Collective Bargaining Beyond Employment in the United States

Abstract

Workers who are self-employed independent contractors and not “employees” within the meaning of the National Labor Relations Act (NLRA), by definition, have no right to engage in concerted activities under the NLRA; indeed they face potential liability under federal antitrust laws for such activities. Antitrust law and labor law establish opposite baseline principles—competition versus coordination—for their mostly separate domains. In an echo of the pre-New Deal history of organized labor in the United States, independent workers are again contesting the primacy of competition, and asserting the legitimacy of coordination, among those who earn their livelihood by selling their labor power. For now, those efforts must squeeze into either the space that arguably lies in between the domains of labor law and antitrust law—that is, in a broad interpretation of the “statutory labor exemption” to antitrust liability—or in one of the other safe harbors from antitrust liability.

Part I of this article maps the US legal landscape for collective bargaining beyond employment, focusing on antitrust law and the potential safe harbors from antitrust liability. Part II surveys state and local experiments in governing work beyond employment in light of the challenges posed by antitrust law, including attempts to gain state authorization for actual collective bargaining company by company or by sector, tripartite sectoral regulation, or direct regulation of terms and conditions of work. Running through these experiments we detect rival versions of the much-debated but (in the United States) mostly-theoretical “third category” between employees and independent contractors. To whatever extent independent workers manage to secure immunity from antitrust liability for their collective bargaining, they will occupy one such intermediate category. But platform employers are campaigning—as they did successfully with Proposition 22 in California—for a very different intermediate category, one that includes a few rudimentary employee-like protections but that otherwise avoids both the strictures of employment law and the counterpressure of collective action. Given the fragmentation and polarization of American politics, the contest is likely to continue on many fronts for many years.

Keywords: collective bargaining, independent contractors, misclassification of employees, Uber, platform workers, antitrust and labor