Guy Davidov | The Hebrew University of Jerusalem (original) (raw)

Labour/Employment Law Papers by Guy Davidov

Modern Law Review, 2024

Misclassification of employees as independent contractors is widespread. This article aims to mak... more Misclassification of employees as independent contractors is widespread. This article aims to make two contributions. First, to sharpen the explanation of why misclassifications persist: I argue that three well-known problems – the indeterminacy of employee status tests, the barriers to self-enforcement, and the inequality of bargaining power – combine together to give employers de facto power to set the default legal status. Putting the burden on the worker to initiate legal proceedings and challenge their classification as an independent contractor is the ultimate reason for persistent misclassifications. The second and main contribution is to propose a solution that relies on new AI capabilities. Thanks to technological advancements it is now possible to require employers to seek pre-authorisation before engaging with someone as an independent contractor. The authorisation will be granted (or refused) by a State-run automated system, based on an AI prediction about the law. Both parties will still be able to bring the case before a court of law; but the power to set the default legal status will be taken away from employers. The article considers the difficulties with relying on AI predictions, and argues that those difficulties can be addressed, proposing a model that can be justified.

Forthcoming in William Chiaromonte & Maria Luisa Vallauri (eds.), Trasformazioni, Valori e Regole del Lavoro, Volume III – Scritti per Riccardo Del Punta (Firenze UP), 2024

In this short essay dedicated to the memory of Riccardo Del Punta, my aim is to highlight one of ... more In this short essay dedicated to the memory of Riccardo Del Punta, my aim is to highlight one of his (many) contributions to labour law, and to reflect on possible ways to apply it on a timely question. My argument is that the capability approach can be used as an aid to help determine the status of on-demand platform workers. More specifically, because such workers often have some freedom to choose when to work and how much to work, we can use the capability approach to examine to what extent this freedom is real and meaningful, and also, to what extent it is relevant for the need of specific labour law protections.

BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW, 2024

Much has been written about the legal tests that exclude independent contractors from employment ... more Much has been written about the legal tests that exclude independent contractors from employment and labor law coverage. Less attention has been devoted to courts' use of classification processes that invoke some preliminary requirements (i.e. preconditions for employee status) and result in the exclusion of various categories of workers from potential coverage. Those workers include volunteers, prisoners, persons with disabilities, interns, trainees and apprentices, business owners, corporate directors and officeholders. This Article brings these preconditions together into a coherent framework by critically examining their different variations in the U.S. as well as the UK, Canada, and the EU. Further, this Article proposes a narrower set of preconditions which will better advance the purpose of employment and labor laws and increase consistency and predictability in its application. The three proposed preconditions are: (1) performing work or providing services that benefit an employer (regardless of whether there is also a personal benefit for the worker) unless such benefits are negligible; (2) the work should be remunerated (regardless of whether wages are paid in practice or have been promised or not); and (3) the work is substantially performed personally.

Modern Law Review, 2023

This article considers the problem of questionable consent in contracts of employment. We suggest... more This article considers the problem of questionable consent in contracts of employment. We suggest that in the context of employment, consent should be understood as a continuum that includes some level of coercion and some level of choice. We show that despite labour law's assumption of inequality of bargaining power, consent is still legally valid in various contexts of employment. We propose some solutions: procedural rules increasing the chance of free and informed consent, and substantive standards restricting recognition of consent due to public policy considerations. The 'menu' we put forward includes some solutions already recognised by law (in some specific contexts) and we also propose some new ones. We then demonstrate how the proposed solutions,both procedural and substantive,can be applied in common contexts where employee consent might be put into question: variation of contractual terms, waiver of access to courts, waiver of legislated rights, waivers related to human rights, and implicit waivers of employee status.

