John Enman-Beech, Two Contractual Futures of Work [2020 C4eJ 55] (Symposium)

[➡︎ read the rest of the symposium]

Jack Enman-Beech*

This commentary tugs on a thread woven through all of the contributors’ submissions: contract. Contract is a set of practices and attendant explanatory discourses used to structure relationships, make plans, and resolve disputes. In particular, contract is used to understand work, and debates about the future of work are in part about the future of contract in work. Some of the trends motivating this symposium can be brought together under the notion that work is increasingly being contractualized. By this I mean three things:

  • More of the working situation is set by contract rather than by employment (or other) law. In particular, technology facilitates the expanded use of contractual powers that always existed in principle, and disguises the control of workers by bosses as worker choice.
  • This shift is supported by discourses that support contract generally, the value of contractual choice and the efficiency of free markets.
  • As contract theory and contract practice equilibrate, we constitute ourselves as workers, and our labour markets, in accordance with the concepts of contract.

This commentary is about the ongoing contractualization of work, the contract stories we tell to explain and justify it, and the counterstories provided by critical contract theory.

At its core, contract means pairs of individual parties choosing the shape of their transaction or relationship for themselves. This is a particular kind of choice—contractual choice—that occurs in a moment of time and binds parties into the future. But there are other kinds of choice: collective choices made by groups, life choices made not in a moment but over time through commitment and recommitment, and spontaneous choices that are only about the moment. There are circumstances where these other kinds of choices seem more robust than contractual choices and can conflict, challenging our intuitions about what autonomy means. There are also other ways of ordering relationships: bureaucratic command, social roles, reciprocal expectation, kinship, and others yet to be imagined, and each comes with its own limits and opportunities for autonomy.

Gig economy platforms such as Hyr, Mechanical Turk, and Uber Works are emblematic of contractualization, but as Veena Dubal vividly illustrates this digital piecework can be read in continuity with a long history of fissuring labour practices. Now, platforms like Mechanical Turk co-ordinate their workers with such efficiency that their time is parcelled out down to cents per minute or per action. Companies like Hyr are generalizing this model to in-person work, so that a restaurant server for instance can pick up work shift by shift. No one here is technically an employee, or so it is alleged, so that wages, times and amounts of work, leave and so on are determined by a series of contracts that workers tap “I agree” to on their phones. These workers make themselves flexible, moulding their days to piecemeal work as necessary to make ends meet. The psychic and conceptual costs of this flexibilization is discussed by Aleena Chia. At the same time, platforms surveil their workers and use manipulative tactics like gamification (for instance, giving a worker a bonus for achieving a “quest” comprising several jobs in a certain period of time) to get them to work more. Valerio De Stefano and Jeremias Adams-Prassl describe how platforms increasingly use AI to surveil and fine-tune worker performance. An algorithm tells a driver to head somewhere before a passenger has appeared, because it has used a wealth of data to predict a need. An algorithm sets a price for a job at the lowest possible level using data about the worker to predict their financial need. As De Stefano explains, all these exercises of algorithmic power are legally sanctioned by contract through managerial prerogative. Every time a worker takes another task, they are making another contractual choice and accepting whatever controls the gig platform imposes.

Contract Stories

There are reasons to support contractual ordering. Contractual choices are expressions of autonomy that deserve respect. Contract facilitates planning and empowers us to perform ever greater feats of interdependence. We might take an economic approach, and note that because both parties agree to a given contract they probably both expect that it will make them better off.

These approaches work better in certain situations than others. The ideal is usually taken to be a business transaction between equally powerful parties in a competitive market. The parties should be good market-liberal subjects, each a homo œconomicus, rationally tending to their interests. If one party has more resources than the other, we doubt that the deal reflects the weaker party’s autonomy. It is also best if the two parties are dealing in a social void. If they have the misfortune of living in a society, their deal might have effects on third-parties that have nothing to do with the third-parties’ autonomy and do not reflect those parties’ valuations.

It easy to mix and match the stories that begin with autonomy for its own sake, and those that begin with maximizing wealth through surplus-producing transactions. It should be no surprise that these two approaches both give an explanation of why we should enforce contractual choices, because both approaches are seeking to justify the same thing—contract. And for the same reason, the theories end up sharing an ideal type: good market-liberal subjects dealing in a good market-liberal society. This is the self-image of the society that produced these approaches, after all, and the approaches are trying to explain the same thing—the existing market-liberal order with contract at its core. Through all these stories, contract naturalizes existing work structures, making them look like the result of free agents and efficient firms rather than the subject of political contest. In this way, contract is one obstacle to projects like that of Igor Shoikhedbrod to revalue and repoliticize work.

