Unbundling Freedom in the Sharing Economy
Posted: 15 Aug 2017
Date Written: August 13, 2017
Courts and scholars point to the sharing economy as the most recent proof that our labor & employment infrastructure is obsolete because it rests on a narrow and outmoded idea—namely, that only workers subjected to direct, personalized control by their employers need work-related protections and benefits. Since they diagnose the problem as being our system’s emphasis on control, these critics have long called for reducing or eliminating the primacy of the “control test” in classifying workers as either protected employees or unprotected independent contractors. Despite these persistent criticisms, however, the concept of control has been remarkably sticky in scholarly and judicial circles.
This Article argues that critics have misdiagnosed the reason why the control test is an unsatisfying method of classifying workers and dispensing work-related safeguards. Control-based analysis is faulty because it only captures one of the two conflicting ways in which workers, scholars, and decision-makers think about freedom at work. One of these ways, freedom as non-interference, is adequately captured by the control test. The other, freedom as non-domination, is not. The tension between these two conceptions of freedom, both deeply entrenched in American culture, explains why the concept of control has been both “faulty” and “sticky” when it comes to worker classification.
Drawing on a first-of-its-kind body of ethnographic fieldwork among workers and policymakers across several sharing economy industries, this Article begins by showing how workers themselves conceptualize freedom as both non-interference and non-domination. It then goes on to show that both these conceptualizations of freedom also exist in case law and statutory law pertaining to work. In doing so, the Article demonstrates that there is no great divide between work law and work practices and that, if anything, the problem is that classification doctrine reflects and reinforces an irresolvable tension in the way lay and legal actors think about freedom at work.
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