Reimagining Workers’ Rights in the Gig Economy: Bridging the Gap Between Independent Contractors and Employees
8.5.2025
The gig economy has not merely disrupted the labor market; it has redefined its architecture. Platforms such as Uber, Lyft, and DoorDash now mediate vast swaths of economic activity, reconfiguring the relationship between labor and capital through algorithmic control, dynamic pricing, and the offloading of risk. During the COVID-19 pandemic, gig workers were cast as “essential,” yet their legal invisibility persisted. The crisis did not create their precarity – it merely revealed the structural vulnerabilities embedded in the platform model.[1] As Cherry and Rutschman observe, gig workers remained structurally invisible even as they were functionally indispensable.[2]
At the heart of this contradiction lies the problem of legal classification. This legal paradox is not new. In United States v. Silk, the Supreme Court recognized that classification must turn on “economic reality rather than technical concepts.”[3] Yet in the platform age, “reality” is increasingly shaped by algorithms.[4] As the UK Supreme Court held in Uber BV v. Aslam, control can be algorithmic, opaque, and real – regardless of formal contractual labels.[5] The U.S. framework has not caught up. Most gig workers are categorized as independent contractors rather than employees, rendering them ineligible for fundamental protections under wage and hour laws, anti-discrimination statutes, and collective bargaining frameworks.[6] Critics argue that this binary framework no longer reflects economic reality. As Stewart and Stanford contend, digital platforms have created a hybrid model in which control is exercised without responsibility, and workers are managed without being formally employed.[7]
This article presents a solution for this problem. Building on comparative models and empirical data, it proposes the Fair Tiered Classification Framework (FTCF), a three-tier federal framework that preserves genuine flexibility while extending core protections to platform workers. The objective is not to dismantle the gig economy, but to recalibrate its legal foundation
The Collapse of Classification: Legal Tests in a Gig Economy
The legal architecture governing worker classification was never built to withstand the structural shock of the platform economy. Traditional tests – crafted for industrial hierarchies and physical workplaces – are unraveling in the face of digital intermediation, algorithmic control, and fractured responsibility. Platforms like Uber and Lyft operate without conventional oversight, yet they dictate terms with granular precision. The result is a fundamental mismatch between legal doctrine and lived economic reality.
At the foundation of employment status under common law lies the control test. As articulated by the Supreme Court in Nationwide Mutual Insurance Co. v. Darden, the test focuses on the right to control the manner and means of work, including how, when, and where tasks are performed.[8] But this formulation presumes a visible manager, direct instructions, and linear hierarchies. In contrast, gig platforms orchestrate labor through algorithms that regulate acceptance rates, deactivation risks, customer ratings, and payment incentives.[9] Control has not disappeared – it has been digitized and disguised.[10]
Consider this: an Uber driver who falls below a 4.6 rating can be automatically deactivated, regardless of effort, tenure, or explanation. They cannot challenge the decision meaningfully, nor see the algorithm’s reasoning. Far from signifying independence, this system enforces automated subordination behind a façade of flexibility. The common law test, in its current form, lacks the tools to decode this new modality of control.
The economic realities test, developed under the Fair Labor Standards Act, purports to shift focus from formal control to dependency.[11] It asks whether the worker is economically reliant on the hiring entity for livelihood, a concept meant to protect those with weak bargaining positions. In theory, this approach captures structural inequality. In practice, it falters. Gig workers may appear independent, juggling multiple platforms, yet their economic choices are constrained by dynamic pricing systems, opaque commission structures, and unilateral fare adjustments.[12] Platforms set the rules, and workers absorb the risks.[13]
The IRS 20-factor test attempts to blend behavioral, financial, and relational indicators to capture the complexity of modern work.[14] But in the context of platform labor, its categories lose coherence.[15] Gig workers may own their tools, choose their hours, and receive no training – yet their access to jobs, clients, and income remains tethered to platform architecture.[16] On Airtasker, for instance, workers are bound by platform-enforced terms, and visibility depends on ratings, client reviews, and bidding compliance.[17] David Weil’s “fissured workplace” offers an alternative model.[18] Unlike the formalistic tests of employment law, Weil identifies the structural design by which corporations retreat from direct employment while maintaining functional authority.[19] Platforms fragment responsibility by pushing labor into a network of nominally independent actors, yet retain command through surveillance, pricing, and workflow design.[20] The legal façade is one of decentralization; the economic reality is command without consequence.[21]
These legal tests – common law, statutory, regulatory – fail not because they are poorly reasoned but because they were calibrated for an economic system that no longer exists.[22] When these legal tests were crafted, control was physical, integration was vertical, and the employer was visible.[23] Today, control is algorithmic, integration is networked, and the employer is concealed behind platform interfaces.[24] Doctrinal inertia has created a regime where classification lags decades behind technology, leaving millions in legal limbo. The path forward demands more than doctrinal adjustment; it requires a jurisprudential reckoning with the very categories of labor law.
Fragmentation and Fiction: The Legal Patchwork of State-Level Response
The legal treatment of gig workers in the United States rests on a fractured terrain of state-by-state regulation, where innovation often meets resistance and progress remains uneven. Efforts to resolve the classification dilemma have generated a patchwork of legislation that deepens, rather than resolves, the instability of platform-based labor. This disjointed legal map produces inconsistencies not only across jurisdictions, but within them, as courts, legislatures, and ballot initiatives respond to the platform economy with conflicting mandates.
