The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”
The biggest challenges facing workers’ rights in the future largely pertain to the automation of the workforce and in sociostructural changes that will be brought upon society by artificial intelligence. The general consensus is that workers will become “less essential” to businesses over time, especially major corporations, as technologically-enabled productivity soars. Even though technologically-enabled productivity is not new, the scale of the future situation will far surpass the breadth and depth of past industrial revolutions. What does this mean for workers’ rights and employment lawyers?
First of all, it is likely that worker transitions and dislocation will greatly increase. As a result, workers will be increasingly vulnerable. Legal frameworks that encourage entrepreneurship and new business growth could create opportunities for vulnerable workers and foster a culture of economic dynamism. This business acceleration will require regulations to evolve and to provide the right incentives regarding workers’ rights. For example, tax incentives could be offered to businesses that sponsor worker training programs.
Accelerated, experiential, and online forms of education are likely to become more popular. This may offer workers’ rights advocates a subtle insight into what types of opportunities can benefit employees the most. On the other hand, it is also likely that the demand for simpler laws could evolve as a result of market chaos and disruption. The less formal “gig economy” is likely to continue to grow and will require workers’ rights advocacy on issues as diverse as worker classification, benefits, and wage scaling.
Additionally, technology will create numerous changes to existing jobs as workers will have to adapt while still employed. This opens the door to more rapid changes in job duties and titles, which will have to be adequately accounted for in employment contracts. The scope and depth of worker transitions and dislocation will also determine new legal challenges that cannot be foreseen from current circumstances.
Secondly, although the disruption that will be brought upon by artificial intelligence is expected to provide new work opportunities, it is also expected to cause the extinction of many jobs. This is especially true of the low-wage service and retail jobs that employ the vast majority of workers in our economy. As a result, wealth inequality is expected to further increase (even if the general quality of life will rise due to increased labor productivity). This is likely to put increased pressure upon political bodies and corporate chains to endorse more adaptive social safety nets such as universal basic income, wage insurance policies, expansion of state retirement policies, public healthcare options, or conditional wealth transfers.
Although many of these ideas are controversial, they will begin to demand larger shares of future policy debates with vast implications for workers’ rights lawyers. A recent case of interest is that of Hlatky v. Steward Health Care System, Inc., in which Dr. Hlatky was awarded ten million dollars in damages in a breach of contract against her former employer on the basis of having lost and then re-establishing her research laboratory. The massive disruption surrounding worker disruption, loss of work, and even intellectual property will likely accelerate over time; providing ample considerations that employment lawyers will have to examine.
Thirdly, new job opportunities and economic realities are likely to necessitate unique worker protections. The most obvious one is protection from mass surveillance and how society can evolve to incorporate stronger privacy protections for workers and the general public. Digital security will become an increasing concern as more social functions and daily devices are put online. A notable case in point is that of Various Claimants v. WM Morrison Supermarkets, Plc. In this case, the UK Court of Appeal held that the supermarket company was liable for the criminal actions of a former IT auditor employee who disclosed the personal data of other staff online.
Data security concerns will continue to increase in a highly technological future and the responsibilities of such security will have to be properly split between the employer and the employee. It is expected that such disputes will become more common; and whether they include personal devices, specific workplace policies, local regulations, and the use of certain technologies will have to be carefully understood by the employment lawyers of the future.
Lastly, technology will create new legal liabilities and responsibilities in the workplace. If an automated self-driving truck with a human driver crashes, who is responsible for the accident? Is it the driver, the software, or the company employing both? The final accounting of responsibility will depend on the details of each particular case, but clearly there will be major debates and legal regulations surrounding injuries and accidents as they relate to new technologies.
Reflections from Charles Joseph
Automation has been changing the workforce for years––but, as Cohen persuasively argues, employment law still lags behind these changes. Will employees bear liability for data breaches and accidents in self-driving cars? How will dislocation affect workers’ rights?
Similarly, the patchwork of state and local employment protections, combined with growing remote work, leaves some workers unclear of their legal rights. New York City’s Freelance Isn’t Free Act covers NYC freelancers. But what about freelancers in other states working for companies in Manhattan? Or the reverse? Similarly, New Jersey discrimination laws offer strong protections, but who counts as a protected employee? Without clear laws and policies on a national level, many workers will lose their already tenuous protections.
Shanee Cohen holds a bachelor’s degree in anthropology with a minor in history from UCLA. In addition to graduating summa cum laude, Cohen is a licensed pilot. She will attend the UCLA School of Law in fall 2021.
Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.