Comments on Restatement of Employment Law (Third), Chapter 1

Abstract

This article addresses the Restatement of Employment Law, Chapter 1, on the “Existence of Employment Relationship.” The Labor Law Group previously responded to a draft version of this chapter. This article will not revisit all the considerations discussed in that article. Instead, it will focus on three issues within this topic that have become increasingly important in recent years that the Restatement does not adequately address. These three issues are: the joint employer relationship; the use of unpaid interns; and the rise of the “gig” economy, with its attendant questions about employee status in enterprises such as Uber or Lyft. The article addresses these issues in turn, and then closes by touching on a few of the most important issues left unresolved from the draft to the final version of the Restatement.

Keywords: Restatement of Employment Law, Classification, Misclassification, Employee, Independent Contractor, gig economy, joint employment, unpaid internships