University of Toronto Law Journal, 2023

Working through platforms is a recent but fast-growing phenomenon, with obvious implications for ... more Working through platforms is a recent but fast-growing phenomenon, with obvious implications for workers’ rights. Discussions have so far focused on the status of platform-based workers, but recently a growing consensus is emerging by courts around the world that workers for platforms such as Uber are in fact employees. As a result, legal disputes are likely to shift, to a large extent, from status questions to working time questions. This might seem like a very specific issue, but in fact it has crucial implications for the entire model of platform work; and addressing this question requires us to rethink some of the fundamental pillars of labour law, notably whether more room should be opened for flexibility and individual choice within this system.
We argue that one aspect of the platform model – “work on demand” which allows workers to log into the app whenever they wish to do so – poses a difficulty. Workers should be compensated for the time they are “on call” and available to work. But platforms can be expected to respond by assigning workers to pre-set shifts to avoid paying for an unknown amount of working hours, thereby dismantling the “on demand” model. Such a change would be welcomed by many employees, who will gain more security, but others can be expected to object to losing the flexibility which they value.
We consider possible solutions that could allow workers to choose the “on-demand” model. While rejecting the possibility of allowing employees to waive on-call compensation rights, we consider several intermediate solutions that ensure partial payments for this time or exempt employees with another full-time job. The proposed solutions are based on the understanding that more choice is preferable in labour law, as long as we can protect the interests of the affected employees, and eliminate the externalities that some choices might generate for other workers.

Industrial Law Journal, 2022

The tests for identifying who is an 'employee'the gateway for a multitude of employment rights ha... more The tests for identifying who is an 'employee'the gateway for a multitude of employment rights have preoccupied generations of labour lawyers. It is relatively rare, however, to see a significant change in the law itself in this area. We are currently witnessing such a rare change in the US, where a new test called the 'ABC test' was adopted in California and is gaining support elsewhere. The new California test starts with a legal presumption of employee status. To rebut the presumption, the hiring party has to demonstrate that all the following conditions are satisfied: no control over the worker; the work is outside the usual course of the employer's business; the worker is customarily engaged in an independently established business. The goal of this article is examine whether this new test is normatively better than previous tests and should be regarded as a model for legislation in other countries as well. Our assessment is made in light of three benchmarks: whether the new test successfully advances the purpose of labour laws; whether it adopts an optimal balance between selectivity and universalism; and whether it strikes an optimal balance between rules and standards. Our conclusion is generally positive, but at the same time we argue that some modifications are necessary to improve the test and make it a useful model.

Comparative Labor Law & Policy Journal, 2023

Enforcement of labor laws is inherently challenging and seriously lacking. Literature in this are... more Enforcement of labor laws is inherently challenging and seriously lacking. Literature in this area has focused on proposing and examining legislative solutions and ways to make the work of enforcement agencies more effective. Without detracting from the importance of these aspects, we argue that courts have a role to play in improving compliance as well. We begin by reviewing three bodies of literature that explain how the law can be shaped to induce compliance: economic analysis (including behavioral law and economics); behavioral ethics; and the expressive function of the law. For each of these theories, we show the relevance for labor law. We then move to consider some specific contexts within labor law in which judges, in particular, can influence compliance. Relying on examples from Israeli case-law, we show that courts already take such considerations into account, and we argue that they should do so explicitly and more consistently. We discuss judgments that can be understood as an attempt to raise awareness to the law; the need to balance between ambiguity and specificity when judicially developing the law, to improve compliance; the possibility of using a third party to pressure others into compliance; and ways to induce compliance through remedies. We then reply to a possible critique that judges lack the legitimacy to take compliance considerations into account in their judgments.

Soziales Recht, 2021

The problem of enforcement has become a major concern of labour law in recent years. Instances of... more The problem of enforcement has become a major concern of labour law in recent years. Instances of violations are increasing, or at the very least awareness to this phenomenon is increasing, leading legislatures and scholars around the world to search for innovative solutions. Clearly there is not much point in labour laws if employers do not comply with them, and especially if the most vulnerable employees, who need labour laws the most, do not actually enjoy them. The goal of this contribution is to review the main tools and possible solutions to improve compliance. I will offer a broad overview of such solutions, without getting into the details (which require much more space), except for pointing out some of the main current challenges.

