Ownership Work and Work Ownership

Abstract

Professor Lee Fennell’s groundbreaking Slices and Lumps incisively reconceptualizes how the gig—or “slicing”—economy impacts the structuring of work. But it goes even further to alert us to how “delumping the working experience” can transform the infrastructure of work, from an individual’s task design to the agglomeration costs and benefits of untying and retying workers to desks, work to benefits, worksites to surrounding communities.

This Essay takes seriously her invitation to refine and adapt its insights to radically readjust work law in two ways. First, it explores how employer’s property rights over worksites are “lumpy” when they allow employer accrual of “opportunity cost” rents by:

(1) exploiting “lumpy” benefits of first possession and the unilateral right to exclude to reduce output, increase prices to consumers, or restrict workers’ more innovative and productive property use, foreclosing alternative, more productive uses of worksites; and

(2) foreclosing workers’ receipt of competitive wages or higher productivity contributions in alternative employment by exercising labor market power over them (Part I).

Second, the Essay explores creative solutions for tackling the inefficiencies or social costs resulting from those rents. Specifically, it re-envisions labor law doctrine pertaining to workers’ lawful interference with employers’ property, which requires balancing employer’s state law property rights against employees’ and unions’ labor rights under the National Labor Relations Act (“NLRA” or “the Act”) (Part II). Inspired by Professor Fennell’s contributions, it proposes a rebalancing of both sides of the ledger: on the state property rights side, it calls for an efficiency-based “slicing” of employer’s property control (“ownership work”) (Part II.A), and on the labor rights side, redesigning a new “choice architecture” that enables a broader set of options for workers’ protected activity (like "sliced," or partial, strikes) to function as countervailing power against employer rent collection (“work ownership”) (Part II.B).