Beyond Misclassification: Tackling the Independent Contractor Problem Without Redefining Employment

Abstract

This short essay on the labor law status of independent contractors was written for the NLRB/George Washington University Law School symposium "The National Labor Relations Act at 75: Its Legacy and Its Future." It argues that attempts to fine tune the employee/independent contractor distinction likely have reached a dead end. An important reason why is that employers have the power not merely to misclassify "true" employees but also to restructure work into nonemployment forms. Legal interventions must address this structuring process, not merely its results. For instance, one might treat the deliberate avoidance of labor law coverage through independent contracting as an unfair labor practice analogous to the "runaway shop."

Keywords: labor law, independent contractors