For decades, U.S. labor and employment law has used a binary employment classification system, labeling workers as either employees or independent contractors. Employees are granted a variety of legal protections, while independent contractors are not. However, the explosion of the gig-economy—which connects consumers with underutilized resources—has produced a growing number of workers who do not seem to fit into either category. Though far from traditional employees, gig-workers bear little resemblance to independent contractors. Forced to choose, however, most gig-economy companies label their workers as independent contractors, depriving them of many basic worker-protections. Gig-workers have turned to the courts, hoping to secure employee protections, and judges have struggled to apply outdated multifactor tests to resolve these disputes. Using Uber drivers as a model for workers in the gig-economy, this note argues that such workers are properly classified as employees under the common-law control test, the prevailing legal standard today. However, because of outdated factors and widespread confusion regarding the current employment classification system, reform is necessary. The ABC Test, primarily used in state unemployment-insurance cases, offers the best alternative. The ABC Test limits the number of factors for courts to apply, eliminates the most manipulable and outdated factors, and adds a presumption in favor of employee status. Reforming the classification system in this way will ensure that the law treats gig-economy workers, a growing portion of the modern workforce, as employees with the support of necessary benefits and protections.
A New Take on an Old Problem: Employee Misclassification in the Modern Gig-Economy,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol22/iss2/6