The document discusses labor relations in the new economy and issues faced by independent contractors, such as misclassification by employers to avoid responsibilities. It explores debates around how independent contractors are distinguished from employees under labor laws. The emergence of organizations like the Freelancers Union is examined as an example of how workers in the new economy are self-organizing in nontraditional ways outside of traditional employee protections.

1. Indie Contractors in the New Economy: In the Name of Industrial Peace
Socio-Legal Perspectives in Labor Law (Fall 2013)
Professor Eric Fink
Elon University School of Law
Final Paper and Upper Level Writing Requirement
Shoshanna Silverberg
ssilverberg@elon.edu

2. INTRODUCTION
In this paper I look at labor relations in the New Economy, and trace out ways in which these
relations reflect both social progress for workers as well as certain major limitations. A prime
example is the plight of independent contractors in the New Economy. The issues this
demographic faces begins with the misclassification of workers purposely by employers in order
for them to avoid the responsibilities that come with being an employer. The issue is further
complicated by the changing landscape of today’s economy and the different ways in which
people are provided with opportunities to work. Some are more or less forced into ‘self-
employment’ while others elect to be ‘freelancers.’ Conflict emerges when the ethos of workers
now is tantamount to the ethos that drove a movement toward worker protections under federal
legislation in the first place, namely through the National Labor Relations Act. For these
workers, promoting industrial peace through innovative business practices and nontraditional
forms of employment is at the heart of their self-organization. And yet, under labor law, they are
left without many of the protections which other workers whose livelihoods are equally
precarious as ‘employees’ are afforded. This paper seeks to highlight these issues and propose
several ways that the needs of these workers may be addressed.
BACKGROUND
THE WAGNER ACT: HISTORY AND PURPOSE
The Wagner Act, also known as the National Labor Relations Act (NLRA), was passed in
1935 and sought to promote industrial peace.1
To achieve this it encouraged collective
1
See “Not a Limited, Confined, or Private Matter – Who is an ‘Employee’ Under the National labor Relations Act,”
by Ellen Dannin, Labor Law Journal, 2008.

3. bargaining and unionization.2
The “heart” of the Act (Section 7) provides employees
with three distinct statutory rights: (1) to organize; (2) to bargain collectively through a
representative of their own choosing; and (3) to engage in concerted activities for mutual
aid and protection (which includes strikes, pickets, and boycotts, which are protected in
Section 13).3
The National Labor Relations Board (NLRB) was established in Sections 3
and 4, with the procedures it must follow set out in Section 10. The idea was for the
NLRB to be the primary arbitrator of justice between workers and management, with the
federal court system picking up particularly complicated or controversial cases on appeal.
The Wagner Act was amended in 1947 by the Taft-Hartley Act. The aim of Taft-Hartley
was to re-orient the Wagner Act in a more favorable lean toward employers.4
This came
shrouded in the belief that union abuses were too rampant for labor law to tolerate.5
A
taste of what the amendment offered is found in Section 7, which was modified to
explicitly give employees the right to refrain from organizing, collective bargaining, and
engaging in concerted activities for workers’ mutual aid and protection.6
Another
example is the explicit duty the amendment imposed on unions—and by extension on
workers—to bargain in good faith.7
Taft-Hartley also distinguished independent
contractors from employees and excluded the former from the protections of the Act.
CURRENT DEBATES
2
Secunda, Paul M. and Jeffrey M. Hirsch, Labor Law: A Problem Based Approach, Chapter 1: Struggle for Control
Over Employment Relationships at 16.
3
Secunda and Hirsch, Chapter 1 at 16.
4
See Vinel, Jean-Christian, The Employee: A Political History, University of Pennsylvania Press, Philadelphia:
2013 at 123-24.
5
See Secunda at 16.
6 Id. at 18.
7 Id. at 18.

