Agency Law and the New Economy

39 Pages Posted: 3 Nov 2017 Last revised: 9 Nov 2017

Mark Loewenstein

University of Colorado Law School

Date Written: November 1, 2017

Abstract

This article considers the status of workers in the “new economy,” defined as the sharing economy (e.g., Uber, Lyft) and the on-demand economy. The latter refers to the extensive and growing use of staffing companies by established businesses in many different industries to provide all or a portion of their workforce. Workers in both the sharing economy and the on-demand economy are, generally speaking, at a disadvantage in comparison to traditional employees. Uber drivers, for example, are typically considered independent contractors, not employees, and therefore are not covered under federal and state laws that protect or provide benefits to employees. Similarly, employees of a staffing company may consider themselves employees of the client company and, therefore, entitled to negotiate collectively with the client company and receive the same benefits as the client company’s employees, yet the client company may take the position that it is not the employer or even a “joint employer” of such workers. Courts considering the claims of these workers typically look to the common-law definition of “employee,” as legislatures have typically neglected to define “employee” when drafting laws to protect employees. The resulting litigation has generated judicial decisions that are difficult to parse and often treat workers unfairly. This article takes a fresh approach to this problem, considering the shortcomings of the common-law definition and suggesting solutions.

Keywords: agency, employee, new economy, sharing economy, independent contractor, joint employer

JEL Classification: K20, K22, K30

Suggested Citation

Loewenstein, Mark J., Agency Law and the New Economy (November 1, 2017). 72 Bus. Law. 1009 (2017); U of Colorado Law Legal Studies Research Paper No. 17-18. Available at SSRN: https://ssrn.com/abstract=3063556

Mark J. Loewenstein (Contact Author)

University of Colorado Law School ( email )

Campus Box 401
Boulder, CO 80309
United States
303-492-7102 (Phone)
303-492-1200 (Fax)

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