+(,121/,1(

Citation:
Brian Langille, Take These Chains from My Heart and Set
Me Free: How Labor Law Theory Drives Segmentation of
Workers' Rights, 36 Comp. Lab. L. & Pol'y J. 257
(2015)

Content downloaded/printed from HeinOnline

Tue Feb 6 05:13:20 2018

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

Copyright Information

Use QR Code reader to send PDF to

your smartphone or tablet device
 "TAKE THESE CHAINS FROM MY HEART AND
SET ME FREE": HOW LABOR LAW THEORY
DRIVES SEGMENTATION OF WORKERS' RIGHTS

Brian Langillet

I. INTRODUCTION: THE NOTION THAT OUR LABOR LAW THEORY

CAN "GET IN OUR OWN WAY"

At the end of this Article, I wish to bring the idea of equality to bear
upon the problem of "segmentation" of workers' rights. But in order to do
this I find I must start at some distance from that goal. This is because our
problems with "segmentation" of worker rights often have, as I see it, a
particular source. It lies in how we tend to think about labor law in a
general way, particularly about the answers to questions such as "why do
we have labor law?" or "What is it for?" In what follows, I rely upon and
restate briefly some ideas I have articulated before about the inadequacies
of our "standard" answers to such questions but I do so here in the name of
trying to expand my argument by showing the negative impact of these
inadequacies upon the way we address the problem of "segmentation" of
labor rights.1 The suggestion is that we have been stuck with, or chained to,

f Faculty of Law, University of Toronto.

1. See Brian A. Langille, Core Labour Rights - The True Story, 16 EUR. J. INT'L L. 1 (2005);
Brian Langille, The Future of ILO Law, and the ILO, in THE FUTURE OF INTERNATIONAL LAW 394
(2007); Brian Langille, Globalization and The Just Society: Core Labour Rights, the FTAA, and
Development, in GLOBALIZATION AND THE FUTURE OF LABOUR LAW 274 (John D. R. Craig & S.
Michael Lynk eds., 2006); Brian Langille, Human Freedom and Human Capital; Re-imagining Labour
Law for Development, in THE ROLE OF LABOUR STANDARDS IN DEVELOPMENT: THEORY IN PRACTICE?
(Tonia Novitz & David Mangan eds., 2012); Brian Langille, The ILO Is Not a State, Its Members Are
Not Firms, in PROTECTING LABOUR RIGHTS AS HUMAN RIGHTS: PRESENT AND FUTURE OF
INTERNATIONAL SUPERVISION 247 (George P. Politakis ed., 2007); Brian Langille, Imagining Post
Geneva Consensus Labor Law for Post Washington Consensus, 31 COMP. LAB. L. & POL'Y J. 523
(2010); Brian Langille, Labour Law's Back Pages, in THE BOUNDARIES AND FRONTIERS OF LABOUR
LAW 13 (Guy Davidov & Brian Langille eds., 2006); Brian Langille, Labour Law's Theory ofJustice, in
THE IDEA OF LABOUR LAW (Guy Davidov & Brian Langille eds., 2011); Brian A. Langille, Labour
Policy in Canada - New Platform, New Paradigm, 28 CAN. PUB. POL'Y 133 (2002); Brian Langille,
Putting InternationalLabourLaw on the (Right) Map, in SOCIAL REGIONALISM INA GLOBAL ECONOMY
290 (Adelle Blackett & Christian Ldvesque eds., 2009); Brian A. Langille, Re-reading the Preamble to
the 1919 ILO Constitution in Light of Recent Data on FDI and Worker Rights, 42 COLUM. J.
TRANSNAT'L L. 87 (2003); Brian Langille, A Question of Balance in the Legal Constructionof Personal
Work Relations, 7 JERUSALEM REV. LEGAL STUD. 99 (2013); Brian A. Langille, Seeking Post-Seattle
Clarity-and Inspiration, in LABOUR LAW IN AN ERA OF GLOBALIZATION: TRANSFORMATIVE
258 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

a particular way of thinking about labor law, which has a large impact on
the issue of segmentation, that we can and should remove this mental
shackle, and that we can and should as a result move on to a clearer
approach to our issue - one which permits to see segmentation in a new
light. Only then can we get to the real and important question "how much
segmentation do we need and want in labor law?" and to see the idea of
equality as the key to answering it.
With the very use of the word "segmentation," we invoke and deploy,
mostly implicitly, a familiar package of labor law ideas. One central idea is
that the legal definition of "worker" is becoming more complex. New
pressures from, among other things, the demand for "flexibilization" result
in new regulatory/legal categories responding to new forms of work. These
new and varied regulatory categories result in a "segmentation" of legal
rights. That is, we are witnessing a shift from a more or less standard
model of productive relations, which resulted in a more or less
homogeneous legal category, which generated a more or less uniform set of
legal entitlements for all workers, to a new world of productive relations
characterized by multiple forms of acquisition and deployment of labor,
requiring new and multiple legal definitions, and resulting in a
heterogeneous or segmented application of labor law. This occurs in
relation to both individual and collective labor rights.
This all sounds very familiar to Canadian labor lawyers and seems a
fair enough way of capturing what is going on in our field. Judy Fudge
recently wrote explicitly about the problem of segmentation of worker
rights in Canada (at the federal legal level) and, interestingly, in the context
of a Spanish comparison. 2 For those seeking a reasonably up-to-date and
unhappy account of segmentation in Canada, this is required reading. But
in what follows, I wish to start further back in conceptual space and ask
some very basic questions.
The familiar story set out above also carries with it a familiar labor law
history. Simply told it is one that starts in a world in which most productive
activity is carried out under the legal rubric of employment - in a model in
which its pillars are described nicely by Judy Fudge as "the nation state, the
vertically integrated firm, the standard employment relationship, the male
breadwinner and female housewife gender contract, industrial unions, social
democracy.",3 Over time, this model has been put under great stress. One

PRACTICES AND POSSIBILITIES 137 (Joanne Conagha, Richard Michael Fischl & Karl Klare eds., 2002);
Brian Langille, What Is InternationalLabour Law For?, 3 L. & ETHICS HUM. RTS. 47 (2009).
2. Judy Fudge, Self-Employed Worker: A Canadian Perspective on the Scope of Employment
Standards,Labor Rights, and Social Protection: The Good, the Bad and the Ugly, 31 COMP. LAB. L. &
POL'Y J. 253 (2010).
3. Judy Fudge, Labour as a "Fictive Commodity": Radically Reconceptualizing Labour Law, in
THE IDEA OF LABOUR LAW, supranote 1, at 120.
2015] SEGMENTATION OF WORKER RIGHTS

of the most striking changes has been the breakdown of the male
breadwinner female housewife gender contract. In 1960, more than 70% of
Canadian families had two parents with the father in full-time, long-term
employment, and the mother at home raising the children. In 1990, fewer
than 20% of Canadian families had this structure.4 But the other pillars
have been equally stressed.
All of this is familiar-and deeply problematic-for labor lawyers and
for reasons that I believe are clear. But I wish to shed new light on this
issue and believe we can begin to do so by returning to important ideas
discussed some time ago by Hugh Collins.