4. One debate that has raged since the New Deal and that continues to be prescient today is
how independent contractors are distinguished from employees. The issue here is who is
afforded protections under the Wagner Act for organizing, collectively bargaining, and
engaging in mutual aid and protection. More specifically, the issue is who was originally
intended by Congress to receive the protections of the Act, and where do the needs of a
larger and larger independent contractor population fit into the intent of the Act today?
This question has animated discussions of unionization and union activity since 1935,
even more so since 1947, and can be examined in the New Economy by looking at New
York’s Freelancers Union. The FU is comprised of tens of thousands of independently
contracted knowledge workers (i.e. not employees) into a “union” that provides little but
health insurance and the comeraderie afforded by an alliance of workers across many
industries and from a range of income levels. This union illustrates the contemporary
landscape of labor and one way that people are self-organizing in the New Economy.
This brings us to the question: should a union of independent contractors be afforded the
same protections as employees who are similarly situated? Some would argue that these
two groups are not similarly situated, or they would not be classified differently under the
law. However, consistency has not been a hallmark of labor law in this regard. Courts
have found workers to be employees in a spectrum of circumstances, as have they found
workers to be independent contractors in a variety of settings, and under a variety of
working conditions. This is another facet of the employee-independent contractor debate
that will be discussed in this paper.

5. Within this discussion is an implicit debate about the proper role of congressional intent
in the interpretation of employee status under the Wagner Act. On one hand, we hear
union-friendly voices urging a return to the original intent of the Act, when empowering
workers to self-organize in the interest of industrial peace was at the heart of the
legislation.8
This is a broader type of analysis that tends to be sympathetic to the activity
of unionization. It views “industrial peace” as best served by empowering workers to
self-organize.9
On the other hand we have advocates of a different type of congressional
intent, one manifested in the passage of Taft-Hartley, which sought to limit what
organizers could lawfully achieve under the Act. This perspective lends itself to an
essentially more narrow analysis, where it is common for a worker’s status to be
determined “independent” even if there is reason to believe that allowing that worker to
unionize would be in the service of dismantling a traditional worker-servant relationship,
thus promoting industrial peace. 10
Ultimately, there seems to be a conflict between what
makes for industrial peace, and whether it is the livelihood of workers that constitutes it
or the maintenance of a hierarchical financial status quo.
Finally, this begs the question, what is the status quo in today’s world? What types of
social enterprises typify business practices in the New Economy? What roles are workers
occupying and how do their roles in society match up with the protections they are or
8 See Dannin.
9 Id.
10 See Zatz, Noah D., “Beyond misclassification: tackling the independent contractor problem without redefining
employment,” The Labor Lawyer, 26.2 (Winter 2011).

6. should be afforded under labor law, specifically, under the Wagner Act? To begin, we
will look at the ethos underlying the “new economy.”
LANDSCAPE OF THE ‘NEW ECONOMY’
Tara Gentile is a gen y blogger who writes and consults on growing businesses in the “new
economy”. In her post, “You are the New Economy: Meaning, Experience, and Connection as
Commerce in the 21st
Century,” she cites the euphemism Bruce Nussbaum (founder of Fast
Company) uses—‘indie economics’-- which she re-names ‘you-centered economics’ to describe
her subject.11 12
She states, “[y]ou are not used to being at the center of the economy. You have
not been the linchpin of economic growth. You have been a mere cog in the machine. You were
a commodity to be traded.”13
She goes on. “You are becoming the heart [and] soul of a new
engine of economic growth. You are influencing giant corporations through your words [and]
actions. You are forming microbusinesses and taking earning into your own hands. You are less
dependent on ‘the system’ and more dependent on your community.” She also states, “[b]ut
‘you’ doesn’t just mean you. ‘You’ is also ‘the other.’”14
Gentile characterizes the New Economy as a paradigm of thought that promotes the
understanding that “a business is nothing if it doesn’t serve a greater good. All business is social
entrepreneurship . . . All business has an obligation to create a legacy of sustainability, creativity,
11 For more on Nussbaum or “indie economics” see “6 reasons why ‘indie capitalism’ is on the rise,” by Joe
McKendrick, June 28, 2013, www.smartplanet.com/blog/bulletin/6-reasons-why-8216indie-capitalism-is-on-the-
rise/23110.
12 “The Rise of Indie Captialsim,” by Bruce Nussbaum, February 26, 2013,
www.businessweek.com/printer/articles//98850-the-rise-of-indie-capitalism
13
“You are the New Economy: Meaning, Experience, and Connection as Commerce in the 21st
Century,”
blog post by Tara Gentile, www.targentile.com/indie-economics/
14 Id.

