Private Law Theory

ABSTRACT
Individuals have worked, are working, and will work in homes. During the COVID pandemic, the home was once the most common workplace. However, work law does not consistently treat the home as a workplace by default. Judges, politicians, and other lawmakers continue to entrench an ideological intuition that characterizes home as less coercive, less productive, less visible, and, by extension, a space that the state can and should regulate less than institutional workplaces. This vision legally constructs the home as lacking legal ‘workplace-ness’ or possibly the opposite of a workplace. It not only results in substandard labor rights for workers who labor in homes and the systematic under-valuation of their work but also marginalizes their reality of work in conceptualizing workplace harms and protection. Naming this ideology ‘home as non-workplace’, this Article comprehensively traces current work law’s spatial bias, challenges its validity, and envisions a framework to normalize the home workplace in work law.

This Article critically examines the home-as-non-workplace ideology in the following ways. First, it restores the ideology to its contested historical particularity by tracing the rise, contestations, and partial fall of the home/workplace dichotomy in work law from pre-New-Deal to contemporary times. Second, it maps the various inconsistencies across different bodies of work law’s approach to home-based work, including both domestic service and work-from-home white-collar work. Third, it challenges the most entrenched rhetoric opposing labor regulation in the home – family privacy – with the reality of employers’ extra surveillance of home-based work that the law enables and, in some cases, mandates. Finally, this Article proposes a framework that puts the home workplace at the center of work law discussion, including its conceptualization of workplace harms and regulation enforcement. The material transformation of home and work has laid the foundation for law and legal consciousness to see the home as just another workplace, if not the default workplace.

Zhang, Yiran, Home as Non-Workplace (March 11, 2024).