The emergence of gig work is putting pressure on traditional notions of who is an employee and who is the employer. Workers classified as independent contractors rather than employees can lose state and federal protections for wages, overtime, whistleblowing, discriminatory firing, and more. They also lose federal labor law protections for group protest activity, union organizing, and collective bargaining. It is generally assumed that workers not classified as employees under federal labor law also face liability under the antitrust laws if they form unions, go on strike, or try to bargain collectively with those who hire them.
In a recent article, we challenge the assumption that only workers covered as employees by federal labor law are antitrust-exempt: employer classification of workers as “independent contractors,” whether well-founded or not, is irrelevant to the antitrust inquiry. As long as workers provide only their personal services without significant, non-fungible capital investment, they remain laborers for purposes of the exemption from the antitrust laws that permits collective action by workers.
In the late nineteenth and early twentieth century employers used various legal tools, including federal antitrust law, to blunt the momentum of labor organizing. Notwithstanding that the 1890 Sherman Act was passed to target the monopolistic excesses of large business trusts, courts relied on the vague language of the Act’s prohibition of agreements “in restraint...
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