The Yale Law Journal

November 2018

What Should We Do After Work? Automation and Employment Law

Labor and Employment Law

abstract. Will advances in robotics, artificial intelligence, and machine learning put vast swaths of the labor force out of work or into fierce competition for the jobs that remain? Or, as in the past, will new jobs absorb workers displaced by automation? These hotly debated questions have profound implications for the fortress of rights and benefits that has been constructed on the foundation of the employment relationship. This Article charts a path for reforming that body of law in the face of justified anxiety and uncertainty about the future impact of automation on jobs.

Many of the forces that drive automation—including law-related labor costs—also drive firms’ decisions about “fissuring,” or replacing employees with outside contractors. Fissuring has already transformed the landscape of work and contributed to weaker labor standards and growing inequality. A sensible response to automation should have in mind this adjacent problem, and vice versa. Unfortunately, the dominant legal responses to fissuring—which aim to extend firms’ legal responsibility for the workers whose labor they rely on—do not meet the distinctive challenge of automation, and even modestly exacerbate it. Automation offers the ultimate exit from the costs and risks associated with human labor. As technology becomes an ever-more-capable and cost-effective substitute for human workers, it enables firms to circumvent prevailing legal strategies for protecting workers and shoring up the fortress of employment.

The question is how to protect workers’ rights and entitlements while reducing firms’ incentive both to replace employees with contractors and to replace human workers with machines. The answer, I argue, begins with separating the issue of what workers’ entitlements should be from the issue of where their economic burdens should fall. Some worker rights and entitlements necessarily entail employer duties and burdens. But for those that do not, we should look for ways to shift their costs off of employer payrolls or to extend the entitlements themselves beyond employment. The existing fortress of employment-based rights and benefits is under assault from fissuring and automation; it is failing to protect those who remain outside its walls and erecting barriers to some who seek to enter. We should dismantle some of its fortifications and construct in its place a broader foundation of economic security for all, including those who cannot or do not make their living through steady employment.

author. Catherine A. Rein Professor, New York University School of Law. I would like to thank Charlotte Alexander, Lily Batchelder, William Forbath, Jess Issacharoff, Samuel Issacharoff, David Kamin, Mitchell Kane, Wilma Liebman, Dennis Nolan, Brishen Rogers, Benjamin Sachs, Daniel Shaviro, and Andy Stern, as well as participants in several workshops and conferences, for thought-provoking comments and helpful advice. I also had the benefit of outstanding research assistance from Alexander Arnold, Matthew Stoltz, and Rachel Sommer, and excellent editorial input from the Yale Law Journal editors. All errors and misunderstandings are my own.