California’s Assembly Bill 5 marked a watershed moment in the redefinition of employment.[25] Codifying the ABC test from the Dynamex decision, the legislation introduced a presumption of employee status that could only be rebutted if the platform proved the worker operated without employer control, performed work outside the usual course of business, and maintained an independent trade.[26] The statute aimed to recenter labor law around substance rather than contractual form. Yet before the statute could recalibrate platform labor in practice, Proposition 22 reversed its core application by exempting app-based transportation and delivery companies.[27] This legislative retreat, drafted and funded by platform corporations, carved out a loophole with constitutional status, preempting future legislative correction.[28] The result was not legal clarity, but a dual system in which gig workers within a single industry could be simultaneously protected and excluded, depending on the identity of the platform.
From the perspective of platform companies, these state-level divergences reflect not regulatory failure but adaptation to worker preferences and economic conditions. Uber and Lyft argue that most drivers neither want nor need employee status, citing internal surveys in which more than 90% of their drivers favor retaining independent contractor status coupled with targeted benefits such as minimum earnings floors, health care stipends, and occupational accident insurance.[29] As evidence of a workable middle path, Uber points to California’s Proposition 22, Washington’s HB 2076, and recent agreements in New York and Massachusetts, all of which preserve contractor status while layering in wage guarantees, paid leave, and safety nets.[30] Uber also argues that app-based work served as a vital “financial safety net” during the pandemic and continues to help workers manage inflation, noting that, as a result of these platforms,7 million Americans contributed an estimated $212 billion to the national economy.[31]
At the federal level, the Protecting the Right To Organize Act seeks to nationalize the ABC test, converting California’s contested experiment into a uniform classification standard.[32] If enacted, the legislation would extend employee rights to millions previously excluded from statutory protections.[33] It would recalibrate the presumption of employment in favor of dependency, closing gaps left by common law standards.[34] Yet critics argue that universal application may erase functional flexibility for workers who operate intermittently or across platforms.[35] While this concern reflects the real heterogeneity within gig labor, it also risks reasserting the very narratives platform companies have deployed to avoid regulation.[36] The legal question is not whether gig workers have flexible schedules, but whether their economic and operational conditions mirror employment. The PRO Act does not eliminate flexibility; it codifies rights where none yet exists.
The failure to enact a consistent standard has yielded a jurisdictional lottery. In some states, gig workers are presumed employees; in others, they are deemed contractors regardless of function or control.[37] These inconsistencies foster legal evasion, enabling companies to venue-shop by scaling operations in states with lenient classification rules.[38] The outcome is not regulatory experimentation but structural inequality, where the rights of workers are dictated not by the nature of their labor but by geography.[39] Legal uncertainty permeates every level of the gig economy, from access to benefits to eligibility for collective bargaining, leaving workers in a persistent state of vulnerability.[40]
Comparative analysis reveals the cost of fragmentation. In Australia, scholars and courts have advanced a model that applies existing labor protections to gig workers without creating new legal categories.[41] Stewart and Stanford advocate an eclectic approach in which classification depends not on formal labels but on the substantive dynamics of control, dependency, and risk allocation.[42] Rather than construct an artificial third category of “independent worker,” Australian courts evaluate whether platforms exercise functional authority over labor conditions, regardless of contractual disclaimers.[43] This model allows adjudication to track economic substance, providing flexibility without sacrificing protection. It also invites the judiciary to interpret evolving labor relationships with discretion and specificity – something American law has resisted.
The structural ambiguity of platform labor is further magnified by its triangular form.[44] The relationship between platform, worker, and end-user confounds traditional tests by distributing responsibility across legally distinct actors.[45] Platforms present themselves as passive intermediaries, deflecting liability for wages, benefits, and safety, while simultaneously exerting centralized control through algorithmic management, performance thresholds, and rate manipulation.[46]
State-level efforts such as California’s Assembly bill have tried to address this situation, but their scope remains jurisdictionally constrained and politically fragile. Without a federal framework, the law continues to reward opacity, allowing platforms to leverage classification ambiguity for competitive advantage. The result is not regulatory innovation, but a vacuum in which the most precarious workers shoulder the risks of legal incoherence. Only a unified national standard can restore coherence to the legal status of gig labor, providing predictable rights across jurisdictions and countering the platform economy’s diffusion of responsibility.
Comparative Blueprints: EU and Canadian Pathways to Gig Worker Protections
The challenges of regulating platform labor are global, yet the solutions emerging abroad expose the parochialism of the American approach. Across legal systems, courts and legislatures have begun to confront the fiction of platform neutrality, crafting doctrines and statutes that recognize the structural dependencies of gig work without collapsing the diversity of working arrangements into binary categories. These frameworks offer pragmatic blueprints – not for replicating foreign law wholesale, but for reimagining the architecture of labor protections in the United States.
