Labor Organizing by Independent Contractors?

Worker classification is a critical and recurring question in employment law. Generally workers must be statutory “employees” to obtain the benefits of worker protection legislation. In an era of increased casualisation of employment, some advocates have sought to amend statutes or revise the relevant common law test in order to extend rights to these workers, moves that often face political roadblocks.

In their recently published article, Labor’s Antitrust Immunity for Independent-Contractor Workers, 59 Wake Forest L.Rev. 1060 (2024), NYU law professor Sam Estreicher and attorney Jack Samuel contend that, whatever the prospects for legal change, independent contractors who supply solely their own labor can organize and demand bargaining without fearing antitrust suits. These workers—regardless of how they are classified  by employers and other users of their labor—are  protected under the statutory labor exemption to antitrust law.

The labor-antitrust exemption is based on a combination of two statutes. Section 6 of the 1914 Clayton Act provides that “the labor of a human being is not a commodity or article of commerce.” The 1932 Norris-LaGuardia Act applies to “labor disputes,” described as those addressing “terms and conditions of employment.” Such language, Estreicher and Samuel maintain, was understood at the time to refer to laborers and working conditions generally rather than technical concept of “employment” under the common law of agency’s “right to control” test. This more capacious interpretation accords with the Supreme Court’s 2019 decision in New Prime, Inc. v. Oliviera (2019). There, the Court held that the phrase “contracts of employment,” in the transportation-worker exemption to the 1925 Federal Arbitration Act, embraced work agreements between independent-contractor truck drivers and the company using their services.

Labor’s Antitrust Immunity draws on Professor Estreicher’s work advising Actors’ Equity and the Dramatists Guild facing antitrust threats by theater owners and producers. He previously wrote an amicus brief setting out his labor-exemption theory in the closely watched litigation over Seattle’s municipal ordinance sanctioning organizing by ride-share drivers. Jack Samuel, Estreicher’s former student, brought years of AFL-CIO knowledge to the project. Estreicher speaks highly of their collaboration: “I very much value working with students and practitioners. I have always tried in my academic work to be relevant to lawyers in the field.”  

This article is no exception. Labor’s Antitrust Immunity offers a direct pathway for worker organizing without changes to federal law or local legislation vulnerable to preemption. It gives courts a sound textual rationale for deflecting antitrust challenges, as well as a necessary limiting principle that distinguishes between pure laborers and those who make capital investments as owner-operators. Should courts adopt the article’s analysis, Estreicher notes, it will “advance the economic freedom of these workers,” allowing them to “engage in collective action for their betterment.”