Employment laws and new ways of working together

• Author: Janelle Orsi
• Profession: Is the Director of the national nonprofit Sustainable Economies Law Center, and she is a 'sharing lawyer' in private law practice in Oakland, CA
• Pages: 367-413

367

CHAPTER SEVEN

EMPLOYMENT LAWS

AND NEW WAYS OF

WORKING TOGETHER

PART 1: NEW WAYS OF WORKING TOGETHER

A primary goa l of the sharing economy is to give i ndividuals and com-

munities control over their l ivelihoods and economic well-being. This

creates an immediate legal conundr um: most of our employment and

labor laws are designed to protect workers that lack control over their

livelihoods. The reach and coverage of such laws has grow n to the extent

that they now cover even the collaborative, democratic, part icipatory,

self-sufficient, and accountable economic relationships we are creating

in a sharing economy. In fact, our employment law framework may be

one of the greatest barriers to the creation of more cooperative and sus-

tainable economies.

This chapter will provide an overview of the common employment

law puzzles that come up in contexts such as social enterprise, worker

cooperatives, food cooperatives, shared housing, collaborative farm ing

arrangements, and other activities common to the sharing economy.

Lawyers must be empowered to spot issues, learn t he intricacies of the

legal gray areas, and help clients implement legal solutions that balance

the protection of individuals and preservation of clients’ cooperative

visions.

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From Working for Others … to Working with Others

Wor ki ng for others is how the vast majority (roughly 92 percent

1) of

working adults in the United States ear n their livelihoods. Having a job

is an attractive option to the extent that it provides us with a predictable

source of income.2 Unfortunately, widespread reliance on jobs creates a

vulnerable economy. The inherent flaw in relying on other pe ople to cr e-

ate the opportunit ies for our livelihoods is that the system is designed to

ensure that employers have enough workers, not to ensure that workers

have just enough jobs. Individual workers have little or no control over

the availability a nd diversity of job options.

Searching for a job becomes like a ga me of musical chairs,3 where

players, with great urgency, vie for a scarce number of seats. The people

that find a seat will not necessarily find it fitt ing or comfortable, but

the y like ly feel r elieve d to at le ast have a seat. These days , the game has a

larger number of people and a smaller number of chairs. Musical chairs

was fun as a k indergarten game. But as a way to sustain ourselves, our

families, and our communities? Not so much.

The solution, of course, is to stop waiting for chai rs to appear and to

make our own. Even though jobs can disappear, our abilities to be pro-

ductive and provide for one another wi ll never disappear. When we learn

how to h arness t his power ful capa city and c reate stabl e opportu nities t o

be productive, the ga me will always involve more than enough chairs.

The new economy is characterized by many new opportunities and

arrangements to work, spend our time, and contribute productively to

society. Microenter prise, cooperative enterprise , community-supported

enterprise, and sharing enterprise are likely to become the norm, since

they put control of livelihoods back into the hands of communities.

1. Dep’t of Labor, Entrepreneurship: A Flex ible Route to Economic Independence

for People with Disabilities (Aug. 2005), http://www.dol.gov/odep/pubs/misc/entrepre

.htm.

2. Jobs have also become t he primary way in wh ich people access health ca re, which

is rather odd, if you t hink about it. W hy should our abilit y to access healt h care be

almost enti rely determined by how we cho ose to make our li velihood? Why shou ld

access to thi s part of the social safet y net be managed by employers?

3. I am gratef ul to Charles E isenstein (author of Sacred Economics) for usin g the

musical chai rs metaphor and inspir ing me to start usin g it in talking about m any aspects

of the economy. He told me he’s grateful to Lynne Twist (founder of the Pachamama

Allia nce) for inspiring him to use t hat metaphor.

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Employment L aws and New Ways of Working Together | 369

Wor ki ng with others is how we will make it happen. We won’t suc-

ceed if we each create our own businesses and compete with each other

for a share of the market; that would just result in different game of

musical chairs. Rat her, we will succeed if we form relationships and

organizations t hat allow us to cooperate. Everyone can be and needs to

be productive, and ever yone can be and needs to be provided for, and

we can achieve both th rough a variety of agreements with each other:

• Agreements to cooperat ively work for our mutual benefit: A

grocery cooperative is, essentially, a group of people who provide

for themselves by means of their own food aggregation and dis-

tribution center. Many g rocery cooperatives are operated entirely

by the efforts of members, who order food and div vy it among

themselves, thereby obtain ing food at cost and removing the need

for a commercial grocery store to ser ve as an intermediary.

• Agreements by a g roup of people to “adopt” an enterprise:

This is another way of saying “community-supported enterprise.”

In the example of community-supported agriculture, a group of

people agrees to adopt and support a farmer by purchasi ng a share

of the farmer’s harvest in advance.

• Agreements to work separately in multiple enterprises and

provide reciprocal support : Controlling workload can be quite

difficu lt in some industries, and this creates a particular strain on

very small businesses. A group of small-scale farmers or a group of

caterers may, formally or informally, agree to chip in and help each

other out when things get busy. One farmer may get help from

another at harvest time, and reciprocate later. A caterer may help

out another during a big event and receive the same in ret urn later.

• Agreements to work separately and market together: A pro-

ducer cooperative allows multiple independent enterprises to ben-

efit and thrive through cooperation. For example, a group of home

bakers may form an agreement to cooperatively sell t heir breads at

a joint farmers market stand or under a single brand, thus reduc-

ing competition and the high cost of each entrepreneur marketing

products alone.

• Agreements to work together in an enterprise: Worker coop-

eratives are groups of people who have chosen to work together in

the creation and operation of an enterprise. Worker cooperatives

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