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39 N. Ill. U. L. Rev. 379 (2018-2019)
Gig-Dependence: Finding the Real Independent Contractors of Platform Work

handle is hein.journals/niulr39 and id is 386 raw text is: Gig-Dependence: Finding the Real Independent Contractors of Platform Work KEITH CUNNINGHAM-PARMETER* Platforms such as Uber and TaskRabbit avoid employment obligations by categorizing their workers as independent contractors. Declining to follow overtime, antidiscrimination, and other workplace mandates, these platforms claim to employ no one. Applied on a grand scale, the entire pro- ject ofplatform labor threatens to destabilize our contemporary understand- ing of employment law. But not all platform workers possess the characteristics of genuine in- dependent contractors, as courts first envisioned that category. Judges did not originally formulate the independent contractor distinction to define the boundaries of workplace protections; rather, the independent contractor classification was designed to limit the liability ofmasters for their servants' torts. Courts in these early cases identified certain workers-independent contractors-who possessed the skill, autonomy, and financial strength to pay for their own tortious misconduct and, accordingly, stand alone in the marketplace. Today, when judges evaluate whether gig workers are independent contractors, they should look for the same hallmarks of commercial self- determination that originally prompted the independent contractor distinc- tion. Fortunately, afew recent judicial decisions have embraced a simplified standard-the so-called ABC test -to assess whether contemporary work- ers are bona fide independent contractors. In contrast to more popular tests that have produced indeterminate results, the ABC standard begins with the presumption that workers who provide labor to firms are employees. If busi- nesses want to overcome this presumption, they must prove three separate elements to show that their workers possess the marketplace strength of le- gitimate independent contractors. By using the ABC test to sort workers based on their economic autonomy, courts can more effectively distinguish * Professor of Law, Willamette University. J.D., Stanford University. I am grateful to Richard Birke, Miriam Cherry, Martin Malin, and Rebecca Smith for helpful conversations and input on this Article. In addition, Christina Luedtke and Nicholas Peasley provided out- standing research assistance throughout this project. Finally, I greatly appreciate the excellent library research support that I received from Mary Rumsey. 379

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