Unintended Consequences of Regulations: Contracting Companies

recent New York Times article tells the tale of two janitors. One at Eastman Kodak in the early 80's had their education paid for and later worked her way up to CTO, later going on to be a senior executive at other companies. The other is at Apple today and doesn't even directly work for Apple. She has minimal benefits and no obvious path for career advancement. That's in large part because she works for a company that contracts out her labor and not for Apple directly*.

The narrative the Times advanced is that companies chose to focus on their core competency and have outsourced other work. Most modern tech companies have decided to focus on their most productive employees and are letting contractors deal with the supposedly interchangeable employees working on low skill problems.

What many people don't see is that this is not an economic relationship that has sprung out of thin air. A lot of it can be interpreted as a company's logical response to the regulatory environment. There are at least three different areas that incentivize companies to keep low skilled workers at arms-length, only hiring them through secondary employers. There are laws around unionization, legal risks from the Equal Employment Opportunity Commission and the Affordable Care Act has made the choice even more clear from a cost perspective.

At first glance, it's obvious why laws about unions would cause companies to choose to contract their labor. For companies that are innovating quickly, becoming unionized raises the spectre of what happened to Detroit auto companies. The long term accumulation of rules and resistance to automation that would cost jobs helped cause the Big Three to fall far behind their more nimble competition from Japan. As Steve Babson puts it in "Working Detroit: The Making of a Union Town"

"The absence of union factory rules gave Japanese management the flexibility to change workloads and reassign jobs without opposition but it also left workers with little protection against speed-up of favoritism."

Today's tech companies need to move fast and keep up with a quickly changing technology landscape, so their instinct is to avoid unionization. How do they do this? First, they spoil their workers more than any union ever did. Companies provide meals, social events, gym memberships and some tech companies even do laundry for employees. This is a multi-purpose policy, not only do these perks discourage talk of unionization, they are also meant to encourage employees to spend more time at work and make them less likely to leave the company even when they are being paid significantly under their market price.

But keeping the higher skilled employees is only part of the equation. The second is keeping employees that are likely to unionize outside of the company. Low skilled workers are most likely to form unions. Unions might possibly strike and upset the sympathetic high skilled employees. The laws empowering the National Labor Relations Board grants union employees specific protection. But those protections stop when they target employers other than their own. From the NLRB FAQ:

"A union cannot strike or picket an employer to force it to stop doing business with another employer who is the primary target of a labor dispute."

After looking at this rule, it should be obvious why companies would want to avoid giving employment status to a class of workers that are unionized or might decide to form a union in the future. By hiring these workers through another employer, they are shielding themselves from the more inconvenient aspects of labor law.

Next we have the Equal Employment Opportunity Commission. The EEOC does not only look for employers who are discriminating in hiring based on age, race, sex, etc. They will also punish treatment of employees based on these factors. If a corporation wants to treat some employees as first class employees with more benefits and another group as second class, they would have significant legal risk when the second group consists of employees that are more likely to belong to a protected class. (And the Times piece does mention how there are legal requirements that employees are offered the same health insurance and 401(k) benefits.) The EEOC will be collecting pay data by sex, ethnicity and race. Under this scenario, it will look a lot better for everyone involved to continue contracting out the low paid jobs.

On top of all of this we have the Affordable Care Act's impact on full-time employment. The ACA puts the burden of providing healthcare fully on full-time employers while leaving part time employers and contract workers almost completely off the hook. The question of who should be responsible for healthcare payments is a political question, but it should be applied equally to all types of employment relationships. Two part-time employees working 20 hours a week should cost an employer the same as a single full-time employee working 40 hours a week. That's not the case today, the 40-hour workweek employee is more expensive. And rather than be the bad guys who are hiring part time workers to avoid paying for health insurance, it is easier for corporations to pay another company to hire and manage workers in this manner.

When designing and implementing policy, it's hard to account for the long-term impact. In this case, the incentives created by multiple regulatory bodies have combined to raise the risk and cost of full-time low-skill employees. They are highly incentivized to hire another company to shield them from a direct relationship. Laws that were originally intended to protect people and keep society integrated might be serving to bifurcate it even further.


*On top of the low wage she pays inordinately high rent to live in the area. A significant part of the struggle of low wage workers in the Bay Area comes from the lack of affordable housing. Most people should realize by now that this is an artificial hardship imposed on the poor by voters who think they are preserving the character of their neighborhood, preventing sprawl or protecting the environment. In reality, the main concern of voters is boosting the value of their house after they have locked in the amount of taxes they have to pay thanks to California’s Proposition 13.