Work beyond the bounds: a boundary analysis of the fragmentation of work

Introduction

Scholars of work and employment have examined many different types of labour – from paid domestic work to unpaid housework, from formal sanitation work to informal waste picking and recycling, from exotic dancing to illegal sex work. Despite the clear diversity of experiences established as ‘labour’ in these literatures, most studies accept as unproblematic the basic distinction between ‘market’ work and these other types of labour, whether ‘nonmarket’, ‘informal’ or ‘underground’ (Zatz, 2009). While market labour is generally defined as paid work that is monitored and regulated by the state, other types of labour are defined by their divergence from this definition – as unpaid, unregulated and/or illegal. In the USA, such types of labour include internships, prison labour, sex work and housework – diverse categories of work which currently take place outside of the paid, state-regulated labour market. Yet the distinctions between these types of labour and market work are not natural or obvious; the categorization of work itself – the creation and maintenance of these distinctions – should be a central point of interrogation (Zatz, 2009).

This article draws on the rich scholarship on various types of nonmarket, informal and underground work to analyse how these categories of labour fit together in a broad yet fragmented landscape of work. In so doing this article identifies the boundaries by which these categories of work are created, maintained and policed. There are two primary types of boundaries analysed here: social and legal boundaries. Social boundaries are patterns of inclusion and exclusion based on social inequalities, dividing workers and their jobs on the basis of social hierarchies. Legal boundaries are formal divides between workers which have been codified in law and are enacted in two forms: as rights and as constraints. Legal rights boundaries divide workers through unequal access to employment rights, as not all workers are equally protected by labour and employment laws. Legal constraints boundaries divide workers through differential limits on workers’ economic independence, as not all workers are equally free to pursue alternative employment, exit their jobs or challenge problems in the workplace.

Taken altogether, social, legal rights and legal constraints boundaries have significant material consequences for the workers categorized by them. Labour that falls outside the paid, state-regulated market is more likely to be devalued culturally (e.g. not seen as ‘real’ work) and economically (i.e. paid less than the ‘market rate’) and is more likely to be unduly coercive and exploitative. Such penalties may be compounded for those workers who are divided from the ‘market’ along more than one boundary, which is prevalent because these boundaries overlap. Indeed, social, legal rights and legal constraints boundaries are mutually constitutive and reinforcing: social inequalities may be codified in law as legal boundaries, which then recursively reproduce inequality; legal boundaries – even when not built on social inequalities – create and sustain inequality by institutionalizing differential access to rights and protections. As such dynamic processes would suggest, these boundaries are neither natural nor static. Similar to the categories of work they help create, social and legal boundaries are social constructions; they are actively created, reproduced and challenged by various actors through ‘boundary work’ – that is, efforts to shift them to include more workers in the category of ‘market’ work, or exclude them. These boundaries are thus sites of cultural contestation where substantial costs and benefits are at stake.

This article creates an analytical map of these boundaries to make visible the social and legal processes that fragment labour into the categories ‘market’, ‘nonmarket’, ‘informal’ and ‘underground’ work. This map thus moves beyond the commonly deployed binary of ‘good’ and ‘bad’ jobs in traditional market employment to examine a broader range of productive labour – including unpaid housework, graduate student research, workfare, drug dealing, immigrant guest-work and prison labour – and conceptualizes their categorical relationships to each other and to the ‘market’. Doing so highlights the processes that create and sustain these categories of work, for the same boundaries that divide ‘nonmarket’, ‘informal’ and ‘underground’ work from the ‘market’ – and thus demarcate their relative disadvantage – also help construct ‘market’ work and its relative privilege. By systematizing the points of connection and departure between all of these categories of work, the boundary map presented here makes the fragmentation of work itself the subject of analysis, offering a basis for much needed comparative research across many different types of labour. It is hoped that such research will lead to greater insight into the causes and consequences of the fragmentation of work and, ultimately, into the relationship between work and inequality. Therefore, although the boundary map developed here is based on the US context, it is hoped that similar maps will be drawn of other cultural contexts as well to show how social and legal boundaries fragment work and sustain inequality across territorial boundaries.

Boundaries

Boundaries have long been a central topic of concern in sociology, as they ‘play an important role in the creation of inequality and the exercise of power’ (Lamont, 2001: 15341). Yet they have been only minimally deployed in studies of work and employment (Vallas and Cummins, 2014). This lack of attention may be partially explained by boundary scholars’ focus on the micro-social level – the symbolic boundaries that are created by ‘social actors to categorize objects, people, practices, and even time and space’ (Lamont and Molnár, 2002: 168). While these individual-level boundaries are of crucial importance, no less in studies of workers and work organizations, they may be of limited use in examining broader socio-economic phenomena such as the fragmentation of work.

