Reimagining employment in the age of the fourth industrial revolution

Mail & Guardian

2 days ago

Labour laws fall short in the fourth industrial revolution. Graphic: John McCann/M&G
The fourth industrial revolution (4IR) has become a byword for transformation. As entire industries and social norms shift beneath our feet because of artificial intelligence (AI), so too does the very concept of employment.
Less than a decade ago, employment structures were largely rigid, characterised by fixed hours, physical workplaces, and clearly defined responsibilities. The Covid-19 pandemic catalysed a dramatic break from this paradigm. In 2020, the world was forced into a remote-first mode, revealing the limitations of traditional employment models. This transformation, as
To grapple with the legal implications of this shift, we must first understand how the scope of employment — that is, the range of activities an employee is expected to perform — has evolved. Remote work, hybrid arrangements, platform-based jobs and the gig economy are no longer anomalies; they are becoming the norm. Flexibility and autonomy, once considered perks, are now central pillars of modern work culture.
As
For example, remote work has rendered the concept of a fixed workplace nearly obsolete. Work now occurs in homes, co-working spaces or even across countries, raising questions about jurisdiction, supervision and employer responsibility. Gig and platform-based work presents further complexities. Determining whether a worker is an employee or an independent contractor often hinges on vague factors such as control, economic dependence or integration into the business. The rise of AI and automation compounds this further, redefining job descriptions and introducing new tasks that may fall outside traditional employee duties. Additionally, the use of personal devices and remote networks introduces heightened concerns around data security and privacy issues that conventional employment law is not fully equipped to handle.
These changes have legal implications, particularly concerning the 'course and scope' of employment, which is a central doctrine to determining employer liability for acts committed by employees. Historically, courts have interpreted this concept through the lens of employer control and the direct furtherance of the employer's business. If employees were deemed to be acting within the scope of their duties, the employer could be held vicariously liable for their actions. But when an employee was engaged in what courts have termed a 'frolic of their own' or personal pursuits unrelated to their job, the employer would not bear responsibility. An important consideration is that the abandonment-mismanagement rule holds that an employer may still be vicariously liable if an employee, while participating in a personal frolic, partially performs their work duties, thus effectively committing a simultaneous act and omission.
These distinctions, already intricate, are increasingly difficult to apply in the modern world. There are a number of essential questions to be considered. For example, how should courts assess the scope of employment when work is asynchronous, occurring across time zones and digital platforms? What happens when employees alternate between professional and personal tasks at the same time while working from home? How should algorithmic supervision and AI tools factor into evaluations of employer control?
These questions underscore the need for a more dynamic and context-sensitive framework for interpreting the scope of employment — one that reflects the fluidity of modern work rather than clinging to the static definitions of the past.
Equally urgent is the question of who qualifies as an employee. Traditional labour laws were designed with clear, stable employment relationships in mind. But in the gig economy, where many workers straddle the line between contractor and employee, these laws often fall short. If left unaddressed, this legal ambiguity could allow employers to shirk responsibilities around fair compensation, social protection, and worker benefits, undermining the principles of fairness and dignity that labour law seeks to uphold.
Balancing flexibility — a key value for many modern workers — with the employer's need for accountability, productivity, and oversight is no small feat. It requires a recalibration of the legal system. As Mpedi aptly observes: 'Historically, the law has been a largely reactive tool. But, in the age of AI, it cannot remain so.' The legal system must become anticipatory, not merely responsive. It must evolve in tandem with the digital transformation it seeks to regulate.
This means revisiting — and in many cases, redefining — fundamental legal concepts such as 'employee', 'employer', 'work', 'workplace' and 'scope of employment'. Policymakers must also ensure that the rights and protections afforded to traditional employees extend to gig and platform workers, who increasingly constitute a significant portion of the labour force.
Just as nature adapts to survive, so must the law. As we conclude in our book on
AI and the Law
: 'A meaningful subject in our conversations is the necessity for a flexible legal framework capable of adjusting to the rapid progress of AI advancement. Conventional legal ideas and laws created for a world centred on humans frequently prove inadequate when applied to AI.'
If we are to meet the challenges — and seize the opportunities — of the fourth industrial revolution, we must embrace a Darwinian mindset: adapt or risk obsolescence. The future of employment is already here. The law must now catch up.
Letlhokwa George Mpedi is the vice-chancellor and principal of the University of Johannesburg. Tshilidzi Marwala is the rector of the United Nations University and UN under-secretary-general. The authors' latest book on this subject is Artificial Intelligence and the Law (Palgrave Macmillan, 2024).