II. HUGH COLLINS ON SEGMENTATION

The emergence of a new reality and resulting segmentation of worker

rights has a number of familiar legal features which some of our most
observant academic labor lawyers have been noting for a long time. In his
justly celebrated article, Independent Contractors and the Challenge of
Vertical Disintegration to Labour Laws, Hugh Collins commented that
often the new forms of employment-temporary, casual, part time, and
homeworkers-are excluded from labor law protection, resulting in
"segmentation," simply in virtue of "legislative artefact. ' 5 That is, the
relevant legislation could easily be amended to include such workers along
with "normal" full-time employees. It is simply a matter of legislative will
and lack thereof. But Collins also observed that the problem of vertical
disintegration of firms is a real one, noting that "by turning an employee
into a subcontractor the management of large firm substitutes commercial
contracts for employment relations."6 Of course, there is the problem of
false, superficial, or illusory "contracting out," which can be handled by
seeing it for what it is - i.e., "contracting in." 7 But that still leaves us with
the problem of real disintegration. As it is so often the case, Collins put his
finger on the real nature of this problem well before others.
That problem can be seen as follows, and here is where our standard
and often implicit thinking about labor law enters our picture. The standard
account of the mission of labor law is that it exists to protect employees in
their relations with their employers. This protection is required because
employment is viewed as a contractual relationship and contracts negotiated
between employees and employers are characterized by "inequality of

4. Brian Langille, New Plaform, New Paradigm,28 CAN. PUB. POL'Y 133, 137 (2002).
5. Hugh Collins, Independent Contractors and the Challenge of Vertical Disintegration to
Employment Protection Laws, 10 OXFORD J. LEGAL STUD. 353, 354 (1990).
6. Id.
7. See generally Alan Bogg, Sham Self-Employment in the Supreme Court, 41 INDUS. L.J. 328
(2012).
260 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

bargaining power." Labor law comes to the aid of the weaker party and
does so both procedurally and substantively. 8 But if inequality of
bargaining power is the key then it is difficult to see how that very power
cannot be used to avoid the protections the law wishes to provide. This is a
particularly acute problem for common law judges when attempting to
introduce "implied term" protections for employees in common law
jurisdictions, such as Canada. So, for example, in Canada, the common law
provides, by implying a term into contracts of employment, protection to
employees against dismissal without "reasonable notice or pay in lieu of
such notice." 9 This can amount to up to two years' salary. Because the
dominant paradigm is that of contract there is, it seems, nothing to prevent
an employer and an employee from expressly contracting out of this
otherwise to be implied term of the contract. Common law courts may try
very hard to avoid this result through techniques of contract interpretation,
but, at some point, the game is up.' °
The legislature does not have such problem. The most important
section in any piece of "employment standards legislation" is the provision
forbidding any contracting out of its worker entitlements." But even here,
the power of the underlying idea of contract is not to be underestimated.
This is the point that Collins is making. Contract power, if it cannot be
used to contract out of the statutory protections (because of the statute's "no
contracting out" provision), can be used to redefine or reconstruct the
contract as one of "nonemployment" so that the statute does not apply in the
first place, and thus does not have to be "contracted out of." Many others
now see this point.' 2 But it is also true that the legislation can be amended
to include some new category of worker, under some new test. Collins then
turns to this task.
Collins's first point was that some aspects of our labor law are-or
should be-immune to this maneuver. So, for example, under human rights
law it is or should be irrelevant whether an employer refuses to hire
someone, because of his or her race, as either an employee or an
independent contractor. 13 The purposes of our antidiscrimination laws

8. See generally Langille, LabourLaw's Theory of Justice, supra note 1; Langille, Labour Law's
Back Pages, supra note 1.
9. See, e.g., Wallace v. United Grain Growers, [1997] 3 S.C.R. 701 (Can.); INNIS CHRISTIE,
GEOFFREY ENGLAND, RODERICK WOOD & BRENT COTrER, EMPLOYMENT LAW IN CANADA § 14.1 (3d
ed. 1998).
10. See, e.g., Ceccol v. Ontario Gymnastic Federation, [2001] 55 O.R. (3d) 614 (Can.); Wallace, 3
S.C.R.; Machtinger v. HOJ Industries, [1992] 1 S.C.R. 986 (Can.).
11. See, e.g., Employment Standards Act, S.O. 2000, c. 6, s 5 (Can.).
12. See, e.g., Timothy P. Glynn, Taking the Employer out of Employment Law? Accountabilityfor
Wage and Hour Violations in an Age of EnterpriseDisaggregation,15 EMP. RTS. & EMP. POL'Y J. 101
(2011); Noah Zatz, Working at the Boundaries of Markets: Prison Labor and the Economic Dimension
of Employment Relationships,61 VAND. L. REv. 857 (2008).
13. See discussion of McCormick v. Fasken Martineau DuMoulin, [2014] S.C.C. 39, at 8 (Can.).
2015] SEGMENTATION OF WORKER RIGHTS

extend to both cases. That is just to say that the distinction is irrelevant to
the issue at hand. His second point, however, conceded that some aspects
of our labor law are and should be attentive to this distinction, and thus be
affected by a legitimate contracting out, because this "corresponds to
prevalent understandings of 14
the proper scope of responsibility for the
economic needs of others.,
The burden of the article was then to show that often contracting out
results in relations that could and should be seen as just the equivalent of
employment and that employers of subcontractors are often to be seen as
"responsible for the economic needs" of such workers because sometimes
contracting out is just the functional equivalent of employment. (And they
are often undertaken just to avoid labor protections and to shift risk and
burdens to employees.) Further, that the common law tests for labor law
coverage were unable to confront and deal with this reality because they
make the fatal error of deferring to "the parties' choice"-i.e., the
employer's choice normally-of the form of the relationship, i.e., the form
in which employers acquire labor power.
This dilemma is generated by the fact that we need, in his view, the
distinction between employees and independent contractors - at least for
some of the labor laws. But once we allow that truth to stand, then the
doctrine of freedom of contract makes it all but impossible for courts or
others to police the boundaries of labor law. The only way around all of
this is to abandon judicial deference to the parties' (i.e., the employer's)
choice of form. Rather, the decision of where the boundaries lie must be
and is one of "public policy." So far, so good.
But this is where Collins and I part company because, at this point, he
says: "It is always tempting to urge the courts to adopt a purposive
approach." 15 But he then asserts that this is too indeterminate and that more
guidance through a firmer set of criteria is needed. He then goes on to
provide a legal "test," looking at control, risk allocation, and membership in
an organization "in a novel way," to help courts sort out when contractors
are and are not covered by labor law. 16 In effect, he creates a new
"category" of worker but, as far as I can see, and atypically, refuses to give
it a label.

