By: Max Fattal
Volume IX – Issue I – Fall 2023
Introduction
There’s a certain futility in the process of examining what has gone so wrong for workers over the past half-century. On the one hand, essentialist explanations blaming an intertwined trifecta of neoliberalism, globalization, and flexibilization are fundamentally adequate but lack the substantive rigor of a full explanation. On the other hand, diving into specific causes, observing ossification in the United States, new anti-union authoritarianism in Britain, and a host of other individual policy and corporate shifts across the world lack the sweeping narrative to make the argument click. This essay attempts to reflect the dilemma and propose a novel explanation for labor degradation, differentiating between the process of labor degradation as a practical policy project and as a rhetorical one. Identifying the well-documented reality that unions and collective bargaining agreements elevate labor standards and strengthen workplaces (even beyond the workplaces they cover), this essay draws a link between rhetorical concessions made by employers or corporations and reductions in unionization (or degraded labor standards tied to reduced unionization). [1] It begins by introducing the employment relationship, its origins in master-servant legislation, and its evolution (as exhibited through Amazon’s use of “associates.”
Next, it discusses the rise of Human Resource Management, and critically examines its role not as an elevator of standards, but rather as a preemptor of unionization. Finally, it tackles the fissured workplace, questioning the promises made by franchising and Sharing Economy platforms in particular, and examining the practical consequences such failed promises have on workers. Through the rise of neoliberalism and globalization, both facilitating flexibilization, the most fascinating phenomenon has been the persistent denial of work degradation, the shifting of goalposts, and the reframing of management-side solutions as beneficial to workers. The shifting nature of work takes a Trojan Horse quality, where workers find themselves forced to trade away the fundamentals of meaningful, well-paying work for rhetorical (and often unfulfilled) concessions, all explicitly designed to stand in the way of progress towards the former
I. Development and Evolution of the Employment Relationship
The employment relationship as a concept in Anglo-American law finds its origins primarily in the pre-capitalistic master-servant relationship which reflected prior dynamics of class control and rigidness. As early capitalism developed throughout the 18th century, however, those previous methods of control were rendered archaic by the economic system’s emphasis on wage labor and ownership of the means of production. [2] Therefore, it was during the 1700s that a new strand of laws were developed in order to coerce workers in the new industries industrialization was creating. The result, besides the precise degradation of workforce conditions, was an early development of the employment definition. [3] Broadly speaking, the legislation which would come to define employment (both protective and restrictive), was oriented around “an unprovided class… [comprising] wage slaves and not fledgling entrepreneurs.” [4]
The actual phrase “employee” emerged from the French term employé, coming to incorporate a far broader group of people than the still-present “master-servant” relationship. [5] Early definitions were broad, but what gave the employment relationship its value was the manner in which it connoted freedom compared to master-servant legislation. [6] Without substantially diverging from the doctrines of master-servant law, employee could come to mean a freely contracting party, and in the United States was even used to perpetuate the mythological equal footing upon which employers and employees allegedly bargain. Still, the new characterization of employee, presumably broad but ultimately drawing from earlier class conscious legislation, did little to substantially change the unequal bargaining footing that both preceded capitalism and made up its backbone. Even decades after the employment relationship became the linchpin of American labor legislation, its origins in “master-servant” law were cited to gut worker protections, as in the debate over foremans’ unions. [7] Ultimately, the employment relationship developed as an attempt for state and capital actors to have it both ways, presenting an equal and free relationship that nevertheless emphasizes the power of one party to dominate the other. [8]
It is through this context that one might then examine the transformation of the employment relationship occurring in some of the world’s largest corporations today. Amazon, for example, has opted to describe its version of the employment relationship towards a new term further emphasizing workers’ equal footing with management. On day one, workers are presented with a cheery image of their job title: they are “associates,” the same position held by all in the company up to and including CEO Jeff Bezos. [9] In an era where the employment relationship already connotes a power-structure, employers like Amazon have begun to use alternative terms to mask the underlying power. Just as the concept of ownership and control remains eminently important to understanding practical workforce dynamics, Amazon is shrouding the entire process in mythology, with the corporation going so far as to call every one of its workers an owner. [10] Presenting workers as owners or associates, even facetiously, directly impacts the perceived avenues of change for those workers, and directly conceals the literal power structures that make labor disputes necessary to achieve positive worker outcomes.
