Unions for Independent Contractors
![handle is hein.journals/lablaw37 and id is 419 raw text is:
393
Unions for Independent
Contractors
Mark D. Schneider*
Introduction
The National Labor Relations Act (NLRA) was enacted at a time when
a great majority of the nation's workers were employees in the tra-
ditional sense of that term: workers who directly worked for and were
paid by their employers. That is no longer the case. Over a third of the
nation's workers are now characterized as contingent workers who
are either independent contractors, moonlighters, freelance business
owners, or other kinds of temporary workers.1 Of that number, about
fifteen percent of adults may be classified as independent contractors.2
That percentage has also increased over the last twenty years,3 as a
result of a fissured workplace in which traditional employers have
contracted out many of the functions traditionally performed by the
employer's own employees.4 This issue has taken on new prominence
with the growth of the so-called gig economy, with sixteen percent of
Americans now earning money from an online gig platform, and with
thirty-one percent of current gig workers indicating that the gig work
is their main job-representing three percent of the adult workforce.5
* Adjunct Professor of Law, New York University School of Law. I am grateful for
the assistance on antirust issues provided by Donald Baker of the firm Baker & Miller.
1. General Gig Economy Statistics, TEAMSTAGE (2023), https://teamstage.io/gig
-economy-statistics [https://perma.cc/HE35-VEFJ] (noting thirty-six percent ofAmerican
workers participate in the gig economy, a number likely to rise to over fifty percent by
2027, and twenty-nine percent of workers currently perform gig work as their primary
job). Alexaqz, Contingent Workers Now Make Up 34% of the US Labor Force, QUARTZ (Nov.
24, 2015), https://qz.com/472248/contingent-workers-now-make-up-34-percent-of-the-us
-labor-force [https://perma.cc/UN8P-VL2X]; Jeremy Neuner, 40% ofAmerica's Workforce
Will Be Freelancers by 2020, QUARTZ (Mar. 20, 2013), https://qz.com/65279/40-of-americas
-workforce-will-be-freelancers-by-2020 [https://perma.cc/75TB-RKJJ].
2. See Katherine G. Abraham, Brad Hershbein, Susan N. Houseman & Beth Trues-
dale, The Independent Contractor Workforce: New Evidence on Its Size and Composi-
tion and Ways to Improve Its Measurement in Household Surveys 31 (Nat'l Bureau of
Econ. Rsch., Working Paper No. 30997, 2023), https://www.nber.org/system/files/working
_papers/w30997/w30997.pdf [https://perma.cc/EN73-R5HJ].
3. See Katherine Lim, Alicia Miller, Max Risch & Eleanor Wilking, Independent
Contractors in the US.: New Trends from 15 Years of Administrative Tax Data 2, 14-15,
36 (IRS Working paper, 2019), https://www.irs.gov/pub/irs-soi/19rpindcontractorinus.pdf
[https://perma.cc/L2NP-J7DX] (finding the percentage of workers with independent con-
tractor income had grown since 2001).
4. See generally David Weil, The Fissured Workplace (2014).
5. Monica Anderson, Colleen McClain, Michelle Faverio & Risa Gelles-Watnick, The
State of Gig Work in 2021, PEW RSCH. CTR. (Dec. 8, 2021), https://www.pewresearch.org](ViewImageLocal?handle=hein.journals/lablaw37&div=28&collection=&method=preview&ext=.png&size=3)
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