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Refining The Definition of “Employee”

Brishen Rogers

Brishen Rogers

Pro-union law professor and former SEIU organizer Brishen Rogers has penned a treatise for the American Constitution Society suggesting legislative changes to “expand and clarify” the meaning of the term “employment.” His suggestions include:

  1. Redefine employment per the “suffer or permit” test and specify that the “suffer or permit” test defines employment very broadly;
  2. Define workers in certain highly fissured industries as the legal employees of firms who contract with them individually for labor, and/or the joint employees of user firms who obtain their labor through subcontracting or franchising arrangements;
  3. Develop concrete guidance for courts to apply in other industries, or direct an expert agency to do the same; and
  4. Place the burden of proof on the party seeking to avoid employment status and implement other procedural and remedial reforms.

You can download the 10-page brief here.

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