“We Want All Workers to Have the Right to Bargain Collectively”: How the ABCs Can Equalize the Gig Economy

Abstract

The term employee, though colloquially understood as a simple concept, is difficult to define. The advancement of technology enabling the development of new forms of work only further complicates defining this term. In particular, the recent inception and expansion of the gig economy increases the complexity of understanding what it means to be an employee. The combination of decentralization, the precariousness of the work, and the disproportionate shift of risk from the capital to the working class in the gig economy challenges the effectiveness of the current statutory framework built around the traditional concept of an employee. The National Labor Relations Act (NLRA), which is part of this statutory framework, has been unable to formulate a workable definition of an employee for the modern economy. This Note first provides an overview of the gig economy, the development of the independent contractor test under the NLRA, the application and implications of the currently applied test, and its proposed replacement, the ABC test. It then outlines the particular importance of NLRA coverage for gig workers and details problems with the use of the common-law right to control test. Finally, this Note argues that Congress should revise the NLRA by adopting the ABC test to determine who qualifies as a covered employee. This solution would better align the NLRA’s coverage with its stated purpose and give gig workers a voice to address grievances while allowing businesses to retain their unique labor structures.