Section I explains why labour laws are inherently challenging to enforce, and why the problem has exacerbated in recent years. Section II explains the difference between a focus on compliance and a focus on enforcement. Although the two are sometimes described as opposing approaches, I argue that they are both needed and compatible, and in section III combine them into a framework of three steps needed to secure compliance. I then focus most of the discussion on methods to reduce the ability of an employer to benefit from a violation (section IV) and methods to increase the cost of violations once they have occurred (section V). Throughout the article, most of my examples will come from Israeli law, which I am most familiar with; but there are similar examples in other legal systems (which I will sometimes point out).

41 Comparative Labor Law & Policy Journal 289, 2019

In this review of Principled Labour Law, I discuss whether it is useful to have a set of “labor l... more In this review of Principled Labour Law, I discuss whether it is useful to have a set of “labor law principles,” and whether the specific principles proposed by the authors (following Latin American jurisprudence) are indeed justified and helpful.

Oxford Journal of Legal Studies (forthcoming), 2020

Nonwaivability is considered a basic principle of labour law. In most cases, it is needed to prot... more Nonwaivability is considered a basic principle of labour law. In most cases, it is needed to protect employees against coerced waivers. But what if an employee genuinely wants to waive some labour right, for example in return for a higher salary? This article explains why nonwaivability is generally justified even against the wishes of employees, for reasons of paternalism, harm to others, and second-order justifications. At the same time, in some cases there is room for intermediate solutions, that can be used to better respect the autonomy of employees, and achieve additional benefits, without undermining the goals of labour laws. The article employs this analysis to examine two concrete questions, as examples: waiving of 'employee' status and the individual opt-out from maximum weekly hours. In the latter context, while I critique the current law, I argue that some form of conditional waiver could be acceptable.

THE CAPABILITY APPROACH TO LABOUR LAW (Brian Langille ed., OUP 2019) Ch. 2, 2019

The goal of this chapter is to assess to what extent the Capability Approach (CA) can be useful f... more The goal of this chapter is to assess to what extent the Capability Approach (CA) can be useful for labour law theory. It begins by asking, what is the purpose of looking for a purpose for labour law? The chapter distinguishes between legal purposes (such as purposive interpretation) and non-legal purposes (for example, defending the law against economic and libertarian critiques). It argues that for legal purposes, there must be ‘fit’ between the proposed normative theory and existing laws. It then distinguishes between three different strands in the literature regarding what do we want people to be capable of: whatever they want (‘substantive freedom’); specific capabilities (justified by another theory); or effective ability to enjoy labour laws (that require separate justifications). The chapter argues that the first two strands can be used to justify some specific laws – notably, workplace equality, health and safety and working time law – but certainly not the entire field. The third strand can be used as a ‘supplementary device’ to justify specific means that will make the laws effective – but does not provide the primary justification for the laws themselves.

Philosophical Foundations of Labour Law (Hugh Collins, Gillian Lester & Virginia Mantouvalou eds., OUP 2018) Ch. 8, 2018

Redistribution is considered one of the main goals of labour law. When we refer to redistribution... more Redistribution is considered one of the main goals of labour law. When we refer to redistribution as a goal, we usually do so, implicitly, as shorthand for distributive justice. The goal of this chapter is to explore theories of distributive justice, and ask to what extent current labour laws are in line with those ideas, and what else labour law can (or should) do to advance this goal. I examine several theories: that distributive justice should be based on 'desert'; theories of distributional equality-notably, luck egalitarianism-which demand redistribution in order to achieve equality in distribution; and theories of redistribution as instrumental to the advancement of equality. At the end of each part I will briefly consider the possible implications for labour law, both in terms of employer-employee relations and in terms of intra-worker distribution. The question will be: what kinds of labour market regulations (if at all) can be supported by each distributive justice theory? Specifically, to what extent do these theories justify existing labour laws? Then in the concluding part some remarks are offered on one area that requires new labour law regulations to address distributive justice concerns: in light of the previous parts, I will suggest several steps that should be taken to address divisions in two-tier and dual labour markets.

