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The Gig is Up: How the Future of the Modern American Economy Necessitates a New Class of Worker to Protect Employee Rights

The advent of short-term job placement facilitators, such as Uber and Task Rabbit, has drastically changed the employment landscape of modern America over the past 15 years. For decades, the average American worked at a so-called “traditional” job, received benefits from their employer, and retired after 40-some-odd years with a golden watch. With the advent of the “gig economy,” workers no longer feel tied to any specific employment position, but take short-term, flexible, autonomous opportunities, or “gigs.” ((See Emily C. Atmore, Killing the Goose that Lay the Golden Egg: Outdated Employment Laws Are Destroying the Gig Economy, 102 Minn. L. Rev. 887, 888 (2017).)) The emergence of such a class of workers requires consideration of their position within the American economy and the protections that should be extended to them. ((Michael L. Nadler, Independent Employees: A New Category of Workers for the Gig Economy, 19 N.C. J. L.& Tech. 443, 474 (2018).)) Are they simply independent contractors? If so, can they be excluded from the traditional benefits that have been bestowed upon traditional employees?

Gig economy workers merit consideration as a third class, a hybrid of traditional employee merged with an independent contractor. Despite sharing some of the characteristics of traditional employees, gig workers share none of the benefits of such status and remain largely unprotected as a class of workers. By welcoming gig employees into the fold of the American workforce and granting them the traditional benefits commensurate with their work, the health and safety of a burgeoning class of citizens can be protected.

The advantages to adding gig workers as their own class are plentiful. By adding these workers to their own class, they can obtain health insurance, 401(k)s and training in their field of work, all of which are benefits accrued for employees that are recognized as full-time hires, but denied to those that are part-time or independent contractors. This enhances productivity, stimulates economic growth, and enhances the quality of life for a growing section of the American workforce. A primary goal of a new classification of workers is clarity and predictability. ((See Nadler, supra note 2, at 482.)) Employees should have a measure of confidence regarding how their employer disputes will be handled. ((See id.)) The current system is miasmatic, ambiguous, and unhelpful to employees, resulting in predatory practices by employers. ((See Blake Stafford, Riding the Line Between “Employee” and “Independent Contractor” in the Modern Sharing Economy, 51 Wake Forest L. Rev. 1223, 1242-1243 (2016).)) A secondary goal of a new classification of workers is extending the legal protections of traditional workers to those in the gig economy. ((See Nadler, supra note 2, at 487; Atmore, supra note 1, at 915.)) There are several avenues by which legal protection can be achieved, such as amending the National Labor Relations Act to permit gig economy workers to unionize ((Nadler, supra note 2, at 488.)) or incentivizing companies to extend benefits to their gig economy workers. ((See Diane Mulcahy, What If We Extend Employee Benefits To All Workers, Forbes (Jun. 16,2019), (discussing advantages and economic efficiencies gained by extending benefits to gig economy workers).))

The forecasted increase in gig workers due to changing technology increases the need to extend employee benefits to gig workers going forward. Emerging technology and automation threaten to replace more and more traditional career paths, forcing more people to find alternative means of employment. ((See Darrell M. West, Will robots and AI take your job? The economic and political consequences of automation, Brookings Blog (Apr. 18, 2018), Instead of fighting the change, policymakers should refocus economic plans to ensure that people who are displaced by technology are not left unprotected when they pursue less traditional means of employment. In the same way that technology has left jobs such as lamplighters or carriage constructors as obsolete relics of a bygone era, traditional jobs may give way to “gig” employment, a trend that has become evident in the transportation sector. ((See Katharine G. Abraham et. al., The Rise of the Gig Economy: Fact or Fiction? 1 (2018) (discussing how the gig economy has significant implications in the transportation sector, even if it has not permeated the rest of the economy).))

By adding gig economy workers into their own class, giving them the benefits they deserve, and signaling to them that their jobs are valuable, the American economy will gain a new motivated and empowered workforce. Withholding such benefits risks alienating a productive base of workers.

Though the advent of the “gig economy” heralds a new wave in employment, there will be growing pains associated with a new class of workers. First and foremost, the tax system will have to be restructured. ((See Caroline Bruckner, Congress failed to fix tax woes for gig workers, The Conversation (Feb. 15, 2018), (stating that there are several inadequacies in the current U.S. tax laws).)) Employees without employers deserve recognition as separate from independent contractors, a distinction which is impossible with the current IRS tax laws and its rigid classifications that exclude gig workers. ((See id.)) Additionally, there are certain economic and societal incentives to having workers remain in one stable job instead of flitting between work as “gig” employees. ((Ephrat Livni, The gig economy is quietly undermining a century of worker protections, Quartz (Feb. 26, 2019), (discussing how the gig economy is rarely a substitute for a real career).)) Gigs are rarely a substitute for a career, and those that service the gig economy typically do so out of economic hardship and can become stuck in a “cycle of struggle.” ((Id.)) Regardless of these concerns, the gig economy is here to stay, its workers are a real class of people who need to be protected, and the growth of technology only means that more and more employment opportunities will displace their traditional counterparts.