Jottings By An Employer's Lawyer

Friday, January 30, 2015

The Evolution of Employment Law

When I started practicing, 40 years ago, the law of employment was still covered in the legal treatises under the law of Master and Servant. 

We have come a long way. But we still divide those who do the work into two broad categories: employees and independent contractors. 

But in keeping with the well discussed change to a more transactional work force, employment law scholars are beginning to think if those two broad categories are sufficient. 

An article in the Wall Street Journal talks about one possible new construct: dependent contractors. What if There Were a New Type of Worker? Dependent Contractor.  I don't know if that one will ultimately fly, but I do think it is likely there are going to be some new thinking.

Also in the not too distant future, we may finally have a Restatement of Employment Law. I had sort of forgotten that it had been in the works, since it has been in the draft stage for such a long time, but was reminded at a conference last week that it was getting close. According to the ALI website, it is now in final draft form subject only to one more review of the entire body. 

I have suggested that employment law as a discipline really only began with the passage of the Civil Rights Act of 1964. In the bigger scheme of things, that's not that long, so it seems likely that there is a lot of evolving to come.

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