At the same time, Amazon’s practical use of power is not less expansive, but more expansive than that which would be expected in a standard employment relationship. Negative workplace environments have been documented up and down the Amazon workplaces (amongst nearly all so-called associates), but it is in the warehouses where a mix of surveillance and physically grueling work is most visible. [11] In warehouses, managerial devices can make employees feel as “convicts on house arrest,” with Amazon tracking every move of warehouse workers. [12] At the same time, days are long, breaks are short, the work is physically demanding, and turnover is high, contributing to an overall environment of precarity that benefits only the employer. [13] Conditions are so bad at Amazon that one scholar jokingly remarked, “the undercover investigation of an Amazon fulfillment center has practically become a full-fledged genre for journalists in both Europe and North America.” [14] Yet the juxtaposition of a changing rhetoric around work and degrading conditions of work is no mere contradiction. Instead, it is a necessary and ubiquitous characteristic of contemporary work. By creating the apparatus and rhetoric of employee equality, Amazon refuses to concede that their work conditions are unacceptable, reframing the situation in the terms of “admonishments to feel joyful at the prospect of struggle.” [15]
II. Human Resources as Preempting Unionization
More meaningful than rhetorical shifts which literally and directly contradict the practical workplace realities are rhetorical (or even tangible) shifts that provide unambiguously positive changes, albeit ones that ultimately undermine workplace conditions. Such is the primary function of the Human Resource Management (HRM) model, a school of thought which purports to suggest that elevating workplace standards unilaterally can be an innate good. In reality, however, the theory of its innate goodness refers less to the positive externalities of a well-paid and secure workforce and more to the potential of HRM to prevent or preempt unionization. Where an unionized workplace has the ability to perpetually evolve standards for workers (and to enforce those standards), an HRM-governed workplace remains at the mercy of management, giving them the right to retract any meaningful concessions in the blink of an eye.
It's also critical to note the practical realities of what concessions are being made by the companies using the HRM model. An investigation of call centers workers identified an interesting juxtaposition: on the one hand, “the company [made] a considerable effort to create a positive and, dare I say it, fun environment to work in.” [16] At the same time, however, the “positive workplace environment” is undergirded by an overwhelming sense and reality of precarity. The work is low-paying and has high turnover, even if the day to day conditions have been slightly or meaningfully elevated. [17] The scholarship on the subject overwhelmingly demonstrates that the priorities of workers tend to be focused on job security and higher wages. Practically, management will rarely, if ever, implement or guarantee these things unilaterally; thus, a contemporary HRM-driven workplace often elevates those secondary concerns (all far less consequential to the corporation) in order to avert any unionization which would force the issue.
Connecting HRM concessions to reductions in unionization is no mere conspiracy theory, or an instance of correlation sans causation, but the reality observed in countless workplaces. Individual case studies indicate corporate plans to introduce or employ HRM either to facilitate de-unionization or to avoid unionization entirely. [18] In unionization campaigns, for example, a common employer response has often been described as a “carrot and stick” strategy, by which employers will simultaneously promise or plan an unilateral improvement in conditions as they attempt to denigrate the ability of unions to achieve such an improvement. [19] The so-called carrot in this equation is therefore a rapid deployment of improved Human Resources, debuted specifically to subvert an individual unionization campaign in the moment.
Also well documented is the global trend away from unionization, and the reasons accompanying such a trend. [20] By tying human resources to improved conditions (and thus by making improved conditions an individualized proposition), HRM has the direct effect both of effectively de-unionizing workplaces and averting future unionization campaigns. [21] As for the reduction in workplace standards, the phenomenon is similarly present in the literature, best described by sociologist Ruth Milkman as the provision of improved working standards and its subsequent erosion after HRM’s success removes its own “raison d’etre.” [22] One might distinguish this phenomenon from Amazon’s situation as one between empty words and empty actions, but the result of management’s authority to degrade working conditions remains present in both.
