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Hofstra Labor & Employment Law Journal

Abstract

U.S. employment law has traditionally disfavored bright-line rules to distinguish between traditional “employees” and independent contractors, instead relying on more flexible criteria, to be applied on a case-by-case basis. This fluidity has enabled employers to structure these relationships – and the corresponding bundle of worker rights and benefits – in ways that serve their own material and normative interests. Indeed, recent employment law literature has noted a dramatic shift towards independent contracting and contingent worker schemes in the U.S., even when the actual workplace dynamics are more akin to an employer-employee relationship. These same trends are now visible on the European continent, challenging bodies of domestic law that traditionally had been protective of workers. In short, in both U.S. and Europe, forms of work labeled “self-employment” are on the rise.

Despite the growing prominence of self-employment in the U.S. and in the global economy, the law of self-employment is startlingly underdeveloped. This Article argues that in the U.S. and in some parts of Europe, self-employment law suffers from two core defects: (1) the failure to adequately distinguish between entrepreneurial or willing self-employment on the one hand, and coercive misclassification on the other; and (2) the overreliance on the employee/self-employed dichotomy, and the corresponding failure to imagine intermediary statuses with their own independent definitions. To remedy the deficient content of self-employment law, the Article recommends the adoption, especially in U.S. law and potentially in some bodies of European national law, of distinct subcategories of self-employment defined by specific conditions and attributes. Additionally, the Article recommends that U.S. law embrace a gradated standard of self-employment, as seen in Germany, Italy, Spain, and other European countries. These changes will ensure that the contracting schemes are tethered to specific legal standards, thereby ensuring certain basic protections for workers, including those who wish to transition into or out of self-employment. Moreover, these changes will signal the emergence of a critical counter-narrative in employment law, during a time of ambiguity and malleability in workplace relations.

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