The European Union has adopted a rights-based approach that begins with economic dependence rather than contractual formalism.[47] Nowhere is this shift more pronounced than in Spain’s 2021 Rider Law, which reclassified app-based delivery workers as employees entitled to minimum wage, overtime pay, social security, and collective bargaining rights.[48] The law targets not only the material vulnerability of gig workers but also the informational asymmetries that define algorithmic management.[49] Companies must now disclose the logic of their automated systems to labor representatives, making algorithmic control a matter of public accountability.[50] This intervention signals a recognition that formal independence collapses under conditions of unilateral control. Gig work, in this view, is not a new category of labor; it is a variant of old patterns of dependency, repackaged through digital mediation.
Canada offers a different model: a hybrid legal classification for “dependent contractors,” situated between employees and independent contractors.[51] This framework accepts the premise that not all gig workers fit neatly into traditional labor categories but rejects the notion that ambiguity should default to exclusion. Dependent contractors are entitled to unionization, just-cause termination protections, and in some provinces, minimum employment standards.[52] The Canadian model avoids constructing a third category merely for definitional elegance; it exists to capture the substance of power dynamics in relationships marked by economic dependency and asymmetrical bargaining. It shows that legal flexibility can coexist with substantive rights when the goal is not precision for its own sake but protection grounded in economic reality.
In Australia, experimental approaches have emerged through direct negotiations between platforms and worker organizations.[53] In one such case, Unions NSW reached an agreement with Airtasker establishing minimum pay and safety standards, bypassing the constraints of formal classification disputes.[54] While not binding across the platform economy, the agreement offers proof of concept: where legal doctrine stalls, negotiated norms can step in.[55] Yet the limits of voluntarism are also clear. Without statutory backing, such agreements remain provisional, dependent on goodwill rather than enforceable rights.[56] The Australian experience makes one point unavoidable: piecemeal fixes cannot substitute for legislative transformation.
The structural logic of platform labor is not new. Stanford has traced its lineage to the “putting-out system” of proto-industrial capitalism, where intermediaries-controlled production while avoiding the responsibilities of direct employment.[57] The gig economy, with its algorithmic governance and reputational metrics, has revived this system on a digital scale. Platforms extract value through coordination and control while externalizing risk, cost, and accountability. The economic structure replicates traditional employment; only the legal responsibilities have disappeared.
The global trend is moving toward decoupling rights from formal employment status.[58] New York City’s ordinance guaranteeing per-trip minimum payments for rideshare drivers reflects this shift.[59] It accepts the premise that worker protection need not depend on categorical labels but can be grounded in the performance of labor itself. The ordinance does not declare drivers employees. It declares them entitled to fair compensation. In doing so, it offers a model of regulatory pragmatism that avoids the trap of definitional paralysis.
The lessons from abroad do not prescribe a singular path, but they reveal a shared legal imagination – one in which labor protections follow dependency, not nomenclature. As the solutions in other countries suggest, the United States might need to abandon its fixation on binary classification and adopt a framework that centers the material conditions of work. Comparative models offer the tools. What remains is the political will to use them.
Lives in Legal Limbo: The Real-World Toll of Worker Misclassification
Worker misclassification reflects more than a technical error; it reflects a systemic distortion with tangible costs. The designation of gig workers as independent contractors severs their access to labor protections, transforms rights into privileges, and converts vulnerability into a business model. Litigation alone has not resolved this problem. In O’Connor v. Uber, drivers sought recognition as employees to access statutory benefits including minimum wage, overtime pay, and reimbursement of expenses.[60] The case drew national attention as a referendum on the legal status of platform workers. Yet the result – a partial settlement without reclassification – offered symbolic validation but little structural change.[61] The court declined to reach a definitive ruling on employee status, and Uber retained its classification practices.[62] The decision became a mirror, reflecting both the limits of case-by-case litigation and the power of contractual design to outpace regulatory correction.
This legal uncertainty extends across platforms. Food delivery services like DoorDash deploy similar contractual structures, relegating workers to a status that denies them access to health insurance, unemployment benefits, and collective bargaining.[63] Compensation remains volatile, subject to shifting algorithms, commission tiers, and opaque adjustments.[64] Drivers contend that they still lack transparency about pay, input over work conditions, and recourse for wage disputes.[65]
The costs of misclassification are not confined to wages or benefits. They bleed into health, family, and community. Wayne Lewchuk’s Employment Precarity Index provides a quantitative framework for assessing the consequences.[66] His research draws a stark contrast between “secure” and “precarious” employment, showing that workers in the latter category experience higher rates of chronic illness, stress, and anxiety.[67] These effects are not incidental. He believes they are produced by job structures that offer little control, irregular hours, and no safety net. Precarity delays home ownership, undermines retirement planning, and limits participation in civic life.[68]
Gig platforms shift risk downward while retaining control upward. Uber’s driver agreements exemplify this logic.[69] Through unilateral contract terms, the company avoids many employer obligations while dictating pricing, performance thresholds, and deactivation policies.[70]
The coronavirus pandemic made this asymmetry visible. Gig workers delivered medicine, groceries, and essential goods while lacking the protections typically granted to essential workers.[71] Only after strikes and protests did some platforms distribute masks, increase pay, or implement safety protocols.[72] Such concessions, often temporary, revealed a deeper truth: classification determines not only rights but recognition. International courts have begun to respond. In Italy and France, rulings have affirmed that platforms exercising control over workers must extend employment protections.[73] These decisions challenge the idea that digital coordination absolves legal responsibility. They reaffirm a foundational principle: genuine flexibility cannot exist where protection is withheld and control remains absolute.