Published in The Daunting Enterprise of the Law: Essays in Honour Of Harry Arthurs (Simon Archer, Daniel Drache & Peer Zumbansen eds., 2016) Ch. 14, 2016

One of the clear examples for the ability of academics to influence the law, and the ability of l... more One of the clear examples for the ability of academics to influence the law, and the ability of law to influence the lives of workers, stems from Harry Arthurs' contribution concerning dependent contractors – an intermediate category between “employees” and independent contractors. The binary divide between the two traditional categories has crucial importance for people who work for others: either they enjoy the protection of numerous regulations (if they fall into the scope of “employees”), or they fall completely out of labour law’s sight. Yet, in real life, the distinctions between different workers are hardly binary. So, the need for a more nuanced regulatory apparatus becomes clear.
This chapter, written for a book in honour of Arthurs, briefly assessed two concrete proposals he made for the adoption of an intermediate category between “employees” and independent contractors. I start by describing the original proposal in made in 1965, then move to explain the logic behind intermediate categories in this area, before assessing the Canadian legislated definition (which adopted Arthurs' proposal to some extent), explaining its deficiencies. I then move to analyze a more recent proposal made by Arthurs for the adoption of an intermediate category (along the same lines), suggesting some amendments that could further improve it.

Forthcoming in the Jerusalem Review of Legal Studies as part of a book symposium; a reply to com... more Forthcoming in the Jerusalem Review of Legal Studies as part of a book symposium; a reply to comments by Einat Albin, Harry Arthurs, Simon Deakin, Ruth Dukes and Guy Mundlak on the book A Purposive Approach to Labour Law (OUP 2016)

Subordination has long been a key concept in labour law theory. It aims to depict a central chara... more Subordination has long been a key concept in labour law theory. It aims to depict a central characteristic of employment relationships that explains (at least partially) the need for labour laws. More recently there is an increasing interest among labour law scholars with the concept of domination as developed in republican theory. On the face of it, being dominated by an employer appears to be very similar to being subordinated to an employer. To assess the relevance and usefulness of domination for labour law, I begin by providing an account of subordination and its different possible meanings. I then examine the different components of the definitions of domination developed by Philip Pettit and by Frank Lovett (with some reference to other scholars), and explore the similarities with, and differences from, the concept of subordination. I conclude that some key parts of domination — most notably the existence of arbitrary power — are not an optimal fit to describe employment relationships and justify labour law. In this respect domination cannot serve as a general theory of labour law. Nonetheless, republican theories are certainly helpful in providing normative support for specific labour laws as well as some other concrete benefits.

The status of Uber drivers – the question of whether they are independent contractors (as argued ... more The status of Uber drivers – the question of whether they are independent contractors (as argued by Uber) or employees – has been the subject of a heated debate recently. The goal of this paper is to address this question at the normative level: what should the law be in this regard? It begins, in part II, by briefly discussing some preliminary issues about how to address the problem: does it make sense to retain the employee/independent contractor distinction at all? Is it justified to maintain an “all or nothing” dichotomy? Should we leave the determination of “who is an employee” to courts? And finally, how should we interpret the term “employee” that appears in legislation? As will become clear, my approach is purposive, and Part III outlines – based on my previous writings – what this means in the context of identifying an employment relationship that justifies the application of labour laws. I will briefly consider several goals of labour law, and suggest that the most useful level of abstraction for current purposes is to focus on the unique vulnerabilities of employment, which I identify as democratic deficits (subordination, broadly conceived) and dependency (economic as well as for social/psychological needs). Finally, part IV applies these general principles to the specific context of Uber drivers, concluding eventually that Uber drivers should be considered employees.

