Ubiquitous Human Computing

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The Difficult Issues

Present Day Doctrinal Problem Areas

• American Business Law Journal: The Information Revolution and its Impact on the Employment Relationship: An Analysis of the Cyberspace Workplace
  • This is a fantastic survey paper on the many issues raised with employment law in combination with cyber-workers.
  • This article seems to assume that cyberworkers will still be working in the United States, but this seems like an unrealistic assumption
  • Written in 2003, around the time LiveOps launched (2000)
  • Citation: 40 AMBLJ 301
  • Section II of this article examines how working over the internet blurs/challenges current law about the employee/contractor distinction.
    • "Under the right-of-control test, an employee is not an independent contractor if the employer has the ability to control the time, method, and manner of employment"
  • Section IV of this article examines how cyber-working affects non-compete agreements and copyright considerations (such as works-for-hire)
    • "The Internet exacerbates this tension by raising previously unheard of issues in drafting and enforcing non-compete agreements."
    • Work-for-hire: How does UbiComp affect the work-for-hire test established by Creative Non-Violence v. Reid? ( 490 U.S. 730 (1989) )
  • Section V - Employment Regulation
    • A: The Burlington/Faragher sexual harassment standard is not clear when applied to cyber-workers
      • "The Ninth Circuit held that remoteness will not dilute an employee's obligation to report sexual harassment."
    • C: Family Medical Leave Act - depends on employee/independent contractor distinction
    • D: Workers Compensation
    • E: Fair Labor Standards Act
    • F: The National Labor Relations Act
    • G: The Occupational Safety & Health Act
  • Conclusions
    • For employee/contractor distinction, "courts must use the existing and long-standing right-of-control test, but apply it with sensitivity to the unique characteristics of Internet-enabled workplaces."
    • As courts evolve toward the Zippo sliding scale, they must set some standard of how much contact remote employment creates between the employee's forum state and the employer.
    • Agencies need to adopt specific regulation to deal with cyberworkers
    • "When regulatory guidance is insufficient, the legislature must act"
      • Congress must clarify how unions can organize and communicate in cyberspace in order to protect labor and management rights.

• Case study: Amazon's Mechanical Turk may violate employment/tax laws because the employee-employer relationship is between the requester and the worker [1]

Potential Difficult Problems in the Future

• What if UbiComp is used for political lobbying?
  • In general, any mass movement could be created using UbiComp
• Could employees "outsource" their own work using UbiComp? [2]
  • How can child labor be prevented?

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