As I said, these contract stories are often compelling. Contract is at its best when it provides a vessel for new and imaginative ways of living. By letting people design their own relationships, different people can try out different things instead of fitting “work” into a predetermined box. Contracts play a role in people’s gradual betterment through the trying out of new ways of living. Moreover, contract offers an escape from some flaws of status-based approaches, where people are forced into predefined roles that can be oppressive in their own ways.

Just these same moves are used to support the contractualization of more domains of life, including changes in the nature of work. When work platforms like Uber were new they came with a flock of buzzwords. In the early hype of the sharing economy, we saw a vision of the free agent contracting in their own best interests, making their own choices, unfettered by the strictures of conventional employment. Work any shifts you want! Fit them into your own schedule! In fact the traditional exchange of cash for domination persisted with some regulatory avoidance thrown in. The vision of the free agent charting new contractual waters is a beautiful, partial myth. The dream of something like Uber depended on contract stories of rational individuals making market choices for themselves. Veena Dubal’s article underscores the contrast between these glitzy visions and the reality of some Mechanical Turkers, picking up grains of work in a decimated labour landscape.

Contract Plot Twists

Optimistic contract stories paint visions of free people interacting creatively with each other to make better lives. There are reasons to be skeptical of these stories. The most basic is that, as contract allows people to trade what they already have, its benefits tend to accrue to the better off who already have things to trade. When people have very little, their contracts might not reflect anything like an autonomous choice in need of respect, as when a gig worker takes another job to make ends meet. If the worker is taking the job without feeling they have a genuine alternative, we doubt that enforcing the specific terms of that contract realises the worker’s autonomy.

Another issue is that contractual choices are hard to make. Because they occur in a moment but involve the future, they involve weighing complex and unpredictable possibilities. People are typically bad at this, and a host of biases skew our decisions in manipulable ways. The way piecework flattens time, identified by Dubal, is a built-in feature of contract: presentiation, or prolepsis. Thus conceiving of digital pieceworkers as independent contractors is about more than denying them employment protections. The “time politics” insistence that a gig task occurs over time, in the context of a working relationship and a working life, rather than in an abstract instant, is a rejection of this part of the contractual frame.

Even when we make a contractual choice relatively well, that is with the sense that we have real alternatives and knowing what we are getting into, contractual choice can conflict with other sorts of choice. For example, collective choices made through democratic procedures regularly conflict with contractual choices, and it is not clear how privileging one or the other form choice might manifest autonomy more or less. Consider the minimum wage: it represents a democratic choice that overrides contractual choices in particular circumstances. As workers are rebranded “independent contractors” who can be paid less than the minimum wage, they lose this legal protection in the name of contractual choice.

There are also life choices, which we make over time through a series of commitments and recommitments. For instance, I would say I have chosen my present career path, but there was no one point in time I could point to to say, this is when it happened. While entering into various contracts was a part of my life choice to pursue my career, none of those contracts is itself my career. My choice of career is something I committed to repeatedly, by undertaking  training, by showing up to the office each day, by doing the work. A series of small decisions added up to my life choice. Life choices can be very important, and so we are suspicious when those small decisions add up to something that are other than we thought we wanted. The making of smaller choices that add up to bigger choices is not something that we can avoid, but contract commits us to those smaller choices one by one through various social and legal enforcement mechanisms. It seems this commitment runs counter to our autonomy when it increases the gap between what we wanted our lives to become and what they do in fact become. A contractual choice to take a job can spiral into something much bigger. Perhaps my boss’s unpredictable scheduling practices—that I agreed to in our contract—make it difficult for me to pursue other training, interfering with my broader life plans.

Another way contractual choice can conflict with life choice is through gamification and other manipulative designs. Platforms can use AI-controlled games to manipulate short-term preferences so that I work more instead of attending to other parts of my life. But perhaps, if gamification makes work fun and more productive, it is all for the best? One look at the free-to-play mobile game marketplace shows us that anything can be made fun, and that there are clear formulae for enticing users into repetitive physical and cognitive tasks for imperceptible rewards. It’s not hard to critique the resulting experience. Even though users continue to choose it, we feel there’s something wrong. The players demonstrate a preference for continuing the game, but we have reason to question this preference. We use the language of addiction and obsession to describe this problem. But it is not a problem we can find in existing contract stories, which cloak preference manipulation in “contractual choice.”