This is a chapter in a volume on "Reasonable Accommodation in the Modern Workplace", edited by Ro... more This is a chapter in a volume on "Reasonable Accommodation in the Modern Workplace", edited by Roger Blanpain and Frank Hendrickx (chapter 12).
The goal of this chapter is to consider – and justify – the expansion of the duty to accommodate in labour law. Section §12.02 explains the two basic parameters setting the breadth of the duty. One question is whether it takes the form of concrete duties in legislation (e.g., an employer must grant maternity leave after an employee gives birth) or rather includes also an open-ended general duty to do whatever can reasonably be done to accommodate. The other question is whether the duty applies to a specific group of people that are especially vulnerable or rather to many different groups of people, or even (ultimately) every employee. Otherwise put, do employers have to
accommodate every special need, or just specific needs such as those of workers with
disabilities? Section §12.03 argues that there is a gradual change (as a descriptive matter) towards expansion on both fronts: more open-ended duties and more reasons for accommodation (or: more groups of people possessing a right to enjoy accommodation). We draw on Israeli developments for the purpose of stylizing this process of change, but also give some examples from other countries. Section §12.04 justifies this development and calls for further expansion towards a universal duty to accommodate. We argue that such a change goes beyond the context of equality and reaches into the fundamental structure of the employment contract, deeply affecting the primacy of the managerial prerogative. Section §12.05 addresses some possible critiques.

Israeli courts were recently faced with the question of whether an employer is allowed to voice o... more Israeli courts were recently faced with the question of whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer for this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision of whether to join the union or not. The Supreme Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario – the workers’ freedom of association and the employer’s freedom of speech – to appreciate their relative strength in the circumstances. It then examines whether some balance is possible. To this end, the Article critically reviews the legal mechanisms adopted by other legal jurisdictions (the U.S., Canada and the U.K.) in this regard, shedding light on their effectiveness and the difficulties of organizing in practice in each jurisdiction. The main argument advanced in this Article is that the solution has to be purposive: to advance the goals of labor law and specifically freedom of association; and that the purposive analysis must be contextual. A rule prohibiting the employer from voicing opinions is surely an infringement of freedom of speech, and strong reasons are needed to justify it. Whether strong enough reasons exist depends on several contextual factors. Essentially, the question is whether given the current context, it is possible to secure real freedom of association without such a rule. By context we mean two main things: First, the real-life current experience concerning the struggles of organizing; and second, the existence of alternative legal mechanisms that might address this problem.

This paper was written for a symposium of the Comparative Labor Law & Policy Journal on David Wei... more This paper was written for a symposium of the Comparative Labor Law & Policy Journal on David Weil, The Fissured Workplace (Harvard UP, 2014). Weil’s book offers a comprehensive and penetrating account of indirect employment – a problem plaguing labor relations and labor law throughout the world. He provides a wealth of data and analysis showing how extensive this practice is in the United States, and goes on to offer several proposals to “mend the fissured workplace”. The current article has two aims, both complementary to (rather than critical of) Weil’s book: first, to use the Israeli example as background to consider some possible paths forward, and second, to consider the possible justifications for imposing liability on “lead companies” (the ultimate clients/brands/franchisors) towards indirect employees.

Part I of the Article opens by describing the phenomenon of indirect employment in Israel, where it is widespread. Part II then critically considers the solutions adopted in Israel so far. I then move to discuss some additional/alternative solutions, to a large extent in line with Weil’s proposals, offering some more details on the appropriate legal structures and their justifications. Part III begins by clarifying the legal questions, proposing some distinctions, which I find useful and necessary. Part IV then moves to address the question least developed so far in the case law and literature, which is whether firms (or other entities) could sometimes be held directly responsible for workers employed by their subcontractors/franchisors, even if they have no direct relationship with them. The final Part concludes and adds some preliminary suggestions regarding methods, i.e. possible legal routes to establish legal responsibility by lead companies, assuming it is indeed justified.

‘Employment at Will’ systems, in which employers have a right to dismiss employees for any reason... more ‘Employment at Will’ systems, in which employers have a right to dismiss employees for any reason or no reason at all, have been (rightly) criticized for allowing the arbitrary imposition of significant harms. ‘Just Cause’ arrangements, in which employers bear the burden of showing a justified reason for dismissals, in a process which often gives unions significant involvement, have been strongly resisted for causing inflexibility. Israeli labour law, which is relied upon here as an example, suffers from a combination of both extremes. UK law, which could be seen to offer a middle ground, is seen by labour law critics as offering too little protection for workers, and by the Government as offering too much. This article searches for other intermediate solutions. Four are discussed: the flexicurity system which is based on broader security provided by the State, rather than job security; a default (rather than mandatory) job security rule, powered by ‘soft law’ regulations; a prohibition on ‘bad faith’ dismissals, requiring the employee to prove a ‘bad’ cause; and finally, a system based on ‘rich’ procedural guarantees to ensure just cause. The article focuses on the last one, offering a case-study of a new model recently adopted in some collective agreements in Israel. In this model, a detailed process has to be followed to ensure that dismissals are not arbitrary, but at the end of the day the decision is left solely with the employer. We will discuss the experience with this model so far and whether it offers a balanced solution for employers, workers and society at large. Our discussion is based, among other things, on an empirical analysis of job security perceptions as learned from questionnaires we administered to several groups of Israeli employees.