III. ON NOT ABANDONING "PURPOSE"

My thesis is that "purpose" is abandoned here much too quickly.

Purpose, and eventually the idea of equality, is the key to our problem. But

14. Collins, supra note 5, at 355.

15. Id. at 377.
16. Id. at 380.
262 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

there is a vital preliminary distinction to be made. When we talk of the

"purpose" of our labor law, we need to take into account not only the
specific purposes of our various labor laws (collective bargaining,
minimum standards, human rights, health and safety, and so on). We also
need to pay attention to the role played by the familiar account of labor
law's purpose in general, set out briefly above (contract, inequality of
bargaining power, protection of the weaker party, and so on). That is, we
have to pay attention to both our specific and general purposes. Further, as
long as we avoid this point, we will continue to generate more and
inappropriate segmentation. That is the negative point. There is also a
positive point, one that Wittgenstein made. 17 The concept of "employment"
is a "family resemblance concept." This is a basic Wittgensteinian idea.
With such concepts (such as "games") there is no golden thread, no
common denominator, nor unfailing indicia or marker of employment-i.e.,
no touchstone that will always be in place in all cases of employment. Only
a motley of overlapping, to some extent or other, "resemblances." But,
critically, when such concepts are in play purpose and context matter. 18
Again, the large point is this: Important as purpose is, we need to be
aware that we have purposes of two sorts: (1) specific purposes of various
labor laws, and (2) our account of the purpose of our labor law in general.
The idea suggested here is that our view of (2) has been allowed to get in
the way of, override, or block (1). The trick is to get (2), or a certain
version of it, out of the way. This is possible only if we abandon the
narrative set out above--employee/employer, contract, inequality of
bargaining power, protection of the weaker party, etc. - and substitute a
more promising account of "what labor law is for." This is the real project
we need to undertake. If we were to do this, it would be possible to have a
rational approach to our specific labor law purposes and end up with just
the degree of segmentation we want and need.
To explain this point in a concrete way, I shall refer to several
Canadian cases from various labor law contexts. The general phenomenon
to which I wish to draw attention is well known. In these centrally
important areas of labor regulation, such as discrimination law, or health
and safety law, the concepts of "employer" and "employee." even though
present, provide no barrier to the protection of those who should be
protected. Yet, it seems that the significance and potentially far-reaching
outcome of these cases has been largely overlooked.

17. On this point, see Brian Langille, Developments in Labour Law: The 1978-79 Term, I SuP. CT.
L. REV. 323 (1980).
18. Wittgenstein's example: Someone says to me: "Shew the children a game." I teach them
gaming with dice, and the other says "I did not mean that sort of game." Must the exclusion of the game
with dice have come before his mind when he gave me the order?" LUDWIG WITrGENSTEIN,
PHILOSOPHICAL INVESTIGATIONS 70 (1958).
20151 SEGMENTATION OF WORKER RIGHTS

In a recent Canadian case, a truck driver, working for a load broker,

Union of Independent Operators (UIOL), was crushed between his truck
and that of another UIOL independent truck driver. The Ontario Court of
Appeal held that under Ontario's Occupational Health and Safety Act, the
broker had to establish a health and safety committee Under § 9(2)(a) of the
Act, such a committee was required "at a workplace at which 20 or more
workers are regularly employed." The issue before the Court was whether
the independent truck owner/operators was "regularly employed" within the
meaning of § 9(2)(a). The court answered in the affirmative, and the crux
of the reasoning was based on the idea that the legislative objectives of
promoting safe and healthy workplaces should not be frustrated by passing
those objectives through a strainer of legal classifications that, while
possibly relevant to other purposes, have nothing to do with those
objectives. The train to the legislative destination of safe workplaces does
not have a sign "employees only" on its doors.
There are important ideas in play here. First, purposive statutory
interpretation is the key in this sort of cases. Second, legislative objectives
are basic in thinking about most of our labor laws. Third, if we follow these
legislative objectives and apply labor laws to those they should apply to, we
will achieve as much segmentation as we need and should have. Fourth,
this exercise does not require us to come up with new classifications of
workers. We can actually use any term we wish providing we use these
terms in a sensible way, i.e., purposively. This kind of decision provides a
useful lesson to all of our labor laws. In this sort of health and safety cases,
the statute includes some definitions of terms but they do not provide much
help. 19 The task is then to consider what the statute is aiming to achieve. In
general, our courts and tribunals, in such cases, have had no difficulty
putting aside as irrelevant to statutory purpose questions to the issue of
whether "employment" is to be limited to employees, independent
contractors, dependent contractors, or something else.
But this is a lesson, which our labor law in general, and sometimes
even human rights law, are unable to accept because our general labor law
purposes "get in the way." For example, in a recent Supreme Court of
Canada case, the Court held that a law firm could overtly and intentionally
discriminate on the basis of age, in the face of a clear human rights
prohibition, against one of its equity partners. 20 This is because, in the view
of the Court, the partner/firm relationship was not one of "employment."
Only lawyers who have spent a lot of time defining "employee" and

19. They are often exercises in "striking circumlocution." Re Telegram Publishing, [1977] 16
O.R. (2d) 369, 377 (Can.).
20. See supranote 13; see also Brian Langille & Pnina Alon-Shenker, Law Firm Partnersand the
Scope ofLabour Laws, 2015 CAN. J. HUM. RTS. (forthcoming).
264 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257
"employer" could even entertain the idea that the antidiscrimination
provision did not apply to law firms in their relations with their partners and
that this one work relationship was to be carved out of the universe of such
relationships as the last bastion of permitted overt discrimination Only by
clinging to the basics of the familiar account of labor law-that there has to
be relationship of economic dependence and inequality, which the
legislation was concerned to regulate-does this idea achieve any
momentum. And the effect is to insert this general purpose in between the
statute and its goals. The result is a legally irrational reading of the human
rights legislation. (And it would be the same result if the case had been a
health and safety one.)