The Need for a Multi-Tiered Federal Standard
The Fair Tiered Classification Framework is a three-tiered federal model designed to replace the binary employee–contractor distinction with a structure that map rights and protections to actual conditions of work. The absence of a national classification framework has allowed platform labor to operate in a jurisdictional vacuum.[74] Across the United States, gig workers navigate a legal maze of conflicting statutes and inconsistent protections, where the rights afforded to a delivery driver in California may disappear at the border of Nevada.[75] State-level reforms such as California Assembly Bill 5 and Proposition 22 have introduced volatility rather than clarity, creating a landscape where legal status depends less on the nature of work than on political geography.[76] This disparity destabilizes both workers and markets. It distorts competition by rewarding companies that cluster operations in permissive states while penalizing those that operate where worker rights are recognized.[77]
A federal standard would not only harmonize protections but would also realign classification doctrine with the realities of modern labor. A single-tier solution fails to capture the complexity of platform work.
The first category would preserve the status of traditional employees. These are workers subject to extensive oversight, prescribed schedules, and direct managerial control.[78] They are embedded in firm structures and lack the leverage to negotiate work terms.[79] Existing protections – minimum wage, overtime pay, anti-retaliation provisions, and collective bargaining rights – are not benefits but legal guarantees rooted in dependency.[80] The standard employment relationship remains vital for sectors in which the employer-employee dynamic still reflects its historical model.[81]
The second category would apply to dependent contractors. These workers operate without formal supervision but remain economically tethered to the platform. They often depend on a single entity for the majority of their income, lack the ability to set prices, and are subject to algorithmic evaluation and task allocation.[82] Canada’s dependent contractor doctrine provides an instructive example. Workers in this category receive legal recognition of their economic reliance while retaining operational flexibility. They are eligible for unionization, just-cause protection, and access to benefits previously limited to employees.[83] Studies of platforms such as Airtasker confirm the need for this classification. Although workers appear autonomous, platforms control visibility, set pay ceilings, and discipline performance, rendering the contractor label a legal fiction.[84]
A third category would recognize independent contractors in the classical sense. These workers set their own rates, negotiate their terms, and perform labor outside the economic ecosystem of a single firm. Their income is diversified, their tools are self-funded, and their operations reflect genuine entrepreneurial freedom. Their rights would center on transactional clarity and anti-discrimination protections, rather than statutory benefits, in line with their independence.[85] This structure would protect legitimate contractors without diluting protections for those misclassified.
Such a model could herald a broader transformation in labor markets. As Jim Stanford has argued, the standard employment relationship is no longer the dominant form of work, not because of technological determinism, but because of policy choices that permitted its erosion.[86] A federal classification statute must respond to this erosion with a framework capable of accommodating labor forms that do not fit mid-century molds.
The pandemic exposed the cost of deferring reform. Gig workers delivered essential services without access to paid sick leave, hazard pay, or unemployment insurance.[87] Many received protective equipment or pandemic bonuses only after sustained protest.[88] This crisis made visible the gap between labor’s social function and its legal status. One example is tip baiting – where customers lure workers with large tips, then reduce them after service—revealing how platforms’ payment systems often magnify worker vulnerability.[89]
Misclassification is not a technical oversight. It is a regulatory design flaw that excludes millions from the core protections of labor law. A multi-tiered federal standard offers a structural correction, one grounded in the realities of today’s labor market rather than outdated assumptions. Critics argue that such reform would eliminate the flexibility that makes gig work attractive. But this objection misunderstands the model. The dependent contractor tier preserves genuine scheduling autonomy while restoring baseline protections. The FTCF targets coercive dependency, not freedom. Independent contractors under the third tier retain full entrepreneurial flexibility – what the framework eliminates is the corporate incentive to disguise control as independence.
Policy Recommendations and Implementation
The legal invisibility of gig workers has produced a landscape where flexibility is decoupled from security, and innovation has outpaced regulation. Correcting this imbalance requires more than doctrinal revision; it demands a policy architecture capable of recognizing the unique position of workers who are economically dependent but legally unprotected. Reform must confront the contradictions of gig work not as an aberration, but as an increasingly popular form of labor that traditional employment law no longer governs.
A system of portable benefits would provide a foundational correction. Health insurance, retirement savings, and paid leave should attach to the worker, not to the employer, enabling mobility across platforms without forfeiting stability. These benefits would address one of the most acute failures in the current regime: the inability of gig workers to accumulate essential protections while navigating intermittent, task-based labor. Wayne Lewchuk’s research on precarious work documents the downstream effects of instability, ranging from chronic stress to deferred family formation, exposing the personal cost of legal exclusion.[90] His data suggest that structural reform is not only an economic imperative but a public health intervention.[91]
Legal enforcement cannot rely on incentives or voluntary compliance. It must be grounded in systematic oversight and substantive penalties. Agencies such as the Department of Labor and the Internal Revenue Service would need to audit platform practices regularly and impose sanctions sufficient to alter corporate incentives. Andrew Stewart and Jim Stanford argue that ambiguity in classification doctrine has enabled noncompliance to flourish.[92] Their recommendation is not abstract: redefine employment standards and deploy penalties strong enough to deter evasion. Without this shift, regulatory asymmetry will persist, allowing platforms to offload risk while extracting profit.
