Everyone reading this jot likely has a story about how the home/office divide collapsed for them in 2020. (I have several.) But even among work law scholars, there aren’t too many of us who do more than periodically gripe about the divide’s demise. (I don’t.)
To be sure, we all understand that domestic labor is undervalued, underpaid, and insufficiently protected. But what about domestic space? Specifically, what about domestic space that is no longer, or no longer only, domestic? Yiran Zhang’s forthcoming article, Home as Non-Workplace, gives us a timely and comprehensive way to think about the home/office divide and what it does, could, and should mean for work regulation.
Zhang’s article does three things that I particularly enjoy.
First, it effortlessly weaves between statutory minutiae (FLSA § 206(f)(2)(A), anyone?) and sky-view analyses of the what-do-we-value variety. As someone who almost exclusively teaches statute-heavy classes—and who has for years flirted with the idea of teaching an FLSA-survey course but always loses courage when it comes time to fill out teaching requests—I admire this.
In the paragraph I’m referencing, Zhang opens with a discussion of the coalition of “Black domestic workers and liberal professional female domestic employers” that eventually won that 1974 amendment to the FLSA. Just a few paragraphs earlier, she’s talking about how “the material transformation of work” transformed life for both lower- and middle-class workers.
It’s a difficult balance to neither shy away from statutory minutiae nor forget to contextualize and humanize those alpha-numeric strings—but it’s an important balance to strike. Statutory minutiae are how we attempt to distill and manifest sky-view valuations. The more legal scholars successfully demonstrate this through their writing, as Zhang does, the more we can demystify statutory law and perhaps get non-lawyers to care about it.
Second, Zhang consistently acknowledges the very real differences in how 2020 affected workers without minimizing the harms experienced by any group of workers. For instance, in Part III(B), she discusses the assumption that, roughly speaking, “if you’re home, you’re not working.” Zhang discusses this “time politics” that is really also a spatial politics en route to detailing the many (creative, borderline dystopian) anti-fraud measures it’s inspired in employers, consumers, and government actors.
For example home healthcare workers are tracked through Electronic Visit Verification systems that track GPS locations, require activity logs, and collect photos, while white-collar workers face keyboard loggers, interval photography, and mouse-tracking. Likewise, in Part IV(B), Zhang discusses how the home-as-workplace isolates workers to a degree that is emotionally, socially, and legally risky. Drawing on Lechmere Inc. v. NLRB, Zhang argues that care-workers who live an employer’s home or even a non-employer-client’s home are often functionally as “beyond reach” as workers employed by ski resorts or logging camps.
She notes that remote white-collar workers, on the other hand, lose contact with colleagues more than with the outside world, and with legally protected communication spaces (R.I.P., Purple Communications). In neither case does Zhang suggest there is parity between the harms suffered by workers who work at home—their own or someone else’s—but she also does not dismiss the experiences of white-collar workers either in tone or by paying reduced attention to them. Again, it’s a hard balance to strike, but she strikes it well.
Zhang concludes by separating the questions of what should be and what can be. “The potential enforcement challenges,” she writes, “do not erase the concerns about workplace harm.” When you’re dealing with a concept as resistant to analytical scrutiny as “the home,” this is a critical first step because the meaningfulness of any proposed change is inversely correlated to how much it coheres with prevailing attitudes.
But even if Zhang insists on starting from scratch in one respect, she insists on incorporating lessons learned in another—and, given the nature of the task at hand, this is a crucial second contribution. She writes, almost reassuringly, that “[a] lot of traditional enforcement tools can apply to home workplaces, with or without modification.” Reaching back into the article for some of the very same technologies that scared us on first read, Zhang persuasively argues that they are no more intrinsically scary than the demise of the home/office divide itself.
Yes, work patterns and work technologies change—and so too must work regulation. But, says Zhang, work patterns and work technologies change—and so too can work regulation.
