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14 Hastings Bus. L.J. 1 (2018)

handle is hein.journals/hbuslj14 and id is 1 raw text is: 












The Future of Independent Contractors and

Their Status as Non-Employees:

Moving on from a Common Law Standard

John A. Pearce  II
Jonathan  P. Silvat


                            INTRODUCTION

     Technology   is transforming modern   employment   as new, disruptive
ways  of conducting  business are redefining how   the employer-employee
relationship functions. Despite these changes, the employment classification
laws in the United States, which are based on archaic concepts of a master-
servant relationship, have failed to keep pace with the changing commercial
environment.  The  result is that employers, workers, and judges are unclear
about the distinctions between independent contractors and employees,  and
the rights and privileges that come with each respective classification.
     After assessing the current legal framework in the United States and its
history, this article explores a two-component solution to the problem of 21st
Century worker  classification. We begin with a detailed analysis of the ABC
test, which presumes a worker  is an employee unless the service performed
is without control by the employer, outside of the employer's usual course
of business, and that which the worker is customarily engaged in through an
independently  established enterprise. Now established as the most popular
legal methodology  for distinguishing between  employees  and independent


    *  John A. Pearce II, Ph.D., is the VSB Endowed Chair in Strategic Management and
Entrepreneurship and Professor of Management, Villanova School of Business, Villanova University.
Professor Pearce received his Ph.D. degree from The Pennsylvania State University, his M.B.A. degree
from the University of Pittsburgh, and his B.B.A. degree from Ohio University. Dr. Pearce specializes
in strategic planning and legal issues in business. He can be reached atjohn.pearce@villanova.edu.
    t  Jonathan P. Silva is an International Tax Associate at PricewaterhouseCoopers in Boston, MA.
He received his J.D. at the Villanova University Charles Widger School of Law in 2017, his M.B.A. at
the Villanova University School of Business, May 2017, and his B.S. in Mathematics at Boston College
in 2014. He can be reached atjonpsilva7@gmail.com.


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