IV. FROM THE TOP OF THE LABOR LAW FOOD CHAIN TO THE
BOTTOM: "WORKING ON THE CHAIN GANG"

Let us turn from the case of law firm partners and human rights laws to
examples from the heart of the problem identified by Hugh Collins. These
are the problems of the vertical disintegration of firms and the construction
of chains of contractors, and subcontractors, sub-subcontractors, and so on,
with the result that those who labor at the bottom of the chain have, it is
said, no labor law connection to those at the top of the chain. The poster
industry here is apparel.
Again, we have to attend to Hugh Collins's question: Are there not
some labor rights that are appropriately tied to some legal frameworks for
providing work and not others based on what Collins called "prevalent
understandings of the proper scope of responsibility for the economic needs
of others? ' 2' One way of responding to this question is to recall the
relatively recent tragedy at the Rana Plaza garment factory in Bangladesh in
which over 1,100 workers died when their workplace collapsed. This event
received a lot of attention in many places, including Canada, in part because
one of the labels being sewn there was a Canadian one ("Joe Fresh"). The
reaction of the Canadian public reveals "prevalent understandings of the
proper scope of responsibility for the economic needs of others," at least the
"prevalent understanding" among the public. Their view was that the
Canadian firm had a lot to answer for.
But it is difficult, it appears, for our law to see it that way. We have a
clear example of how the law has its own "prevalent" understanding in such
cases and which makes our point about the source of this problem. The
case is simply an example of a modem label driven production chain of
contractors, sub and sub-sub, contractors producing blue jeans for major
brands, like J. Crew. At the bottom of the chain was an immigrant worker

21. See supranote 14.

2015] SEGMENTATION OF WORKER RIGHTS

in Toronto (although the chain of contracts extends to China and back)

sewing jeans at home and being paid by the piece. Her pay rate was in
violation of many statutory rights of Ontario workers. And then the sub,
sub, subcontractor who is said to be her employer (and thus the other party
to a specific sort of contract characterized by a certain morality and
corresponding "to prevalent understandings of the proper scope of
responsibility for the economic needs of others") is a "fly by night"
operation that does not pay at all and does not show up to defend in legal
proceedings. These are the facts of the much discussed Canadian case, Lian
v. J. Crew, in which J. Crew avoided liability by convincing the court that
the interesting question was whether they were in an employment
relationship with Lian.22 But why does that question arise here and not in
health and safety cases? Should it? Our gut legal instinct may be that it
should - but that may just be testament to the power of our standard view.
The suggestion here is that the purposes of pay protection legislation do not
need to be so moralized. Indeed that question here should be, again, of the
sort identified above - "what is the mischief?" and then "who helped create
the problem, who benefited from it, and who is in a position to do
something about it?" We need to ask a sensible, purposive, rational,
pragmatic, nonmoralized question about deployment of responsibility,
incentives and relationships that are fairly remote from any standard notion
of "employment." If we ask that question then it is hard to see why the
most effective and just method of enforcement is not to make J. Crew
jointly and severally liable. And, rather amazingly, this was the rare
example in which the statute did not limit its definition of "employer" to
terms of striking circumlocution and actually had very broad language on
the idea of "employer" - making the court's placing the hurdle of the
morality of traditional employer/employee relationships even more puzzling
and problematic.23
Note that the argument is not that there is no general morality and
picture of what of labor law is trying to do. (Labor law needs and will have
a constituting narrative.) Rather the argument is that if we have the wrong
narrative, it will get in the way of what we are trying to do. The right one,
suggested below, will not.

22. See, e.g., Lian v. J. Crew, [2001] 54 O.R. (3d) 239 (Can.); Fudge, supra note 2.
23. Under the act, an employer is an individual from a wide range of terms (owner, proprietor,
manage, superintendent, overseer, receiver, or trustee) who has "control or direction of' or is
"responsible for" the employment of a person. Moreover, where employers outsource work to other
businesses with the intention or effect of undermining the Act, the original employer can still be
considered an employer. Employment Standards Act 2000, S.O. 2000 c 41 s 1 & s 4 (Can.) and in Lian,
Employment Standards Act, R.S.O. 1990, c E. 14 (Can.).
266 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

V. FROM HERE TO THERE: WHAT Do WE NEED TO DO TO GET

OUT OF OUR OWN WAY?

A central element of our difficulty is an idea deeply embedded in our

standard labor law thinking, which is the idea that labor law is about
regulating a relationship of a certain sort. The idea I am after is both the
idea of a relationship of a certain sort, but more importantly, the very idea
of a relationship at all. Why do we see the starting point of labor law as one
of relationships? The idea of a relationship does seem basic. This can be
shown in a number of ways. But consider the recent proposal of Harry
Arthurs. Unlike, for example, Guy Davidov, who is quite happy with the
idea that we need a new paradigm for labor law and suggests that we
reconceive our subject as part of a larger category of "the law of economic
subordination and resistance. 24 This is a possibly a wonderful and large
rewriting (via expansion) of our narrative. But even Arthurs writes: "It is
impossible, however, to think of a definition of labour law that is not
centrally concerned with relations between workers and employers., 25
But is that true? At the core of that question is one that has also been
raised by other serious students of our discipline - what would it mean to
have a worker-centered conception of labor law? 26 The idea that I wish to
work toward is that a worker-centered conception of labor law is one that
does not seek a relationship (of employment, or independent contracting, or
dependent contracting, or whatever) as the starting point of its constituting
narrative. Is it possible to focus on the worker not as a party to a
relationship or set of relationships, but simply as the center of our
normative concerns and our labor law universe? How might we get to that
point? By a long road.

A. The StartingPoint: Labor Law's ConstitutingNarrative- The Old

and the Needfor a New Version
This road begins with some reminders about labor law as a legal
category, the idea of a constituting narrative, and the argument that our
familiar narrative (already set out above) needs to be revisited. Not just in
general - so that labor law can secure the future it is destined for - but in
light of our specific concern about "segmentation." A key idea in my
thinking about the basic purposes of labor law is a "constituting narrative,"

24. Guy Davidov, Special Protectionfor Cleaners:A Case ofJustified Selectivity?, 36 COMP. LAB.
L. & POL'Y J. 219 (2015).
25. Harry Arthurs, Labor Law as the Law of Economic Subordinationand Resistance: A Thought
Experiment, 34 COMP. LAB. L. & POL'Y J. 585, 586 (2013).
26. MARK FREEDLAND & NICOLA KOUNTOURIS, THE LEGAL CONSTRUCTION OF PERSONAL WORK
RELATIONS 316, 327 (2011).
2015] SEGMENTATION OF WORKER RIGHTS