Collective bargaining remains a critical tool for addressing algorithmic power. New York’s Freelance Isn’t Free Act offers a procedural model for protecting contract workers from wage theft and unjust termination. But in the gig context, bargaining must go beyond dispute resolution. It must challenge the unilateralism of algorithmic oversight, customer rating systems, and pay volatility. Stanford notes that gig workers face performance evaluation without recourse, leaving them vulnerable to opaque discipline and inconsistent pay.[93] Legal recognition of collective action rights, adapted to the platform economy, would restore balance where individualized contracts have failed.
A flexible classification model would further address the spectrum of control within gig labor. Scholars such as Andrew Stewart and Jim Stanford have argued for legal categories that provide employee-style protections without requiring full employee status.[94] Their work supports the concept of “dependent contracting” as a policy bridge – one that reflects gig workers’ operational independence while acknowledging their structural dependence. Rather than retrofitting outdated categories, this approach builds new ones grounded in economic substance and the realities of algorithmic work.
The pandemic exposed how gig platforms can weaponize ambiguity to evade basic labor obligations. Despite public acclaim, companies were accused of resisting hazard pay, delaying distribution of personal protective equipment, and deflecting responsibility by invoking worker autonomy.[95] Practices like tip baiting expose the asymmetry in these interactions.[96] Federal protections need to address deceptive pay practices and guarantee minimum per-task compensation to stabilize earnings in a sector where volatility is often engineered.
Informal support systems offer an additional layer of resilience. Gustavo Pilatti and colleagues identify social networks as forums where gig workers exchange information, report abusive practices, and collectively develop coping strategies.[97] These decentralized forms of solidarity do not replace legal protections, but they offer a model of collective agency in a fragmented labor market. Regulatory policy must recognize and safeguard these networks as essential to worker autonomy.
Finally, the normative vision for reform must begin with a conceptual shift. Alexander Kondo and Abraham Singer call this “labor without employment” – a recognition that the presence of managerial control need not be formal to be real.[98] Their proposal is not to reclassify all gig workers as employees, but to extend legal protections on the basis of power and dependence. It is a framework that rejects formalism and recenters labor law on its original purpose: to mediate asymmetrical relationships and protect human dignity in economic exchange.
Conclusion
The classification doctrines that govern employment – rooted in control tests, economic dependency analysis, and outdated tax standards – were not designed for a labor system where management is algorithmic and oversight is ambient. Fragmented state-level responses have generated pockets of progress, but these remain jurisdictionally bounded and politically vulnerable.[99] The absence of a national standard has created regulatory arbitrage, where protections depend not on the work performed, but on the zip code in which it is performed.[100]
A multi-tiered federal framework offers one potential credible alternative. A classification model that recognizes traditional employees, dependent contractors, and genuinely independent contractors could restore coherence to labor law while adapting it to contemporary realities. This structure, informed by comparative models such as Canada’s dependent contractor status and the European Union’s reclassification mandates, acknowledges that dependency exists across a spectrum.[101] It allows rights to follow the substance of the relationship rather than the semantics of a contract.[102]
Other solutions can help ensure workers have protections they need. Legal protections could travel with the worker, not remain locked inside an employment label. Portable benefits would allow gig workers to move between platforms without forfeiting health care, retirement security, or paid time off.[103] In order for a new system to work, misclassification penalties would need to carry real economic consequences, making noncompliance more costly than reform.[104] Collective bargaining frameworks would have to be adapted to accommodate decentralized workforces governed not by supervisors, but by law.[105]
The notion that economic insecurity is an unavoidable feature of modern work is a failure of legal imagination, not a fact of technology. By rejecting this determinism, the United States can reclaim the capacity of law to govern the terms of labor fairly, even as the form of labor evolves.[106]
Moon Hwan Lee is an LL M. candidate at Northwestern Pritzker School of Law. This article appears in a forthcoming issue of the Labor and Employment Law Journal, the publication of the Labor and Employment Law Section. This article was awarded first prize in the section’s Dr. Emanuel Stein and Kenneth Stein Memorial Law Student Writing Competition. For more information, please visit nysba.org/labor.
Endnotes:
[1] Miriam A. Cherry & Ana Santos Rutschman, Gig Workers as Essential Workers: How To Correct the Gig Economy Beyond the COVID-19 Pandemic, 35 ABA J. Lab. & Emp. L. 1, 12–13 (2020).
[2] Id. at 13.
[3] See United States v. Silk, 331 U.S. 704, 716 (1947).
[4] Uber BV v. Aslam, [2021] UKSC 5 ¶¶ 93–98, 101–02 (UKSC).
[5] Id.
[6] Andrew Stewart & Jim Stanford, Regulating Work in the Gig Economy: What Are the Options?, 28 Econ. & Lab. Rel. Rev. 382, 387 (2017).
[7] Id. at 387–88.
[8] Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323–24 (1992).
[9] Stewart & Stanford, supra note 6, at 387–88 (2017) (describing how digital platforms structure gig work through algorithmic controls, rating systems, and opaque terms that shift managerial functions into code); see also id. at 384–85 (discussing how platform-mediated work blurs employment relationships and challenges traditional regulatory frameworks).
