whereby work relationships can be terminated upon no notice and for any reason, fails because it neglects to account for the extent to which labor is essential to workers. Relinquishing the concept of at-will employment will not by itself solve all the problems bedeviling American work law, but it is an important and necessary first step toward fixing those problems, and toward implementing the true labor and employment law lesson of COVID-19.

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