which makes labor law possible.27 The basic problem we face is not that we
lack such a narrative but rather that that labor law has a very powerful and
firmly entrenched narrative. This narrative has passed its "expiry date," and
a new narrative is needed. I have argued that Sen's conception of human
freedom and the related Capability Approach are central to any new
understanding or account of labor law with any viable and valuable long-
term future. Subjects like labor law do not obtain whatever coherence they
have in the manner in which many legal fields do - that is, in virtue of a
central organizing idea or concept (such as tort, contract, or trust). Rather,
subject matters like labor law make their way in the world by being able to
justify a legal focus upon a dimension, or slice, of real life. Such
justifications must and do consist in three parts. First, such accounts must
provide a clear empirical description of the singled out dimension, or slice
(i.e., the field) - say, work or employment. Second, it must identify the key
conceptual building blocks necessary to legally frame the real world of
work - e.g., "employer," "employee," "contract of employment," and so on.
Finally, such accounts must take a normative claim, that is, a claim that
justice requires us to attend to the overall legal regulation of specifically
this dimension of life - say, that justice for workers will never be secured in
employment relations because of inequality of bargaining power between
employers and employees, which makes contracts of employment very
unlikely to be fair. Thus, the narrative continues, the law intervenes in two
ways, procedurally (by protecting collective bargaining) and substantively
(by directly regulating the content of the contract to provide minimum
conditions).
When these three elements are in place, then we have a self-
constituting narrative for the field, which eventually becomes the "received
wisdom" that every labor lawyer knows in a deeply implicit way. It
explains what cases to read, which controversies are labor law
controversies, what labor law firms and government departments and labor
lawyers are in business to do. And, as I have also argued, all this looks
increasingly like a large error in thinking. This framework was useful for a
while, but it is out-of-date empirically, conceptually, and normatively.
Empirically because, as many labor law scholars have documented, the
world of work that existed when labor law was called in to being (Taylorist,
Fordist, integrated firms, internal labor markets, male breadwinners, etc.)
more and more accounts for less and less of our world. Conceptually,
because the basic conceptual building blocks of the standard account-
employee, employer, etc.-are inadequate to the task. More than that,
current efforts to deploy these concepts are often exercises, as Hugh Collins

27. Langille, Labour Law's Back Pages,supra note 1.

268 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

has shown us, in chasing one's shadow made necessary by the incentives
the very concepts offer for their own legal avoidance. Normatively,
because the idea of "inequality of bargaining power" (or in the ILO way of
putting it "labor is not a commodity") specifies neither a morally robust nor
a positive account for our interest in the subject.
My view is that our first, in the sense of most basic, problem is our
fixation upon an inadequate normative basis for our labor law. And, as
suggested at the outset, that Sen's ideas about capability (and human
freedom) provide the basis for a fundamental thinking of our understanding
of the purposes of labor law - one that leads us to a quite radical and more
positive account. Now, the question is - how does the idea of capability
help labor law in its time of normative need? What would a Senian account
of our labor law look like? What does the Capability Approach (the CA)
bring to this understanding of labor law? And what kind of impact could it
have, and has it had, on this nice little package of views, which are so
familiar to labor lawyers?
To begin, I believe that there are two types of understanding in play, in
the labor law theory circles, about the possible relevance of the CA to our
account of labor law. The first uses CA to explain, with perhaps greater
sophistication and analytic rigor, what labor lawyers have been saying to
themselves all along. It is way of rearticulating-in compelling language
used by political theorists and development specialists-the received
account we have just reviewed. The CA can capture and repackage the idea
of "inequality of bargaining power," and what labor law has been doing and
should do about it, in a more complex and up-to-date way. This may be
useful, but it is not at all threatening to labor law's received wisdom. To
the contrary: to the extent this take on the CA expresses labor law's
historical primal impulse in more general and accepted theoretical terms, it
reinforces it. Call this the "reinforcing view." Here is no challenge to labor
law's domain of activity or its central concepts. This is so because there is
a change in description of labor's historical normative stance, but not in the
basic normative stance itself.
But there is a second view that is not compatible with the received
account of our labor law and which sees the CA as offering a radical and
new challenge to, and account of, the purposes of labor law. Call this the
"reimagining view." On this view, everything changes - including the
scope or empirical domain of labor law's concerns and its central concepts.
"Everything" changes because all of the other questions of labor law (who,
what, where, when, how?) flow from the answer to the normative question
"why?" Everything, including our problem with "segmentation." I begin
with some remarks about the origins and career of the CA.
2015] SEGMENTATION OF WORKER RIGHTS

B. Human Freedom and the CapabilityApproach

The literature on Capability, Capabilities, Capability Theory, the
Capability Approach, and "Capabilities Approach" (the CA) is very large
and growing quickly. As is the volume of work considering the relationship
of the concepts of human freedom and agency, on the one hand, and
"capability" on the other. There is an international association-the Human
Development and Capabilities Association-dedicated to this intellectual
endeavor.28 Much of this writing concentrates on connections and
differences between the views of the two main theoreticians of the CA -
Amartya Sen and Martha Nussbaum. Some of this writing is done by
leading political philosophers and development theorists. Some of it is
highly formal, but some of it is accessible to nonexperts. This is true most
importantly because, thoughtfully, both Sen and Nussbaum occasionally put
forth their views in nontechnical ways intended for a more general
readership.2 9
The CA plays a large role in two spheres of intellectual endeavor -
development theory and pure political theory. It has had, so far, and in spite
of some serious contributions, only a limited impact. 30 But within the legal
sphere, it has been in labor law where the CA has attracted the most
attention. In development theory, the CA's central accomplishment has
been to reformulate our ideas of what development might consist.
Specifically, it offered an alternative to the standard metric of development
that, among others things, cohered with the Washington Consensus. That
metric is, as Nussbaum puts it, "the quality of life in a nation was
improving if, and only if, Gross Domestic Product (GDP) was
increasing. ' '31 The focus of the CA, on the other hand, was on "What
people are actually able to do and be," or "what real opportunities are
available to them?" 32 This argument for a change in view as to what "really
counts" has met with success in the "development theory world", perhaps
most notably in the advancement of the idea of the Human Development
Index of the UNDP. Sen has been writing about this idea for decades in
countless articles and books and, as one commentator put it, his CA "has
emerged as the leading alternative standard economic frameworks33 for
thinking about poverty, inequality, and human development generally.,
28. HUMAN DEVELOPMENT & CAPABILITY ASSOCIATION: MULTI-DISCIPLINARY AND PEOPLE-
CENTRED, http://hd-ca.org/ (last visted Dec. 19, 2014).
29. See key examples: MARTHA C. NUSSBAUM, CREATING CAPABILITIES: THE HUMAN
DEVELOPMENT APPROACH (2011); AMARTYA SEN, DEVELOPMENT AS FREEDOM (2000).
30. E.g., Simon Deakin & Frank Wilkinson, The Law of the Labour Market: Industrialization,
Employment, andLegal Evolution, 60 CORNELL ILR REV. 142 (2006).
31. NUSSBAUM, supra note 290. at ix.
32. Id. at x.
33. David A. Clark, The Capability Approach: Its Development, Critiques, and Recent Advances,
in THE ELGAR COMPANION TO DEVELOPMENT STUDIES (David Alexander Clark ed., 2006).
270 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