[10] Uber BV v. Aslam, [2021] UKSC 5 ¶¶ 93–98, 101–02 (UKSC) (holding that Uber exercised significant control over drivers through algorithmic management, fare-setting, performance metrics, and platform-imposed penalties, despite contractual language suggesting driver independence).
[11] See United States v. Silk, 331 U.S. 704, 716 (1947) (recognizing that employee status under the FLSA depends on the economic reality of the working relationship rather than technical concepts of control); Rutherford Food Corp. v. McComb, 331 U.S. 722, 729–30 (1947) (applying economic realities to workers integral to the business and economically dependent); Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 301 (1985) (holding that religious workers receiving in-kind benefits were employees under the FLSA despite their protestations); see also Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201–219.
[12] See Wayne Lewchuk, Precarious Jobs: Where Are They, and How Do They Affect Well-Being?, 28 Econ. & Lab. Rel. Rev. 402, 404–06 (2017); Jim Stanford, The Resurgence of Gig Work: Historical and Theoretical Perspectives, 28 Econ. & Lab. Rel. Rev. 1, 2–4, 6–7 (2017).
[13] Cf. Uber BV v. Aslam, [2021] UKSC 5 ¶¶ 93–98, 101–02 (UKSC) (rejecting the notion that Uber drivers are independent contractors, citing the platform’s control over pricing, acceptance, performance monitoring, and penalties).
[14] See Rev. Rul. 87-41, 1987-1 C.B. 296 (laying out the IRS’s 20-factor common law test for distinguishing employees from independent contractors).
[15] See Stewart & Stanford, supra note 6, at 384–85 (explaining how traditional employment tests fail to account for triangular digital labor structures and algorithmic control).
[16] See Jim Stanford, The Resurgence of Gig Work: Historical and Theoretical Perspectives, 28 Econ. & Lab. Rel. Rev. 1, 3–4 (2017) (noting that gig workers supply their own tools and operate under digital management systems); Stewart & Stanford, supra note 6, at 386–87 (discussing platform-driven dependency and control).
[17] See Kate Minter, Negotiating Labour Standards in the Gig Economy: Airtasker and Unions NSW, 28 Econ. & Lab. Rel. Rev. 438, 443–46 (2017) (detailing Airtasker’s use of ranking systems, bidding controls, and discretionary worker removals to regulate access to work).
[18] David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Harv. Univ. Press, 2014).
[19] See David Weil, Understanding the Present and Future of Work in the Fissured Workplace Context, 5 RSF 147, 148–49 (2019) (explaining how lead firms restructure employment by outsourcing while maintaining strict control through standards and enforcement mechanisms).
[20] See id. at 149–50 (describing how firms exert control over outsourced labor through algorithms, subcontracting layers, and monitoring systems while avoiding direct employment liability).
[21] Id. at 150–51 (arguing that the fissured workplace enables firms to benefit from centralized operational control without corresponding employment responsibilities or legal accountability).
[22] See Stewart & Stanford, supra note 6, at 384–85 (arguing that traditional employment tests were designed for an earlier industrial model and are inadequate for platform-mediated labor relationships).
[23] Id. at 384 (describing how legacy employment tests assume clear lines of managerial control within vertically integrated firms).
[24] Id. at 385–86 (explaining how gig platforms use digital infrastructure to obscure control while retaining functional authority over workers).
[25] See Assembly Bill No. 5, ch. 296, 2019 Cal. Stat. 91 (codifying employee status standards in response to Dynamex and redefining the scope of employment under California law).
[26] Id. § 2750.3(a)(1)(A)–(C) (establishing the ABC test criteria for classifying workers as independent contractors).
[27] See Cal. Bus. & Prof. Code §§ 7448–7467 (West 2021) (enacting Proposition 22, which exempts app-based drivers from AB5’s employee classification framework).
[28] See Cherry & Rutschman, supra note 1, at 9–11 (criticizing Proposition 22’s industry-backed design and its constitutional entrenchment of employment exceptions).
[29] CR Wooters, Our Statement on the U.S. Department of Labor’s Worker Classification Rule, Uber Newsroom (Jan. 9, 2024); Lyft News, Department of Labor Proposed Rule – Our Take (Oct. 10, 2022).
[30] Id.
[31] Uber Newsroom, Improving Independent Work: 5 Years On (Feb. 4, 2025).
[32] Protecting the Right to Organize Act of 2021, H.R. 842, 117th Cong. § 101(b) (proposing to incorporate the ABC Test into the National Labor Relations Act).
[33] Stewart & Stanford, supra note 6, at 390–91 (discussing legislative options including expansion of employee definitions to protect gig workers).
[34] See H.R. 842, § 101(b); Stewart & Stanford, supra note 6, at 390 (describing reforms that shift default assumptions toward worker dependency and statutory protection).
[35] See Stewart & Stanford, supra note 6, at 391 (noting the debate over flexibility and how platform firms use it rhetorically to resist classification reforms).
[36] Id. at 392 (explaining how flexibility discourse is strategically used by platforms to justify exclusion from employment laws).
[37] See Lewchuk, supra note 12, at 407–08 (noting that the same type of work may be treated differently across regions, contributing to inconsistent labor protections and insecurity).