Yet the concept of boundaries can also be applied at the structural level through analysis of ‘objective’ boundaries, or the ‘actual exclusion’ of some people from groups and institutions, as distinguished from their ‘potential’ exclusion derived from symbolic boundaries (Lamont, 1992: 12). Lamont and Molnár (2002: 168) call these ‘social boundaries’, defined as ‘objectified forms of social differences manifested in unequal access to and unequal distribution of resources (material and nonmaterial) and social opportunities’. In short, these boundaries are ‘identifiable patterns of social exclusion’ (Lamont and Molnár, 2002: 169). In the sections that follow, this article further elaborates the concept of ‘social’ or ‘objective’ boundaries, identifying two distinct but overlapping types: first, those that emerge from social inequalities and are thus labelled ‘social boundaries’, conforming to Lamont and Molnár’s (2002) terminology; and second, those that emerge from legal inequalities – particularly unequal access to legal claims and the unequal imposition of legal constraints – which are labelled ‘legal boundaries’.

Social boundaries

Social boundaries, as conceptualized here, are patterns of exclusion based on social inequalities, which – depending on the cultural context – may include inequalities of race, ethnicity, gender, class and citizenship, as well as employment status, ex-offender status, age, sexuality, ability and more. These boundaries are social constructions that vary over time and across space; and the particular cultural configurations of social privilege and marginalization vary accordingly. In the USA, marginalized groups include immigrants, prisoners and welfare recipients – people who are often marginalized along multiple axes of inequality, or ‘multiply-burdened’ (Crenshaw, 1989). Thus, as deployed here, the concept of social boundaries draws on intersectionality theory, which highlights the intersecting and compounding nature of inequality and oppression and problematizes race, gender and class as stand-alone analytic categories (Crenshaw, 1989; McCall, 2005). As a result, social boundaries are not conceptualized as simple lines drawn between races, genders and classes; rather, they are conceptualized as a series of Venn diagrams in which the circles intricately overlap to represent all possible combinations of social privilege and marginalization at that historical moment. This image is, not surprisingly, too complex to present here. The simple ellipse in Figure 1 is meant to stand in for this multidimensional understanding of inequality, signifying relative social marginalization inside the ellipse and relative social privilege outside of it.

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Figure 1.

Social boundaries.

As shown in Figure 1, social boundaries – along with the legal boundaries analysed below – are mapped onto a basic schema of work, which distinguishes between paid and unpaid labour and labour in the private sphere versus labour in the public sphere (i.e. in private households versus outside them) (Daniels, 1987). This schema highlights some of the primary differences between ‘market’ work and other categories of labour and thus helps make visible the fragmentation of work across these boundaries.

Although work scholars generally do not use the analytical tool of social boundaries to do so, they do examine the relationship between social inequalities – specifically workers’ race and/or gender – and the economic value of work. For instance, research shows that jobs dominated by women or African Americans experience significant wage penalties in the USA, net of individual-, organization- and occupation-level characteristics (Cohen and Huffman, 2003; Kmec, 2003; Levanon et al., 2009). Several mechanisms produce such effects, including status composition, which is the ex post facto devaluation of work performed by marginalized populations (also known as ‘devaluation theory’), and status closure, which is the funnelling of marginalized populations into low-wage work (or ‘queuing theory’) (Tomaskovic-Devey, 1993). Furthermore, not only are the jobs associated with marginalized populations devalued, so are the skills. Research shows that jobs that involve interactive service work in the USA, which is socially constructed as ‘feminine’, pay less than other jobs after controlling for sex composition, education and skill requirements (England et al., 2002).

Gender scholars’ analysis of unwaged ‘women’s work’ provides a particularly valuable model for examining how social inequalities are used to differentiate some types of labour from ‘market’ work. Through analysis of women’s unpaid care work, volunteer work and housework, gender scholars demonstrate that women’s ostensibly ‘nonmarket’ labour is structurally linked to the market, even as it is culturally constructed as separate from (and less valuable than) men’s waged labour (Dunaway, 2014; Glenn, 2012; Gottfried, 2012). For instance, Dunaway’s (2014) volume analyses the role of women’s reproductive and domestic labour in transnational commodity chains, identifying the household as a primary site of productive labour in the global economy. The present article extends this analysis beyond gender inequality and traditionally defined ‘women’s work’ to argue that social boundaries – documented patterns of marginalization and privilege across gender, race, class and other axes of inequality – fragment work into differentially valued categories of labour.