On the other hand, in playing its part in pure political theory, the great
achievement of the CA has been to open up some intellectual space in the
grand debate about how we are to think about the justice of particular
arrangements. In this regard, the CA seeks to distinguish itself both from
theories that focus on outcomes (in terms of utility or wealth) and those
theories, such as Rawls's, which focus on inputs (primary goods). So, not
primary goods nor utility, but rather capability. Why? Capability is clearly
distinguishable from actual doing or being something - these are
"functionings" in the language of the CA approach. What counts is not
what persons do or are, but what they are capable of doing and being -
capable of doing and being and not merely formally free to choose. Here is
why the stock of resources available to them, or primary goods, should not
be the focus of concern: because different people are different in their
ability to "convert" the same stockpile of goods into actual "functionings"
in the world. A person in a wheelchair may need more resources to achieve
the same actual functioning (moving around) than a person not in a
wheelchair. They have a handicap in converting resources into
"functionings handicap." This is an important idea.
So too "utility" misses the mark as the basis of comparison of "how
well a person's life is going" for the CA, and for many reasons, some of
which as Cohen explained:
[T]he trouble with a metric of utility is that it is blind to the fact that
people adjust their expectations downwardly when in poverty and
upwardly when in wealth. This and other subjective vagaries mean that
utility is not the right quantity to focus on: it is unfair to a poor person to
resource him less because he has developed modest tastes and therefore
needs less wherewithal to achieve a given level of welfare. What
matters centrally is the causal intermediary, the effect of goods that
causes utility: functioning, and capability, as such.34
In the language of the CA, then, the key focus is on capability, and it is
distinct from the resources or inputs, on the one hand, or actual outcomes in
the world (functionings) on the other. Capability lies in between. And the
key idea is that real capability depends upon not only what resources we
have at our disposal but how well we can actually put them to use in the
world. This is the idea of "conversion." That is, as Sen explains, we need
to attend to not only the resources, or on Rawls's primary goods that a
person has, but also to "the relevant personal characteristics that govern the
conversion of those primary goods into the person's ability to promote her
ends., 35 He offers simple examples of a disabled person, mentioned above,
and of an "older person or a person more prone to illness can be more

34. G.A. Cohen, Amartya Sen's Unequal World, ECON. & POL'Y WKLY., Oct. 2, 1993, at 2156.
35. SEN, supra note 290, at 74.
2015] SEGMENTATION OF WORKER RIGHTS

disadvantaged in a generally accepted sense even with a larger bundle of

primary goods. 36 Functioning in the world are conceived of as "the things
a person may value doing or being" and may range from "elementary ones,"
such as "being adequately nourished," to very complex ones, such as "being
able to participate in the life of the community and having self-respect".37
Capability is, therefore, a "kind of freedom: the substantive freedom to
achieve alternate functioning combinations 38
(or less formally put, the
freedom to achieve various lifestyles)."
Other ideas are often deployed in this analysis, such as the idea of a
person's "capability set." This can be seen as follows: "While the
combination of a person's functionings reflects her actual achievements the
capability set represents the freedom to achieve: the alternative functioning
combinations one can choose., 39 For our purposes, the key is the idea of
the distinction between formal and substantive freedom. And Sen's view is
quite radical; he is saying that even if we all had an equal set of resources,
we would not have equal freedom. This because of our different ability to
convert those resources to functionings we choose. So the idea of
"conversion factors" looms large. In the examples used by Sen, he speaks
of "personal characteristics that govern the conversion" of goods to
functioning. But conversion factors are of different sorts. Some are indeed
personal; others are social, institutional, and legal. Nussbaum has a very
useful way of putting this point. She speaks of "basic capabilities,"
"internal capabilities," and "combined capabilities." Basic capabilities are
"the innate faculties of the person that make later development and training
possible. ' 4° Internal capabilities are the "not fixed, but fluid and dynamic
characteristics of a person (personality traits, intellectual and emotional
capacities, states of bodily fitness and health, internalized learning, skills of
perception[,] and movement)". As she puts it, "one job of a society" that
"wants to promote the most important human capabilities" is to support the
development of internal capabilities through education, resources to
promote physical and emotional health, support for family care and life, a
system of education, and much more., 41 But this is not enough, for not
only does a society need to nurture internal capabilities, it must also attend
to the social, political, and economic conditions in which "functioning can
actually be chosen.""2 This is an obvious point.

36. Id.
37. Id. at 75.
38. Id.
39. Id.
40. NUSSBAUM, supranote 290, at 24.
41. Id. at21.
42. Id. at 22.
272 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

Two simple examples show the strength of the idea of combined

capability. First, "many people who are internally capable of participating
in politics are able ... to do so in the sense of combined capability: they
may be immigrants without legal rights[.]" On the other hand, there are
states in which everyone is legally free to participate in politics "but terrible
at delivering the basic health care and education that would enable the
means to do so."'43 Thus there can be both formal and informal but
substantive restrictions upon citizens. (But recall what, on the CA, counts
is not what people do (their functionings)-i.e., whether they run for
parliament of not-but their capability, i.e., having a real substantive
freedom to choose what to do.) With the idea of combined capability,-
that real freedom is a function of first, "internal capabilities" and second,
external economic, social, political, and legal circumstances-we are in a
position to see a basic link between labor law and the CA.
We should remember that at the core of Sen's rejection of both the
primary goods and the utility approach is a more basic idea that Sen was
clear about in his 1999 classic, Development as Freedom, and to which Sen
has returned in his 2009 book, The Idea of Justice.44 First, that "what
stockpile of goods you start with" and "where you end up" can only be part
of the story. It is the freedom, i.e., real, substantive, human agency as
measured by real capability, which is the proper focus of inquiry. But from
the vantage point of real freedom and human agency, it matters not only
what a person's capability set is, it also matters how this "capability set," as
opposed to the actual choices of what to do with it, itself came about. As
Sen puts it, there is an "opportunity aspect" of freedom, but there is also a
"process aspect" of freedom. 45 This is another way, as I see it, of capturing
the idea basic in Development as Freedom that freedom is the destination,
but also the path. This is what can be seen as Sen's "double helix."
In The Idea of Justice, Sen reinforces the importance of agency and
freedom as opposed to outcome or achievement. But for now, we should
draw attention to the obvious attractions of the central features of the CA,
common to both Sen and Nussbaum, for labor lawyers. When we do so, we
can see the source of an intimate connection between the basic ideas of
capability and our standard account of labor law; so intimate that it can be
mapped onto that account and "reinforce it."

