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Vulnerability at Work: Legal and Policy issues in the New Economy

The analysis of vulnerability at work is a project that can, and should, be conducted at a number of levels of abstraction and specificity.  However, a number of general observations can be made.  In light of the deep interconnections among legal rules and the diffuse effects of a wide range of policy efforts and external events on the transformation of work and the status of workers, it is unlikely that the problem of vulnerability at work can be successfully addressed without a commitment to analyzing it systematically in the wider regulatory and policy context.

Despite the tendency to formulate model rules, practices and institutions to govern the economy, especially as an incident to ‘good governance', there cannot be any single, fixed approach to labour market rules and policies or to solutions to the problem of vulnerable work. 

It seems clear that labour market flexibility norms may increase the extent of vulnerability for workers. However, neither a focus on vulnerable work nor a focus on flexibility and human capital necessarily implies a single, or obvious, set of strategies, rules or policies.  Moreover, a focus on human capital is not necessarily the same thing as promoting workplace flexibility, at least as currently conceived.  Although their precise form and nature is now in question, there remain powerful arguments, economic and other, for the retention and/or implementation of a range of legal rules and institutions that empower workers, redress workplace discrimination and respond to the diverse forms of worker vulnerability.  A central reason is their role in allocating risk, reflecting the real costs of economic activity, redistributing the gains and losses of economic transformation, and ultimately sustaining the productivity of the economy as a whole.

Thinking through the nature and sources of human capital in conjunction with the imperatives of flexibility suggests a range of policy and regulatory responses other than those often associated with the new economy, that is, regulation to empower employers. Thinking through flexibility, the demands of human capital and the problems of disadvantage and persistent vulnerability together is likely to shift the policy and regulatory calculus yet again. The foregoing discussion suggests a number of questions that should inform the analysis of these issues.

• How do we imagine the ‘normal' or ideal worker in the course of policy and regulatory reform? Is there still a normal worker? What assumptions can we safely make about his/her characteristics, needs, risks, access to labour markets?
  
  
• What sorts of differences matter at work? What kinds of disadvantage are attached to them? Are they, in whole or in part, related to policy and regulatory decisions? How could they be ameliorated by policy and regulatory change?
  
  
• Is the particular form of workplace vulnerability we are addressing simply a ‘work' issue? Or is it related to other issues such as position in the household, or advantage and disadvantage on other social and cultural grounds?  If so, how does that affect our approach?
  
  
• When does vulnerability at work overlap with human capital concerns as conventionally understood, for example, skill, education and experience?  What are the possibilities of addressing them simultaneously? How would we measure success or failure?  Who should pay, and why?
  
  
• When does responding to vulnerability at work require rethinking our understanding of human capital?  What do we think or know about the sources and determinants of human capital? Are these sources ‘fixed', or are they open? What is currently, or commonly, excluded that should be added to the list? Who or what institution, for example individuals, households, firms, the state, provides the ‘inputs' to human capital? At what cost, and to whose benefit?
  
  
• When does responding to vulnerability at work, either for particular categories of workers or for workers in general, diverge from a human capital agenda?  Where is it appropriate to implement rules and policies that channel resources to workers or empower workers, notwithstanding their economic effects?  When do economic concerns crowd out other values, objectives and dreams?
  
  
• When does responding to vulnerability at work conflict with labour market strategies organized to promote adaptability on the part of workers or policies to enhance the economic prospects of firms?  Can we identify policy or regulatory shifts that impair, or are likely to impair, workers job, employment and income security?  Which workers?  Has the complete range of costs been assessed?  Do they include non-market as well as market costs?  How do we propose to compensate those who are affected?  Do we propose to compensate them?  If not, what do we think will be the effects, economic and non-economic?