Legal boundaries

Legal boundaries are formal divides between workers that have been codified in law and generally fall into two categories: those that divide workers through unequal claim to legal rights and those that divide workers through the unequal imposition of legal constraints. As conceptualized here, legal rights and legal constraints generally adhere to socio-legal scholars’ distinction between laws that ensure the ‘freedom to’ and those that ensure the ‘freedom from’, which stem from the Kantian concepts of positive and negative liberty. In the USA the ‘freedom to’ is inscribed in laws that affirm workers’ right to a minimum wage, to organize and bargain collectively and to labour in safe and healthful workplaces. The ‘freedom from’ is inscribed in laws that prohibit employment discrimination, workplace harassment, retaliation for filing employer complaints, slavery and involuntary servitude. All workers do not have equal claim to these freedoms, which gives rise to the legal boundaries described below.

Legal rights boundaries

Legal rights boundaries arise when workers do not have equal entitlement to labour and employment rights. Like social boundaries, legal rights boundaries are social constructions. They emerge from a particular socio-legal environment, which in the USA is structured by laws such as: the Fair Labor Standards Act, which delineates workers’ right to minimum wage and overtime pay; the National Labor Relations Act, which defines workers’ right to organize and bargain collectively; and the Occupational Safety and Health Act, which affirms workers’ right to safe working conditions. Each law defines its own boundary between those workers who may claim its rights and those who may not; and these definitions vary across statutes. For those workers who are not explicitly included in or excluded from these laws, US courts make coverage decisions on a case-by-case basis.

The result is that workers are not uniformly protected by labour and employment laws. While many workers have broad access to legal rights in the USA, some – such as prisoners – have exceptionally limited legal rights as workers; other workers fall in the middle, with partial or uneven legal capacity to make rights claims. This is the case for workfare workers, who are welfare recipients required to work for their cash benefits, rental assistance and food stamps in the USA. American workfare workers are generally not eligible for unemployment insurance and workers’ compensation and they do not have a legally protected right to bargain collectively; yet they are supposed to get the equivalent of the minimum wage in public assistance. As a consequence, legal rights boundaries, like social boundaries, do not create a simple binary of workers with and without legal rights. Instead, rights boundaries should be conceptualized as another complex Venn diagram in which each circle represents a particular employment right and the various circles overlap to identify the multiple ways that workers have more or less claim to such rights. The ellipse pictured in Figure 2 is a simplified representation of this, signifying limited access to employment rights inside the ellipse and comparatively greater rights access outside of it.

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Figure 2.

Legal rights boundaries.

Extensive boundary work is deployed to create and maintain legal rights boundaries. US courts and other state actors do so, in part, through legal euphemisms that classify some types of labour as something other than ‘work’ and some types of labourer as something other than ‘workers’. For instance, until 2013 US home-care workers were legally categorized as ‘companions’ rather than workers, which justified their exclusion from minimum wage and overtime pay (though, as of this writing, they do not yet have access to these rights despite their legal re-categorization). Additionally, in the USA workfare workers are said to be ‘volunteers’ (Goldberg, 2007; Krinsky, 2007), prisoners are said to be in ‘rehabilitation’ (Zatz, 2009) and unpaid interns are said to be getting ‘training’ and ‘educational experience’ (US DOL, 2010) – all of which similarly justifies their exemption from the Fair Labor Standards Act. Such boundary work reifies the demarcation of these workers’ labour as distinct from traditionally defined market work.

There has been substantial intersection between legal rights and social boundaries in the USA, which compounds workers’ legal exclusion and social marginalization. The historic exemption of farm workers and domestic workers from New Deal economic legislation is a case in point. In the 1930s agricultural and domestic labour employed the bulk of African American workers in the American South. When New Deal legislations were enacted, establishing the foundation of employment law in the US, both farm and domestic workers were explicitly excluded from every statute, including old-age pensions, unemployment insurance, minimum wage, overtime, child labour restrictions and the right to unionize. According to Linder (1992: 127), all of these exclusions – except, perhaps, for the right to unionize – can be ‘unambiguously’ traced to racial discrimination. Thus African Americans’ already difficult struggles for economic and social equality in that Jim Crow era of legalized racial segregation were intensified by their exclusion from employment rights. Since that time, both farm and domestic workers have challenged their legal exclusion, pushing back against these boundaries to gain greater – though still incomplete – access to rights in the workplace.