43. Id.
44. AMARTYA SEN, THE IDEA OF JUSTICE (2009).
45. Id. at 296.
2015] SEGMENTATION OF WORKER RIGHTS

C. Labor Law and the CapabilityApproach: The Reinforcing View

The question is what is the significance of the "capabilities approach"
for labor law? It is a new way of stating something that labor lawyers have
known for a long time. Perhaps it states it with more intellectual rigor, but
this is labor law's old constituting narrative, its received wisdom, dressed in
new philosophical garb. What is it that labor lawyers have always known?
As we have briefly noted above, it is that commitment to the ideas of formal
freedom, or formal equality, between workers and employers-or capital
and labor-advocated by libertarian rights theorists, or welfare maximizers
of the neoclassical kind, is either an intellectual mistake or a ruse.
Blindness or indifference to inequalities in distribution of resources or
power betrays their own commitments to, humans as we find them in the
real world. This is something many people have known and have said over
many years, and it is fundamental to the constituting narrative of labor law;
it is basic to its theory of justice.46 On that narrative, labor law addresses
this power imbalance in two ways - substantive rewriting of labor contracts
(via Human Rights, Health and Safety, Minimum wage laws, etc.) and
procedural reregulation of the bargaining process to increase the bargaining
power of workers (by protecting and promoting collective bargaining).
Viewed from this perspective, one can easily read the CA in the
following way: talk of "conversion factors" and real "capability" is a way of
articulating, or better capturing, or specifying in a more sophisticated way,
the meaning of the old idea of "inequality of bargaining power." This is, in
my view, how Sen arrived on the labor law scene. It is easy, I think, to see
labor law in just this way. The notion of combined capability, with its
focus on external conversion factors, such as law, maps directly onto labor
law and its story of inequality of bargaining power. The general law of
contract, while formally neutral and equal, was a bad "external conversion
factor" if a person happened to have no resources, i.e., no bargaining power.
Therefore, labor law steps in to solve for this problem by rearranging the
rules of contract. It is a change in, a rewriting of, this legal and external
conversion factor confronting workers. This is done procedurally (by
legislation protecting collective bargaining) and substantively (by
legislation establishing minimum terms). The CA gives us a new language
for an old story. A new way of talking about what we have been doing all
along. Old wine in new bottles. But the real issue is whether we can get
wine ofjustice from the water of the old narrative?

46. Langille, LabourLaw's Theory ofJustice, supra note 1.

274 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

D. The Reimagining Potentialof the CA

The reimagining view, on the other hand, reads Sen differently and
sees the critical move not in the idea of Capabilities (including combined
capabilities) as useful as that may be. Rather, the exciting thinking is in a
series of radical first moves, which answer the question: why is focusing
upon Capabilities important? For Sen, the point of all our striving is not the
construction of markets, global integration, increasing gross domestic
product (GDP) per head, nor the creation of a comprehensive domestic or
international labor code, for their own sake, rather, we do these things, and
they are possible instruments for, expanding people's capabilities to live
longer, better, and more meaningful lives. There are different kinds of
human freedoms (most critically political, economic, and social), which
interact in empirically complex ways to advance the overall cause. This is a
unified view that urges us to see free markets as part of the goal of
expanding human capacities, and is an important means to that end. It is, in
fact, a vital reminder of the moral foundations of market - of the core
values upon which they are constructed and which they are designed to
serve. It is not a resistance movement (Social Justice v. The Market). It is
an "inside job," which relocates the ground on which markets stand and
sees it as sharing common with, indeed the same ground as, "social justice."
Markets are just an aspect and means of human freedom and are to be
judged and used as such. On this view, it is not possible to formulate many
of the questions that we have thought made sense. We cannot ask whether
freedom is an inconsistent "development," for it is constitutive of it. So,
Sen's great achievement lies in his demand that we think about
development and human progress at the beginning by sorting out our true
goals from the means we use to achieve them. This is a basic and important
point. This is not merely a story of resisting inequality of bargaining power
in the labor market. It is about repositioning the labor market in our
thinking along with other dimensions of human freedom.
This forces us to rethink our paradigm from the ground up. Our
problem is not inequality of bargaining power in the negotiation of
contracts between a subgroup of those who engage in productive activity
called employees and employers. Only by seeing clearly what our true ends
are, can we rearticulate labor law's narrative. And our goals are much
broader and more important than the received narrative can comprehend. It
is not taking contract or the labor market as an independent given and
reacting to it. It is understanding contract and the market, in the first place,
and in terms of human freedoms. As a result, all of our narrative--our view
of the empirical domain of labor law, as well as the central concepts
appropriate to that world-will change in light of this new normative
2015] SEGMENTATION OF WORKER RIGHTS

reorientation. It is the much more general and radical idea of advancing the
cause of human freedom and liberating human freedom in its own cause in
what we call work, or "productive activity."
In a recent article, Robert Salais, insists on this deeper approach. In
Labour and the Politics of Freedom, Salais writes:
[L]et us transport ourselves to a world where labour as social practice
has been reconfigured along the lines of the Capability Approach; in
other words, a world in which labour has been transformed by
implementing the politics of freedoms elaborated by Amartya Sen in his
book Development as Freedom. "Development should be grasped as a
process of expanding the real freedoms enjoyed by individuals."
Freedoms become the ultimate ends of development and, in the same
process, the primary means to achieve those ends. The quotation is
well-known, but do we47 truly understand its implications for the
transformation of labour?
This is the properly formulated, right question. Salais notes that it
opens up a perspective that is "radical, evident, and new., 48 It is, for me,
most importantly new because labor organizations have seen their role as
"resisting" market freedom. The received wisdom of labor law is a tale of
justice against freedom. Freedom is the problem to be solved, not the goal
to be achieved. As Salais puts it, "The vast majority of [labor]
organizations has adopted an instrumental conception of work from which
liberty was excluded. 'A9 Adding, "[i]n this view, the tasks for the labour
movement, basically, would be to follow the movement of capital, be led by
it and struggle within the process for the conquest of the state and political
power., 50 There was a shared "text" among both reformists and
revolutionaries, "based on the same preconceived idea that freedoms are of
no value for labour and claiming their real development would only serve
capital and not labour."'" This is a nice way of capturing a deep truth about
labor law's received wisdom. He adds, beautifully:
History shows, retrospectively, that it is not (and ultimately has never
been as such) a question of finding a third way between capitalism and
socialism, but simply of finding the way. More and more voices and
collectives are now aware of this state of affairs in and beyond labour
movement organisations. The question is, in practice, progressively
enlarged to the issue of what mode of development. Among other
possible ones, the Capability Approach is a serious candidate here. For
its worth is to embed the emancipation of labour into a wider and

47. DEMOCRACY AND CAPABILITY FOR VOICE I (Ota De Leonardis, Serafino Negrelli & Robert
Salais eds., 2012).
48. Id.
49. Id. at 2.
50. Id.
51. Id.
276 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

possibly more tractable process, that of implementing a capability-based

mode of development.
Finally, the key point enlarged upon:
The economic, social, and financial dimensions, previously separated,
should converge and gradually merge into something that has to be both
economic and social, that is socio-economic in the full sense of the term,
in which the financial has to be placed at the service of socio-economic
concerns for developing capabilities. This follows from the process
according to which the expansion of effective freedoms becomes both
the end (what used to be called "social", now refrained in the wider
conception of sets of effective freedoms) and the means of development 53
(in other terms the old "economic," now refrained as socio-economic).
So to sum up, and in my terms, labor law's basic narrative needs to be
rewritten in a way that takes capability and real human freedom as its goal
and a central dimension of the way there. If we could do that, then we
could remove the barriers to our thinking that the normal account of labor
law-which insists that it is all about regulating certain sorts of
relationships-places in our way. Cases such as Faskens and Lian would
appear to us unobstructed. We could then have a clear road, one that would
permit us to write and interpret labor laws in a purposive way, and one in
which our general account is not at war with what we are trying to do with
specific labor laws. This is a large task.