III. Fissuring and the Sharing Economy
David Weil’s concept of the Fissured Workplace refers to a long-emerging and well-documented trend of increasingly severed employment relationships, dividing a central corporation from its operations, inputs, and ultimately its workers. [23] It manifests itself through subcontracting, whereby companies contract out operations to smaller independent firms, franchising, where a brand is sold to legally independent business owners, and independent contracting, where those working for the firm are labelled as self-employed, promising both flexibility and a reduction of legal red tape. In all cases, the impact on collective bargaining is uniformly negative. Elmore and Griffith (2021) identify the lead firm in franchising as a key to successful collective bargaining outcomes (and the same could be said for subcontractors, whose unionization risks are magnified by the willingness of lead firms to swap contractors). [24] For independent contractors, the right to collectively bargain is entirely dependent on employee status in the United States, making traditional unionization literally impossible without reclassification or legislative amendment. [25] Though collective bargaining may be the greatest victim of fissuring, the process has also been associated with reduced wages, reduced job security, degraded conditions, and other largely harmful externalities. At the same time, however, the rhetorical campaign around different fissured enterprises is both more aggressive and more compelling than even Amazon’s “associate” label, or the HRM school’s promises of positivity.
The ‘gig’ economy represents a substantial expansion of the independent contractor label, the form of fissuring most divorced from a “standard employment relationship.” Purported to suggest that a person is an owner of their own business, the title has been adopted by rideshare and delivery companies like Uber and DoorDash (as well as other sharing economy entities like Airbnb) both to promote themselves to drivers and to rhetorically transform their business model. The primary false promise of Uber exists in their suggestion that an Uber driver is their own boss. The reality is far murkier: workers not only have no substantial control over the jobs they accept, but they also risk losing or degrading their account status by failing to accept any job, forcing workers to take jobs that fail to pay any meaningful amount. [26] Practically, gig workers are not independent contractors, but rather victims of bogus self-employment, whereby workers are legally structured as self-employed, despite existing in a relationship remarkably similar to that of employer-employee. [27] The result is permission for Uber to avoid paying the minimum wage, providing benefits, or (in the United States) worrying about unionization.
Looking at the gig economy at large reveals even higher stakes than falsely attributing business ownership to employees. In fact, the greatest rhetorical deception of the “gig economy” exists is in its packaging as “the sharing economy.” Alexandrea Ravanelle, in her book on the sharing economy, describes the appeal of organizations like Uber as a return to gemeinschaft, or the pre-urban community connections that have been upended by the contemporary economy. [28] The appeal therefore, is not simply the idea of one being one’s own boss, but in fact one evading the alienating conditions of the contemporary economy entirely. As may be anticipated, the grandest promises of corporations produce the direst consequences for workers. Ravanelle indicates that the result of a so-called return to gemeinschaft practically involves a near total transference of risk from Uber onto the worker. [29] The self-employment becomes real in exactly one sense: workers must now incur the risky financial burden of business without the same potential for skyrocketing profit.
IV. Conclusion
The process of workplace degradation has time and time again been both accompanied and facilitated by slight concessions around the edges, creating the illusion of improved conditions. Amazon attempted to use the language of family, continuing a longstanding trend of abstracting the power relations without shifting the dynamic. HRM-oriented workplaces present “positivity” while elevating precarity and opposing the unionization which would provide security. Franchises, ride-share companies and other “gig” work advertise themselves as an entirely distinct type of nostalgic economy, where the only distinction becomes the abysmal working and living reality of drivers. Rhetoric alone does not destroy work, but it is through rhetoric that employers are able to appeal to both state and workers, allowing complacency to pervade, unionization to continue its decline, and precarity to proliferate. Save for a brief period when unionization was at its peak, workplace conditions shouldn’t be considered meaningfully degraded from any point in the history of capitalism. Instead, what has shifted has been the new ways in which corporations sell workers on bad jobs and states on detrimental conditions. Work has become bad for so many not simply as the precise working conditions have changed, but in the way pressure valves have been implemented to keep working conditions down. Unionization becomes supplanted by workplace positivity, the security which unions enforce has been supplanted by a counterfeit promise of flexibility, and enforceable worker voice has been supplanted by phony avenues of change.