Gamification reorients work and leisure through lenses Chia describes including hobbyism and work that one loves to do. Some games look like a colonization of leisure by the technical rationality of contemporary work: the idler replaced by a utilitarian points-maximizer endlessly tapping their phones for unreal rewards. Where these games are funded by ads, the “players” are selling their labour in the form of attention to the game-makers; the game is nothing but an advertisement for itself and for other free-to-play games. A more blurry example would be the recent success of Animal Crossing: New Horizons, a game (mostly) without built-in rewards, that requires players to find intrinsic value in the process of designing and customizing an island village. In the many opportunities AC:NH gives to players for creation and customization of the game world, Nintendo has enlisted its players in a massive joint-project of volunteer game creation, and indeed creation is the point of this particular game. Is this game-making work, leisure, or something else? It is not a coincidence that AC:NH’s release came just in time for COVID-19 [paywalled], with millions of potential gamers sitting at home grasping for things to do. Gamification on gig platforms exploits contract logic, using systematic failures in short-term decision-making to rope workers into working ever more for ever less, replacing whatever value might exist in work in itself with an alien set of valuations that workers are then incentivized to pursue. In contrast, Animal Crossing is cute, and the works of creative interaction it makes available to its players are a prime example of unpaid community building, diverse relationships (see Cynthia Estlund’s valourization of such relationships) that require no compulsion, self-creation through creativity.

Two Futures of Work

Is the science fictional society of the future a perfection of contractual ordering, or something else? I have already suggested that we seem to be moving in a direction of ever greater contractual control over the details of workers’ lives. Gig platforms allow businesses to fill last-minute needs and vacancies, as when a regular employee gets sick. They let workers pick up shifts only when they want, and to work very part time if that is their preference. Platforms can make it easy for workers to change bosses, and for bosses to change workers, increasing the fluidity of the labour market. Increased fluidity likely has positive effects on real wages, employment rates, and worker voice. So perhaps work, even for skilled for-now-in-person jobs, will continue toward ever-smaller discrete chunks. Workers will develop portable skills and unbundle tasks into marketable, manipulable chunks. They’ll become the image of the commodified agent, everyone a rugged Han Solo trolling for bounty.

In a sense gig platforms are the perfection of contract. The task-by-task basis for agreements means that these contracts are less incomplete than contracts for work generally are. A larger portion of the contract is determined up front in a consensual way rather than acquiesced-to by an already entrenched worker. Perhaps this can afford workers more freedom to control their lives, to choose the shifts they want and (in some industries) even the bosses they want day-by-day, not to have to put up with a boss’s misbehaviour before moving on and giving them a zero-out-of-five-star rating.

But similarly, no one boss acquires a responsibility over time for a given worker, for the parts of their life that extend beyond the job. It seems plausible that apps like Hyr will grow in power and scope, providing bosses (particularly in already more precarious industries) with a raft of potential workers on call at all times who have to accept shifts at short notice or get bad reviews, without the benefits and protections of a past generation of employment regulation.

Both these visions of contract life—optimistic and pessimistic—are consistent with different parts of our contractual stories. We will not be able to defend the pessimistic vision by saying that workers made their contractual choices, because of the ways these choices are not really their own. And we should not blithely rely on workers’ contractual choices to promote the optimistic vision of contract life, because of contract’s conservative power. Different modes of choice, more expressive of autonomy, need to be considered.

Such new contractual forms can both excite and challenge. Are we moving toward a world of tailored contracts for every minute of human life? In which people are able to exercise genuine choice, rather than fatigued acquiescence, over their legal relationships? And how will we evaluate the justice of such arrangements?

Contract works best when contracting parties fit market-liberal ideals—independent, equally-powerful businesspeople rationally bargaining over terms to come up with something that satisfies the preferences and plans of both. As contract theory and contract practice equilibrate, we seem to be reconstituting ourselves as workers and our markets for work in accordance with these ideals. The best defences of the changing order are old contract stories that feel increasingly inadequate to how we actually make choices and what we actually care about. If there is something good to contract life then these societal transformations might bring us closer to that freedom. If on the other hand contract life proves empty, these transformations will empty us out in the name of a hollow ideal.

* SJD Candidate, University of Toronto, Faculty of Law.