While previous studies detail how particular types of labour are excluded from particular legal rights, the present article takes a bird’s eye view to argue that the process of constructing such distinctions is itself worthy of study. As one of three interrelated and compounding processes that fragment work, legal rights boundaries institutionalize differential access to employment rights across categories of labour.

Legal constraints boundaries

Legal constraints boundaries emerge from unequal protection by ‘freedom from’ legislation and thus the uneven imposition of limits on workers’ economic independence. Like the rights boundaries described above, legal constraints boundaries are produced by a particular socio-legal system. In the USA many workers are legally ensured freedom from various forms of workplace mistreatment, including discrimination, harassment, retaliation, bondage and enslavement. Yet not all workers enjoy such freedoms. American prisoners, workfare workers and immigrant guest-workers are not fully free to exit their jobs and pursue alternative employment. (Indeed, US prisoners are exempted from the constitutional prohibition on slavery and involuntary servitude.) Moreover, if these workers resist work or contest problems in the workplace, they may face significant retaliation, such as solitary confinement and/or longer sentences for prisoners, disrupted or terminated public assistance for workfare workers and financial arrears and deportation for guest-workers. By not being protected from such retaliation, while also being required to labour for an assigned employer, these groups are subject to legal constraints that limit their economic independence, which is essential to the expression of citizenship rights (Glenn, 2002; Marshall, 1950).

The example of immigrant guest-workers highlights the distinction between legal rights and legal constraints boundaries, while also demonstrating their converging consequences for workers. Like many workers in the USA, guest-workers have access to most labour and employment rights, including the right to minimum wage and overtime compensation, the right to organize and bargain collectively, the right to a safe workplace and the right to compensation for workplace injuries. However, because of the added legal constraints imposed on guest-workers by the federal immigration system, they have dramatically different work experiences than most American workers. As per regulations of the US Citizen and Immigration Services, guest-workers in the USA are bound to a single employer; they are not free to exit their jobs and pursue alternative employment. As a consequence, guest-workers effectively lose their claim to many employment rights, even as they retain such rights on paper. Reports suggest that employer abuse, wage theft and breach of contract are widespread among guest-workers; yet their only recourse is to return to their country of origin, thereby losing not only a coveted economic opportunity but also the chance to pay the (often significant) debt required to obtain it (SPLC, 2009). The result is that some guest-workers remain in dangerous, low-wage and even abusive working conditions – a situation that compelled US Representative Charles Rangel to describe the American guest-worker programme as ‘the closest thing I’ve ever seen to slavery’ (SPLC, 2009: 2).

There is, of course, variation in the extent of the limits on these workers’ economic independence: incarcerated workers are highly economically constrained, while workfare workers and guest-workers are less so. Yet the economic independence of all these workers is significantly more limited than that of ‘market’ workers in the USA. Figure 3 presents this simplified construal, signifying increased legal constraints within the ellipse and no added constraints outside of it.

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Figure 3.

Legal constraints boundaries.

Just as social and legal rights boundaries overlap to compound workers’ marginalization and rights exclusion, legal constraints boundaries also intersect with these boundaries to intensify their effects. This is illustrated in high relief by the relatively extreme example of incarcerated labour in the USA. American prisoners are characterized by high levels of social marginalization; they are disproportionately non-white and poor, and are further marginalized by their imprisonment (Wakefield and Uggen, 2010). Incarcerated workers’ marginalization is deepened by their lack of access to many employment rights, including the minimum wage, workers’ compensation and unionization (Zatz, 2009). Moreover, they are not freely allowed to refuse work, pursue other employment and contest problems in the workplace. As a result, American prisoners’ economic independence is limited, which increases both their social marginalization and intensifies their exclusion from legal rights.

In identifying the uneven imposition of legal constraints as a key divide in the fragmentation of work, this article looks beyond the specific laws that structure particular jobs to recognize the partitioning of legal freedoms as a structural boundary that institutionalizes differential access to economic independence.

Discussion

With this conceptual framework in place, it becomes possible to map various categories of labour across social and legal boundaries. Figure 4 presents such a map for the USA, highlighting many of the diverse categories of labour that are separated from the paid, state-regulated market. Most of these types of labour are divided along social boundaries: from farm work to the labour of the disabled (who can be paid below the federal minimum wage in the USA), from illegal sex work to workfare, these types of labour are predominantly performed by socially marginalized populations who are often multiply burdened by social hierarchies of race, gender, class, citizenship and ability. Furthermore, as shown in Figure 4, nearly all of these types of labour are divided from market work by legal rights boundaries and, as a result, such workers are excluded from the full range of employment rights accorded to most ‘market’ workers. Such categories of labour include unpaid internships and student athlete work, unpaid housework and paid domestic labour, informal labour and illegal work. In addition, a few of these types of labour – guest-work, workfare and prison labour – are separated from the market by legal constraints boundaries and, as a result, these workers’ economic independence is significantly limited. All of these penalties are intensified for those categories of labour that are separated from the ‘market’ along multiple boundaries.