7. innovation, and service . . . Businesses serve people. People do not serve businesses.” I suggest
that the ethos Gentile is describing is both at the heart of New Economy business models and the
changes we are seeing in the re-organization of labor and labor relations as well.
Bolstering this idea, in an online discussion of radio station KCRW’s segment featuring “The
Rise of the Sharing Economy,” one participant referenced the interlocked meaning of
“possessions, ownership, mental stability and happiness” and commented that “every single
thing any psychologist or human behavioral expert will tell you about ownership of
consumerable goods, is that they don’t make you happy. Ever.”15
This belief seems to belie the
New Economy concept of labor. The empty production of goods to facilitate an empty
consumption of goods is becoming increasingly anathema to many.
Along this same line, it seems “work” is no longer being defined by what one performs for the
pure satisfaction or benefit of an employer. “Labor” is something people want to be engaged in,
and the basis for more and more people’s participation in unions has less to do with their
relationship with an employer, or the nature of the work that someone does--and by extension
wages and working conditions—than it has to do with facilitating a more existential type of
connection and support for everyone involved. It is almost as if the ethos of the labor movement
of the 1930’s—with its emphasis on solidarity-- has evolved into an ethos that is more broadly
influencing people’s participation in society. Except now the idea of solidarity has been
supplanted by the concepts of creativity and sustainability.
15 www.kcrw.com/news/programs/tp/tp130902the_rise_of_the_shar

8. The futurist Paul Saffo once predicted a new ‘creator economy’ replacing the industrial and
consumer economies.16
Social entrepreneur, Bruce Nussbaum, who has written widely on the
New Economy, likes ‘indie capitalism’ because “it captures more of the social context and
values of this new economy.” He writes:
I especially like ‘indie’ because the indie music scene reflects many of
the distributive and social structures of this emergent form of
capitalism. It’s no accident that Portland and New York have vibrant
indie music scenes and are the centers of a rising new indie capitalism .
. . [Especially in light of the Occupy movement,] I think that . . . [i]ndie
capitalism could be the kind of reinvigorated capitalism that we can all
believe in again. To make it really work, we might need a new indie
economics (of creativity and innovation), plus a new indie set of
political policies.17
Nussbaum points out another characteristic of ‘indie capitalism’ -- “a heightened meaning
embedded in materials and products.” He writes that the “entire notion of brand is upended in
indie capitalism, superseded by the community surrounding the creation of a product or service.
Authenticity is the ‘brand’ in many cases.” This is interesting for a number of reasons, but one is
Nussbaum’s use of the term embeddedness, and the salute he is implicitly giving to social
theorists of the past, such as Karl Polanyi.18
Nancy Fraser, a New School Professor who writes about the re-framing phenomenon going on in
various strands of political activism of the New Economy, observes the need for a ‘third
movement’—one that is both a departure from and a rail against the neoloberalism that has
marked political upheaval in earlier generations. She calls this movement emancipatory and,
16
“4 Reasons Why the Future of Capitalism is Homegrown, Small Scale, And Independent,” by Bruce Nussbaum,
December 5, 2011, http://www.fastcodesign.com/1665567/4-reasons-why-the-future-of-capitalism-is-homegrown-
small-scale-and-independent
17
Id.
18
See Karl Polanyi’s seminal work The Great Transformation: The Political and Economic Origins of Our Time,
Rinehart, New York: 1944.

