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Legal Principles in Contingent and Nonstandard Work Job Security - Essay Example

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Legal Principles in Contingent and Nonstandard Work Job Security

Beyond the implicit contract, unions were also successful in protecting against termination, requiring "just cause" instead of the more current employer flexibility of "at will" employment1.
The ushering in of the boundaryless workplace has dismantled much of the New Deal labor structure, and has put a premium on individual skills and knowledge. Employees have become free agents in the workforce, needing such skills to compete for prevailing wages with no implicit or explicit guarantee of job security. The strongest protection workers now have is education and training. Stone also notes that those hurt the most by this instability are blue collar and untrained workers2. While the lack of security is tumultuous in itself, Stone argues that the current labor structure does not have answers for many of issues that the changing economy present.
Using Stone's method of chronicling historical changes in the employer-labor relationship, the trend towards a more flexible and boundaryless workforces has worked to improve opportunities for women and minorities. At the same time, however, she believes that, "the new employment relationship makes discrimination hard to identify and difficult to challenge3." Successful attempts have been made to prevent overt discrimination such as Title VII, of the landmark 1964 Civil Rights law, the Age Discrimination Act of 1967, the Equal Pay Act of 1962, and the 1990 Americans with Disabilities Act4. This legislation is effective in allowing women and minorities to gain access to the points of entry into an internal labor market, however, due to the breakup of internal labor markets, these acts do not address more modern forms of discrimination.
Modern forms of discrimination have become subtler, and establishing preventative measures have become an arbitrary exercise. Stone writes, "In a workplace with fewer job ladders and flattened job hierarchies, discrimination takes new forms, such as patronage networks and cliques that exclude, ostracize, and marginalize newcomers.5" The courts have attempted to pinpoint these more modern forms of discrimination, but there is yet to be a legal consensus, as these cases are often settled pragmatically. The landmark U.S. Supreme Court case McDonnell Douglas Corp. v Green established a level of liability for proving discrimination. This case has not settled the issue though. Subsequent cases, such as Texas Department of Community Affairs v. Burdine in 1993-94, and St. Mary's v. Hicks have made it harder to refer to settled law to determine liability6. The recent shift toward a more contingent labor force may work to improve equality, but it has created legal ambiguities that will need to be solved.
Ownership of Human Capital
Perhaps no issue is more salient in the changing workforce than the control of human capital. Under a structure based on long-term employment and internal labor markets, employers have had legal protections geared toward keeping company knowledge and human capital exclusive use for the company. This has come in the form of non-compete covenants, restrictive contracts, and trade secret protections. Contingent workers in a changing workplace must use ...Show more


Katherine Stone argues that the change from an industrial-based economy to a knowledge-based economy has dramatically altered the traditional U.S. labor structure that has been in place since roughly the 1930's. Whereas in the past, there has been an implicit psychological contract between employees and employers exchanging loyalty for job security, the new economy does not offer such a promise…
Author : jonathonwolff
Legal Principles in Contingent and Nonstandard Work Job Security essay example
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