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Figure 4.

The fragmentation of work in the USA.

This boundary map allows for new systematic comparisons across seemingly incomparable categories of work. Consider, for example, internships and workfare. In the USA, these are seen as two very different types of labour: unpaid internships are generally regarded as coveted positions that connect privileged college graduates (who can afford to go without pay) to elite jobs; workfare is seen as a way to break the ‘cycle of poverty’ by requiring welfare recipients to work for public assistance. However Figure 4 highlights the points of connection and departure between these outwardly unrelated categories of labour. Both internships and workfare are unpaid and in the public sphere and both are excluded from many of the legal rights available to other workers. Yet workfare workers are socially marginalized while interns are (generally) not; and workfare workers have legal constraints that limit their economic independence while interns do not. This boundary map thus identifies ‘commonalities between phenomena inserted in very different political and economic contexts’ (Portes et al., 1989: 3), while also highlighting the processes that create and maintain them.

Instead of reifying these categories of work and the boundaries that separate them, this analysis is meant to problematize and destabilize them. This is accomplished, in part, by recognizing the categorization of labour itself as a central subject of inquiry, which not only reveals such categories to be social constructions rather than economic facts, but also begins to uncover the power relations inherent in this boundary work. For example, this map helps make visible efforts to shift such boundaries to include new workers in the ‘market’ – or to affirm their exclusion. A recent example of such boundary work involves workfare workers. Despite workfare workers’ attempts to gain legal rights by framing their labour as ‘work’ and themselves as ‘workers’, their efforts have been steadfastly challenged by various branches of the US welfare system that insist they are ‘volunteers’ (Goldberg, 2007; Krinsky, 2007). As the author’s unpublished research has shown, the New York City Human Resources Administration recently adopted a new strategy to ensure these workers’ exclusion from legal rights: labelling them ‘interns’. Although workfare does not fit easily into the official definition of unpaid internship (see US DOL, 2010) and although workfare seems worlds apart from internships in the American cultural imagination, this slippage between the ill-defined category of unpaid workfare and the comparatively well defined category of unpaid intern problematizes each category in turn and its distinction from market work.

Conclusion

Instead of examining particular categories of ‘bad’ work, this analysis highlights the social processes, or boundaries, that distinguish many types of labour from traditionally defined ‘market’ work. In so doing, it draws attention to some of the contours of privilege and marginalization in the world of work. Not detailed here, however, are those that subdivide the category of market work itself, as evidenced by the wealth of research on standard and nonstandard employment, ‘good’ and ‘bad’ jobs (Kalleberg, 2011). While acknowledging the significance of such divides, the present article widens the lens to analyse the broader fragmentation of work, of which market work is only one piece. In this analysis, the ‘market’ is shown to be a relatively privileged site of culturally and legally defined ‘real’ work, while other types of labour – ‘nonmarket’, ‘informal’ and ‘underground’ – are culturally and economically devalued by comparison, albeit to varying extents.

This boundary map thus provides the analytical structure for new comparative research across diverse categories of labour, which will lead to a broader understanding of how the fragmentation of work sustains inequality. Among many potential research questions, scholars might explore how similar mechanisms – such as cultural narratives of ‘real’ work and workers and legal definitions of ‘employee’ – are used to devalue otherwise dissimilar categories of labour; what strategies different types of workers deploy to challenge these boundaries; and how the social and material consequences compare for those workers who fall outside the ‘market’ along similar boundaries. These and other research programmes will likely reveal how particular configurations of state power and hegemonic gender, race and class ideologies have helped fragment work into categories of low-wage or no-wage work – work that may be unduly difficult and dangerous, coercive and punitive. Indeed future research may reveal coercion to be the dominant thread that links together many of these types of labour, rather than the precarity which characterizes much ‘market’ work today (Kalleberg, 2011; Standing, 2011; Vosko et al., 2009). Ultimately, it is hoped that this boundary analysis will allow for a more expansive analysis of work and employment, one that extends beyond the traditional confines of such scholarship to examine the full range of human labour and the processes by which law, history and culture shape the structure of work and sustain inequality.