Academic journal article Vanderbilt Law Review

Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships

Academic journal article Vanderbilt Law Review

Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships

Article excerpt

"Who is a worker?" The answer often determines who receives legal protection or support, and who does not. Disputes over this question animate both feminist scholarship examining nonmarket work and labor law scholarship examining how labor market restructuring challenges legal definitions of employment. This Article brings together these two lines of inquiry. It shows how the legal category of employment relies on distinctions between market and nonmarket work, and does so well beyond the familiar context of family labor.

By examining prison inmates' statutory employment law claims, I identify a previously unrecognized economic dimension to disputes over the employment relationship's scope. This economic dimension is analytically distinct from the traditional control dimension rooted in agency law. Courts often hold that prisoners are not employees because their efforts are not economic in character, even though the work is done for pay. Throughout employment law, similar issues arise about work in welfare, educational, medical, and religious institutions. What unites these disputes over paid nonmarket work is that courts are torn between two rival accounts of what makes employment economic. The more restrictive one requires a market relationship; the more expansive one requires productive work. I show that neither approach is viable.

Understanding employment's economic dimension requires a new approach to employment law. Employment law does not simply identify and regulate a relationship that exists independently in society. Instead, employment law helps to constitute employment as an economic relationship, to promote its coherence, its distinctiveness, and its location in the market economy. Employment law fosters the very divide between economic and noneconomic relationships to which it purports to respond.

Prisoners are essentially taken out of the national economy upon incarceration.

-Vanskike v. Peters1

Let the prisoners pick the fruits. We can do it without bringing in millions of foreigners.

-U.S. Rep. Dana Rohrabacher2


The "who" question is prominent in recent legal scholarship about work: Who is recognized as a worker, and who is left out?

Roughly speaking, two distinct conversations pursue this question. One analyzes the centrality of market work and questions whether other activities-nonmarket work-should be incorporated into legal regimes of worker support and protection. This inquiry emerges from feminist scholarship, focuses on families and caregiving, and primarily considers reforms in who counts as a worker for the purposes of family, welfare, social insurance, and tax law.3 The boundaries of employment largely are taken for granted, and the problem is whether to go beyond employment and recognize unpaid work performed outside the market's boundaries.4 A second conversation responds to the proliferation of contingent work, outsourcing, and workforce intermediaries like temporary staffing agencies, and it proceeds to question how yesterday's employment statutes engage today's restructured labor market. This inquiry emerges from labor and employment relations scholarship, focuses on firms in conventional labor markets, and primarily considers reforming the employee/independent contractor distinction or reconfiguring labor protections to be less dependent on a single, or even any, employer.5 In this second case, the restriction of work to the market largely is taken for granted, and the problem is whether the employment relationship includes enough paid work.6

This Article brings these two conversations together7 by identifying a fundamental problem in employment law that has escaped scholarly attention. The boundary between market and nonmarket work is central to legal definitions of employment. Determining who is an employee requires deciding where to draw that boundary, or whether to do so at all. The opening quotation from Vanskike v. …

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