THE GIG IS UP
Traditional employment law isn’t keeping up with today’s talent landscape.
By Margaret M. Clark, J.D., SHRM-SCP
For as long as there have been employment laws, business leaders have been
confused about whether and when
to classify workers as employees
versus independent contractors.
And the issue has only intensifed
with the rise of the gig economy and
myriad technologies connecting
short-term talent with project-based employment opportunities.
Unfortunately, our criteria for
approaching the employee-versus-
impose 20th century constraints on a
21st century labor model.
For example, companies’ obliga-
tions to collectively bargain, pay
Social Security taxes, comply with
wage and hour laws, pay benefts,
and comply with anti-discrimination
laws are all based on workers having
“employee” status. Independent con-
tractors, who have become a signif-
icant portion of the workforce, have
no such protections under federal
and most state employment laws—at
least so far.
What issues do you need to consider under both established and
developing law when interacting with
the gig worker talent pool?
MAKE THE DETERMINATION
Start by distinguishing independent
contractors from employees using
the same analysis you always have,
says Daniel Eaton, an attorney with
Seltzer Caplan McMahon Vitek in
San Diego. “It’s the same. It’s
all about control,” he says.
That’s not necessarily reas-
suring for HR, since decades
of making such distinctions
have been challenging. There
has never been a single test
that provides legal certainty,
says Richard Meneghello, an
attorney with Fisher Phillips in
Portland, Ore. “By and large,
these are very similar issues
as those of 10, 20 or 30 years
ago,” he says. Slightly diferent
standards may apply under
federal tax and employment
laws, and states and localities
often have their own statutes
Moreover, the regulators
who formulated the tradi-
tional tests could not have
contemplated the number
and nature of new gig jobs
being created—so employers
will need to bring a modern
sensibility to this traditional
Before engaging gig work-
ers, consider the tasks at hand.
It’s generally not a good idea
to bring on short-term talent