E. A Starting Point on the Road to a Worker-CenteredLabor Law

If we could reformulate our account of labor law as suggested here,
then we would end up with a worker-centered labor law. One that does not
seek, as its starting point, a certain sort of relationship to be regulated. To
escape the confines of labor law's received wisdom and to recast its
constituting narrative we need to raise our sights beyond the idea of
reacting to labor market unfreedom generated by inequality of bargaining
power. We also need to go beyond an understanding of the CA as merely
repackaging that familiar account. If we were to do so, we would start our
labor law thinking with something other than a relationship in need of
remedial regulation in the name of inequality of bargaining power. This is
the result of taking humans and their capabilities seriously. Relationships,
market or otherwise, and non-relationships (the informal sector, producing
goods on your own, and so on) are understood in the same way. There is no
need to find a relationship of any sort to start our normative engines or
engagement.

52. Id. at 3 (emphasis in original).

53. Id. at 4.
2015] SEGMENTATION OF WORKER RIGHTS

So, if we start with that simple account of labor law, where do we end
up? First, we have recalibrated our normative account. This is the vital
point. This is not an account about inequality of bargaining power in the
negotiating of contracts between employees and employers. This is not an
account of resistance to market power taken as a given. It is an account that
invites us to not only see market ordering as a tool but one whose
deployment stands and falls on exactly the same normative foundation as
our efforts to structure it via labor law. This is not a story of resisting
markets; it is a story of human freedom. The import of a change in our
answer to the question "why," and formulating our goal in terms of the CA
understood not as a repackaging of inequality of bargaining power, that is
not as a restatement of the old narrative of labor law, and the understanding
of the CA as a way of rearticulating our ends in terms of real human
freedom, is sweeping.
The question of labor law is simply the problem of the advancement of
the cause of human freedom. What labor law should we have? The CA, in
justificatory mode, gives us an answer to that question. Labor laws can add
to, or subtract from, the existence of real combined capabilities, of real
human freedom, of real ability to lead a life we have reason to value. They
can liberate or constrain. The normative stance here is straightforward - we
should be adding, not subtracting. Liberating, not constraining.
What are the consequences of taking such a view? If we were to take
this new normativity as central to labor law's self-constituting narrative,
then everything changes, including the domain of labor law and its central
concepts. The contract of employment ceases to be the center of attention
and our central platform for the delivery of labor law. We no longer need to
seek employees negotiating with employers in an effort to remedy
inequality of bargaining power. We are permitted to see that the very
concepts of employee and employer are now often a barrier to the
realization of our goals in much of the modem economy. This in turn
would reverse the incentives that drive much of the creation of forms of
work, which (intentionally) lie outside the traditional employment model.
We are able to understand informal labor markets. The domain of labor
law includes all that bears upon the deployment of human capital
(understood in Sen's way). Education is the key to all capabilities and to
human capital. But so is the law, which governs the deployment of human
capital. Examples are obvious - we would liberate pensions from
individual employment relationships; childcare would clearly be a labor law
issue. But the focus of this Article is specific, and it is the impact of getting
the old narrative out of the way, and a better narrative in place, upon the
problem "segmentation" of labor rights.
278 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257

VI. BACK TO OUR QUESTION: How MUCH SEGMENTATION DO WE

WANT AND NEED IN LABOR LAW?

For current purposes, this new way of thinking liberates us from a

slavish devotion to the concepts that were essential to labor law under the
old narrative - the concepts of employee, employer, and the contract of
employment. We could follow the lead of our human rights and health and
safety cases (Faskens excepted) and go from statutory purposes to rational
result without passing though the further irrational filter of a demand for a
certain sort of relationship and have a coherent explanation of why that
makes sense in terms of advancing the cause of human capability through
the construction of combined capabilities. The idea of the law of the
deployment of human capital/human freedom provides the entire normative
framework required for an account of labor law. And it does not get in our
way.
What does it mean in terms of real cases? As our discussion of
Faskens and Lian, and the human rights and health and safety cases makes
clear, most of the time the change of thinking recommended here just gets
the old ideas out of the way. It removes a barrier. The purpose of human
rights law, understood in the light of our general purpose and understanding
of labor law, now simply flows free of obstruction toward the required
result, as it should. So too in Lian. The statute, as drafted, is allowed to
achieve its scope as defined by its purpose (and, in this case, permits the
broad statutory language actually in place to be understandable and
useable). This does not mean that all of our statutes are perfectly drafted.
But many are because they have "non-definitions" that use nonspecific and
neutral terms (e.g., employee), which can be deployed purposefully. Others
may be drafted in a way more concretely tied to existing framework of our
standard account here rejected. In such cases, we have a metric for reform.
Some statutory provisions, as in Lian, can be seen as leading the way and
setting a good example of purposive thinking in light of sound purposes,
both general and specific, which we can now see as aligned rather than
crossed.
Finally, it is this way of proceeding that permits us to see that the idea
of equality is central. Equality does not demand equal treatment, but rather
that we have a good reason for treating people differently. It requires, as its
basic demand, the provision of relevant reasons for inclusion and exclusion,
which is in fact a demand for purposive reasoning.54 Equality thinking is
the enemy of bad segmentation. It is a way of seeing what is wrong with
the Faskens and Lian cases. It gives us the legal language we need to get to

54. Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV.
341 (1949).
20151 SEGMENTATION OF WORKER RIGHTS

the root of what is wrong and to see the impact our old ideas are having in
terms of segmenting our labor law. We now see that they involve irrational,
i.e., unjustified, differential treatment. The law distributes the legal
structure necessary for combined capabilities unequally. In some cases,
there is a constitutional argument in the case of misdistribution of the legal
instantiation of a basic labor capability, such as freedom of association,
which this is not permitted in law. 55 But in many cases, the equality
argument proceeds legally without such constitutional underpinning and
simply with the logic of the demand of the idea of equality. This is the
demand for relevant reasons for inclusion or exclusion from our labor laws.
This constitutes a demand for as much segmentation as we ought to have,
given what we are trying to do. And in the sorts of cases we have been
examining, this would mean much less segmentation than we are currently
visiting upon ourselves by adhering to our dominant, but inadequate,
account of labor law.

55. Brian Langille, The Freedom ofAssociation Mess, 54 MCGILL L. REv. 277 (2009).
280 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 36:257