The Gig Economy & The Future of Employment and Labor Law

Citation: Orly Lobel (2016) The Gig Economy & The Future of Employment and Labor Law. University of San Francisco Law Review (RSS)
Internet Archive Scholar (search for fulltext): The Gig Economy & The Future of Employment and Labor Law
Download: https://ssrn.com/abstract=2848456
Tagged: labor (RSS)

Summary

Suggests four non-mutually exclusive ways to reform U.S. worker classification (employee/contractor) in light of the "gig economy".

1. Simplify the classification test

"The classification of employees versus independent contractors proved one of the most notoriously unpredictable , blurry , and malleable legal tests , consisting of anywhere from 3 to as many as 20 factors , depending on which case or regulatory guidance is applied. The 20- factor test established by the IRS has been the most consistently used, and determines employment status by examining the level of control over the worker."

"2015 U.S. Department of Labor "action created new classification guide, with a six -factor test based on the “economic realities” doctrine developed at common law . 40 Under this doctrine, most workers are considered employees for the purpose of FLSA and federal protected -leave laws."

2. Make some issues classification-neutral

Some rights eg free speech (whistleblowing, anti-retaliation) already extend to all workers irrespective of classification; non-discrimination being applied more broadly.

3. Intermediate between employee and contractor

Canada has "dependent contractors".

Another suggestion of new "independent workers" classification with right to organize and collectively bargain.

Worker safety laws could be extended to cover intermediate category.

4. Delink welfare from work

Nordic concept of "flexicurity". Delink social benefits (eg health insurance) from employment relationship.