[38] See id. at 407–09 (discussing how firms structure precarious work through decentralized and varied employment arrangements to reduce legal obligations).
[39] See id. at 409–10 (arguing that geographically inconsistent labor classifications perpetuate insecurity and structural inequality among workers performing similar jobs).
[40] See id. at 412–14 (exploring how precarious work limits access to employment benefits, bargaining rights, and workplace stability, contributing to social and economic vulnerability).
[41] See Stewart & Stanford, supra note 6, at 388–89 (noting Australian regulatory preference for applying existing employment laws to platform work without creating new categories).
[42] See id. at 390–92 (proposing a flexible, multi-factor framework for assessing gig work status based on economic substance, including control and dependency).
[43] See id. at 388–90 (describing Australian judicial willingness to look beyond contractual terms and examine whether platforms exert real-world control over work conditions).
[44] See Stanford, supra note 16, at 4. NB – 13 doesn’t fit – should it be 16??
[45] Id. at 4–5.
[46] See id. at 6–7.
[47] See Directive (EU) 2024/2831 of the European Parliament and of the Council of 13 June 2024 on improving working conditions in platform work, 2024 O.J. (L 252) 1.
[48] See Real Decreto-ley 9/2021, de 11 de mayo, BOE núm. 113, 12 mayo 2021, at 56734 (Spain), (establishing a rebuttable presumption of employee status for platform-based delivery workers in Disposición Adicional Vigesimotercera).
[49] See id. at 56734–35.
[50] See id. at 56735 (amending Art. 64.4(d) to require disclosure of algorithmic parameters, rules, and logic to employee representatives when such systems affect access to employment or working conditions).
[51] See Stewart & Stanford, supra note 6, at 391 (discussing Canada’s classification of “dependent contractors” as a hybrid model that grants select employee rights to economically dependent non-employees).
[52] See Labour Relations Act, 1995, S.O. 1995, c. 1, sched. A, § 1(1) (Can.) (including dependent contractors in the definition of “employee” for the purposes of unionization); see also Stewart & Stanford, supra note 6, at 391.
[53] See Minter, supra note 17, at 440 (2017) (describing Australian unions’ innovative strategies to engage digital platforms in absence of clear regulation).
[54] See id. at 448–50 (analyzing the 2017 agreement between Unions NSW and Airtasker covering pay, safety, insurance, and dispute resolution without determining employment status).
[55] See id. at 451 (noting that while the agreement is non-binding across the industry, it shows that voluntary standards can fill short-term gaps).
[56] See id. at 451–52 (arguing that voluntary measures are vulnerable to reversal and depend on employer cooperation without legislative force).
[57] Stewart & Stanford, supra note 6, at 384–86 (2017) (drawing analogies between the gig economy and the historical putting-out system, in which production was decentralized while control and ownership remained centralized).
[58] See Alexander Kondo & Abraham Singer, Labor Without Employment: Toward a New Legal Framework for the Gig Economy, 34 ABA J. Lab. & Emp. L. 331, 335–36 (2020) (proposing a rights-based framework for gig labor divorced from traditional employment status).
[59] See id. at 336 (discussing New York City’s ordinance guaranteeing per-trip minimum payments for rideshare drivers as a concrete example of decoupling labor protections from formal employment classification).
[60] O’Connor v. Uber Techs., Inc., 82 F. Supp. 3d 1133, 1135 (N.D. Cal. 2015) (“Plaintiffs claim that they are employees of Uber, as opposed to its independent contractors, and thus are eligible for various statutory protections for employees codified in the California Labor Code.”).
[61] See id. at 1136–37 (noting that Uber exercised substantial control over drivers but nonetheless maintained contractual language asserting independent contractor status); see also Stanford, supra note 13, 6 (“Uber sets the fare and route, collects payment from the customer…supervises and where necessary disciplines drivers and then pays drivers a portion of revenue.”).
[62] O’Connor, 82 F. Supp. 3d at 1139 (“For the reasons explained in this Order . . . whether Uber’s drivers are employees or independent contractors is an issue to be decided by a jury, not this Court on summary judgment.”).
[63] Minter, supra note 17, at 439–40 (describing how platform workers are classified as independent contractors and thus excluded from statutory labor protections, including health, unemployment, and collective rights).
[64] Stewart & Stanford, supra note 6, at 386 (2017) (explaining pay instability and algorithmic control in platform-mediated work).
[65] Minter, supra note 17, at 444–45 (noting the lack of clarity in pay structures and weak dispute mechanisms for platform workers, leaving them dependent on opaque rating and arbitration systems).
[66] Lewchuk, supra note 12, at 404–05 (2017) (introducing the Employment Precarity Index as a tool to measure insecure employment and its effects on well-being).
[67] Id. at 413–14 (showing significantly worse self-reported general and mental health among workers in precarious employment).
[68] Id. at 414–15 (discussing effects such as delayed family formation, diminished civic participation, and weakened social cohesion due to employment insecurity).
[69] Stewart & Stanford, supra note 6, at 389–90 (2017) (noting Uber’s use of standard form contracts and its control over pricing and service conditions).
[70] Id. at 390–91 (describing Uber’s unilateral imposition of contract terms and managerial authority over driver performance, including deactivation policies).