Modern Law Review, 2024

Forthcoming in William Chiaromonte & Maria Luisa Vallauri (eds.), Trasformazioni, Valori e Regole del Lavoro, Volume III – Scritti per Riccardo Del Punta (Firenze UP), 2024

BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW, 2024

Modern Law Review, 2023

University of Toronto Law Journal, 2023

Industrial Law Journal, 2022

Comparative Labor Law & Policy Journal, 2023

Soziales Recht, 2021

41 Comparative Labor Law & Policy Journal 289, 2019

Oxford Journal of Legal Studies (forthcoming), 2020

THE CAPABILITY APPROACH TO LABOUR LAW (Brian Langille ed., OUP 2019) Ch. 2, 2019

Philosophical Foundations of Labour Law (Hugh Collins, Gillian Lester & Virginia Mantouvalou eds., OUP 2018) Ch. 8, 2018

Published in The Daunting Enterprise of the Law: Essays in Honour Of Harry Arthurs (Simon Archer, Daniel Drache & Peer Zumbansen eds., 2016) Ch. 14, 2016

Research on compliance has shown that people can be induced to comply with various requests, by u... more Research on compliance has shown that people can be induced to comply with various requests, by using techniques that capitalize on the human tendencies to act consistently and to reciprocate. Thus far this line of research has been applied to interactions between individuals, not to relations between institutions. We argue, however, that similar techniques are applied by courts vis-à-vis the government, the legislature and the public at large, when courts try to secure legitimacy and acceptance of their decisions. We discuss a number of known influence techniques, including ‘foot in the door’, ‘low-balling’, ‘giving a reputation to uphold’ and ‘door in the face’, and provide examples from the Israeli case-law for the use of such techniques by courts. This analysis offers new insights that can further the understanding of judicial decision-making processes.

We examine whether the level of deference shown by the Israeli Supreme Court to military decision... more We examine whether the level of deference shown by the Israeli Supreme Court to military decisions has changed over time by empirically analyzing the entire body of Supreme Court decisions in petitions against the military commander between 1990 and 2005. Setting forth a number of different factors that might generally affect the degree of deference to state agencies, we hypothesized that there would be a decrease in deference in the relationship between the Court and the military commander during the examined period. Our findings show that deference to the military commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely, the routinization and increase in the number of petitions by the civilian population) and also--to some extent--by the rise of a substantive rule-of-law legal consciousness, central to which is the importance of human rights.

This article analyses the Canadian constitutional case-law in which the Supreme Court uses the do... more This article analyses the Canadian constitutional case-law in which the Supreme Court uses the doctrine of deference, and considers the justifications for this doctrine. The two main justifications that have been advanced for deference concern the judiciary's alleged institutional incompetence and the lack of democratic legitimacy. I argue that none of these arguments can explain the doctrine of deference as developed and used by the Supreme Court of Canada. It will be shown that courts are perfectly capable of making decisions on constitutional questions. And as for democratic legitimacy arguments - which are based on the fear of subjective reasoning - they are seriously undermined by the indeterminate and subjective application of the doctrine. In fact, it will be shown that deference only adds subjectivity to the analysis. This is what I will call the paradox of judicial deference. It will further be argued that a relaxed level of constitutional review is indeed justified only when the risk of a judicial mistake is too high for us as a society to take. And in such cases, rather than using the vague concept of deference, a relaxed but explicit test must be developed.