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http://ssrn.com/abstract=1961429
 
 

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Employee or Entrepreneur?


Jeffrey M. Hirsch


University of North Carolina School of Law

November 18, 2011

Washington & Lee Law Review, Vol. 68, pp. 353, 2011
UNC Legal Studies Research Paper No. 1961429

Abstract:     
This comment on Micah Jost’s Note, 'Independent Contractors, Employees, and Entrepreneurialism Under the National Labor Relations Act: A Worker-by-Worker Approach,' was part of the Washington and Lee Law Alumni 
Association Student Notes Colloquium. In his Note, Jost addresses an increasingly problematic aspect of NLRA law: The ability and willingness of employers to exclude workers from coverage under the statute by classifying them as independent contractors. This problem has existed since the early days of the NLRA, but is worsening as a result of changes in the modern workplace. Adding fuel to this fire, and creating the impetus for Jost’s Note, is the D.C. Circuit’s new test that makes mere entrepreneurial opportunity the cornerstone of the employee/independent contractor analysis. This test defies both well-established precedent and the policies of the NLRA.

Moreover, as Jost demonstrates, the common-law analysis - although superior to the D.C. Circuit’s formulation - is in dire need of reform itself. Ideally, this reform would be substantial, either through legislation or a new willingness by the Supreme Court to abandon a strict compliance with the common-law analysis. The result would hopefully produce a more flexible, policy- oriented definition of employee that - especially in combination with increased audits and penalties for misclassification, as well as more attempts to provide workers with the information and tools needed to challenge misclassifications - would better capture the type of employees that the NLRA was intended to cover. Only through such a change will the NLRA maintain relevance for a growing number of workers who look like employees but are now treated as independent contractors by their employers.

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Date posted: November 18, 2011  

Suggested Citation

Hirsch, Jeffrey M., Employee or Entrepreneur? (November 18, 2011). Washington & Lee Law Review, Vol. 68, pp. 353, 2011; UNC Legal Studies Research Paper No. 1961429. Available at SSRN: http://ssrn.com/abstract=1961429

Contact Information

Jeffrey M. Hirsch (Contact Author)
University of North Carolina School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7675 (Phone)

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