[71] Cherry & Rutschman, supra note 1, at 5–6 (2020) (noting that gig workers performed essential pandemic functions while being excluded from legal protections like sick leave and health care).
[72] Id. at 6–7 (describing protests in multiple cities and subsequent limited responses by platforms, such as PPE distribution and modest hazard pay).
[73] See Cass., sez. lav., 24 gennaio 2020, n. 1663 (It.) (recognizing Foodora riders as “hetero-organized” workers entitled to employment protections); Cour de cassation [Cass.] [supreme court for judicial matters] soc., 4 mars 2020, No. 19-13.316 (Fr.) (finding a functional employment relationship between Uber and its drivers under French labor law).
[74] Stewart & Stanford, supra note 6, at 384.
[75] Id. at 392–93 (discussing geographic variation in regulation and the complexity of sub-national legal fragmentation).
[76] Id. at 393–94 (analyzing the implications of diverging legal reforms like AB5 and Prop 22 and their impact on worker classification).
[77] Id. at 390–91 (describing how differential labor protections across jurisdictions incentivize geographic arbitrage by gig firms).
[78] Stewart & Stanford, supra note 6, at 388–89 (describing traditional employees as those working under direct oversight, with schedules and tasks dictated by employers).
[79] Id. at 389 (noting that such employees typically work full-time for a single employer, on the employer’s premises, using employer-provided equipment).
[80] Id. at 389–90 (explaining how labor protections like minimum wage and collective bargaining were institutionalized under the Standard Employment Relationship and rooted in workers’ dependency).
[81] Id. at 390–91 (stating that the SER remains relevant for many sectors despite its decline, due to its foundational role in structuring labor protections and expectations).
[82] Minter, supra note 17, at 440–41 (discussing the economic dependence of platform workers on single companies and their limited price-setting capacity).
[83] Id. at 444–45 (describing legal recognition for dependent contractors and protections afforded under union negotiations in the Australian context, comparable to Canada’s legal approach).
[84] Id. at 445–46 (analyzing how Airtasker retains control over job visibility, pay, and discipline, despite the appearance of worker autonomy, thereby exposing the limits of the independent contractor label).
[85] Stewart & Stanford, supra note 6, at 11–12 (discussing the nature of truly independent contractors as workers with diversified income sources and genuine autonomy).
[86] Stewart & Stanford, supra note 6, at 388–89 (arguing that the decline of the standard employment relationship results from socio-political and regulatory choices, not technological inevitability).
[87] Cherry & Rutschman, supra note 1, at 5–6 (noting that gig workers performed essential services without formal labor protections such as sick leave or unemployment insurance).
[88] Id. at 6 (describing worker-led protests during the pandemic and the delayed, often minimalistic responses by gig platforms in providing PPE and temporary hazard pay).
[89] Id. at 7–8 (explaining “tip baiting” practices and the lack of redress mechanisms for gig workers in cases of customer abuse or manipulation).
[90] Lewchuk, supra note 12, at 412–13 (developing the Employment Precarity Index and describing how unstable employment correlates with stress and household strain).
[91] Id. at 414–15 (reporting empirical findings on health deterioration, anxiety, and delayed family formation among precariously employed workers).
[92] Stewart & Stanford, supra note 6, at 397–99.
[93] Stanford, supra note 16, at 10–11.
[94] Stewart & Stanford, supra note 6, at 393–95.
[95] Cherry & Rutschman, supra note 1, at 5–6 (noting gig platforms’ resistance to safety measures and reliance on worker autonomy to deflect responsibility).
[96] Id. at 7 (discussing exploitative practices such as tip baiting and lack of pay transparency in gig platforms).
[97] Gustavo R. Pilatti, Flavio L. Pinheiro & Alessandra A. Montini, Systematic Literature Review on Gig Economy: Power Dynamics, Worker Autonomy, and the Role of Social Networks, 14 Admin. Sci. 267, 2–4 (2024) (describing how gig workers use informal networks to share information, build solidarity, and resist algorithmic control).
[98] Kondo & Abraham Singer, supra note 54, at 335–36 (arguing for decoupling labor protections from formal employment categories and advocating for a moral and legal framework based on power and dependence rather than outdated employment formalism).
[99] Id. at 387–88 (arguing that continued reliance on traditional employment categories allows corporations to evade liability by exploiting formal legal distinctions).
[100] Id. at 396 (observing that inconsistent subnational reforms create “regulatory arbitrage,” where companies exploit differences across jurisdictions).
[101] See Stewart & Stanford, supra note 6, at 393–95; Minter, supra note 14, at 441–44; see also Real Decreto-ley 9/2021, BOE núm. 113, 12 mayo 2021, at 56734 (Spain).
[102] See Minter, supra note 17, at 442–43; Real Decreto-ley 9/2021, BOE núm. 113, at 56734.
[103] Lewchuk, supra note 12, at 10–12 (describing the negative effects of employment-linked benefits in precarious work and advocating portable protections).
[104] Stewart & Stanford, supra note 6, at 398–99 (arguing that financial deterrents are necessary to counter employer incentives to misclassify).
[105] Stanford, supra note 16, at 14–16 (describing the need for collective bargaining in gig settings to challenge algorithmic control).
[106] Id.