There are no definitive or obvious solutions to the rhetorical deception resulting in the degradation of work. Altering regulations around the margins, or offering greater protective legislation inadequately tackles the potential of employer’s to continuously evade new legal developments. Rather, it is the collective bargaining model, and a reorganization of its ossified form in the United States, which will, if effective, help to curb employer overreach in a dynamic and continuous way. Scholars have proposed adopting a sectoral bargaining system, such as that in Germany, to ensure high levels of collective bargaining, even without high union density. [30] Others have suggested an union default, whereby the process of declining union membership would become an active choice, with the assumption being participation in an union. [31] Beyond even those, there exists a robust body of proposals designed to improve unionization rates around the margins, or within the current Wagner Act framework. Regardless, it is through a sweeping legislative agenda, facilitating collective bargaining units, that workers will be able to reclaim (or simply claim), improvements in working conditions requisite with the rhetorical concessions they have been promised. Through the abstractions of legal frameworks (even “protective” ones), the lack of unions to enforce standards, and the erosion of workplaces which (for their many faults) developed collective consciousnesses, workplaces have found themselves significantly degraded. Therefore, it is through a radical upturning of collective bargaining frameworks that those workplaces will find reform and resolution.
Endnotes
[1] David Brady, Regina S. Baker, and Ryan Finnigan. "When unionization disappears: State-level unionization and working poverty in the United States." American sociological review 78, no. 5 (2013): 872-896.
[2] Marc Linder. The Employment Relationship in Anglo-American Law: A Historical Perspective. Greenwood Press, 1989: 61-62
[3] Ibid.
[4] Ibid. at 105
[5] Vinel, Jean-Christian. The Employee: A Political History. University of Pennsylvania Press, 2013: 22
[6] Vinel, Jean-Christian. The Employee: A Political History. University of Pennsylvania Press, 2013: 26
[7] Ibid at 2
[8] Ibid.
[9] James Bloodworth. Hired: Six months undercover in low-wage Britain. Atlantic Books, 2018.
[10] Alessandro Delfanti. The warehouse. Workers and robots at Amazon. Pluto Books, 2021. 9
[11] Ibid.
[12] Bloodworth. Hired. at 17
[13] Delfanti. The warehouse. At 10
[14] Ibid. at 9
[15] Bloodworth. Hired at 18
[16] Bloodworth. Hired at 186
[17] Bloodworth. Hired. at 182
[18] David Peetz. "Deunionisation and union establishment: the impact of workplace change, HRM strategies and workplace unionism." Labour & Industry: a journal of the social and economic relations of work 8, no. 1 (1997): 24
[19] Robert A. Penney. "WORKERS AGAINST UNIONS." Rebuilding Labor: Organizing and Organizers in the New Union Movement (2004): at 94
[20] Daryl D’Art, and Thomas Turner. "Workers and the demand for trade unions in Europe: still a relevant social force?." Economic and Industrial Democracy 29, no. 2 (2008): 165-191.
[21] Debi Saini. "Labour in the new industrial-relations era: global and Indian perspectives." AT Business Management Review (2014): at: 7
[22] Ruth Milkman. LA story: Immigrant workers and the future of the US labor movement. Russell Sage Foundation, 2006. at 14
[23] David Weil. The fissured workplace. Harvard University Press, 2014.
[24] Andrew Elmore, and Kati L. Griffith. "Franchisor Power as Employment Control." Cal. L. Rev. 109 (2021): 1317.; Milkman. LA story.
[25] Weil. The Fissured Workplace.
[26] Bloodworth. Hired. at 222
[27] Michael Gold, and Chris Smith. Where's the ‘Human’in Human Resource Management?: Managing Work in the 21st Century. Policy Press, 2022. at 83
[28] Alexandrea J. Ravanelle. Hustle and gig: Struggling and surviving in the sharing economy. Univ of California Press, 2019. at 32-34
[29] Ibid at 37-39
[30] Kate Andrias. "Union Rights for All: Towards Sectoral Bargaining in the United States." (2020).
[31] Mark Harcourt, Gregor Gall, Rinu Vimal Kumar, and Richard Croucher. "A union default: a policy to raise union membership, promote the freedom to associate, protect the freedom not to associate and progress union representation." Industrial Law Journal 48, no. 1 (2019): 66-97.