Using consumer law to protect workers

In Consumer Law as Work Law (forthcoming Calif. L. Rev. 2024), law professor Jonathan Harris describes the possibilities and challenges of turning to consumer law as part of an integrated work law to help remediate the bargaining power asymmetries between firms and workers. Here is the abstract:

In recent decades, firms have radically transformed labor markets—from a world of long-term jobs with a single employer to one that offers contingent work or work disguised as entrepreneurship with multiple levels of labor intermediaries controlling the workers. These attenuated relations between worker and firm reflect the “fissuring” of work, in which firms have changed law to permit them to outsource, subcontract, and franchise out their labor needs, all in the name of profit. Firms today are taking an additional step beyond fissuring work: they are treating the workers themselves as consumers by offering them services and credit products. Workers, in short, are also consumers in some contexts.

Legal protections in the workplace should adapt by taking a lesson from the early 20th century when the fissuring of relations between manufacturers and consumers led to the emergence of consumer law. When firms expand employment contracts to extend services and credit products to workers, workers are entitled to consumer law protections.

This Article calls for an integrated work law, which includes consumer law, to more adequately counter firms’ exploitation of workers. Some favor turning only to traditional employment law to revive earlier industrial relations, including fortifying the statuses of employer/employee and the principle of compensation for work. But those laws have proved inadequate and, as the conventional relations break down, so too will law have to re-situate to provide robust worker protections. By using consumer law such as unfair or deceptive acts or practices law—along with established employment law—workers can gain leverage. Such a paired evolution of the doctrines will allow them to learn from and contribute to the strengthening of one another by enhancing collective action that could begin to resolve the asymmetries in bargaining power between firms and workers.

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