9. “like Polanyi’s [double movement], the triple movement serves as an analytical device for
parsing the grammar of social struggle in capitalist society.”19
For Fraser and other theorists in Polanyi’s lineage, marketization on the one hand and social
protection on the other constitute the original ‘double movement’. The third would then be some
sort of reaction against yet means to enfold and overcome both of these. The triple movement
would be a way for workers to use the social progress that has allowed them to work in a broader
and broader spectrum of ways, and leverage this increased sense of freedom in connection with
others who identify with it, and collectively, use ‘work’ as a form of resistance. In other words,
for authenticity, as Nussbaum puts it, to be embedded in the New Economy, is for work itself to
be becoming, as Fraser puts it, emancipatory. Thus, the New Economy is about making ‘work’
work for people, and not against them. It is about labor serving as a vehicle for personal growth,
and, embedded in that, is a possibility for work to, perhaps subversively, promote industrial
peace. 20
Some have criticized the burgeoning “indie” approach to capitalism for being nothing other than
what it purports to be undermining or subverting. Examples here include Airbnb and
TaskRabbit, companies that trade on the power of collaborative, embedded means to achieve
what some call nothing but the same kind of profit every other capitalist machine is invented to
“create.” Blogger Tom Slee claims Airbnb and TaskRabbit exploit the term “sharing
economy”—another name for what is afoot in the New Economy--and convert it into terms such
19 Fraser, Nancy, “A Triple Movement? Parsing the Politics of Crisis after Polanyi,” New Left Review 81, May-June
2013.
20 See also “From Polanyi to Pollyanna: The False Optimism of Global Labor Studies,” by Michael Burawoy,
Global Labour Journal, Vol 1, Issue 2, 2010; and “Globalization and Contestation: A Polanyian Problematic by
Ronaldo Munck, Globalizations, Vol. 3, No. 2, June 2006.

10. as “peer power.” By doing so, he argues these capitalists are appropriating what Slee seems to
regard as a truer from of a solidarity/sharing ethos and propagating a business model that is at its
core no different from large corporations with no purported desire to advance collaborative
cultural values.21
This goes against the very grain of a “new” economy.22
In this same vein, George Smith (webmaster at “dick destiny”) wrote in a 2013 blogpost entitled
“Culture of Lickspittle, Decline and Fall, that “[t]he destruction of payment for recorded music
was the first grand achievement of the sharing economy.” He says that “placed within the larger
context of how inequality is [so] high in the US . . . those with access to the means of the sharing
economy employ it to take larger and larger pieces from an economic pie through divestment
from fair compensation for labor.” “More gallingly,” Smith intones, “you can surely say that
Apple and iTunes store funneling digital music purchases through a country with a legal
mechanism for tax evasion is innovation. And Google’s development of YouTube as a service
that provides a great deal of free pirated music with the salve that by attaching a link to a copy of
it at the iTunes store is certainly some kind of wee innovation. But you can also call such things
parasitic or predatory.”23
21
“Why the Sharing Economy Isn’t,” by Tom Slee, August 30, 2013, http://tomslee.net/2013/08/why-the-sharing-
economy-isnt.html
22
Another blog post, this one by Lita Kurth, quotes an interview subject about employees/independent contractors
working for TaskRabbit: ‘They have no insurance. They walk into unknown situations and often get paid less than
minimum wage to do unthinkable tasks. This person found themselves knee deep in cat diarrhea.’ “No minimum
wage is required, no one is monitoring the posters for truthfulness about the task (all they need is an email and a
credit card).” See “Destroying Labor Law in the ‘Sharing Economy’” at www.classism.org/destroying-labor-law-
sharing-economy.
23
CAHY: Labor the ‘sharing economy’, by George Smith (webmaster at dick destiny) on Culture of Lickspittle,
Decline and Fall, July 5, 2013 (dickdestiny.com/blog1/?p=15540)

11. To clarify, this concept of ‘peer power’ and the term ‘sharing economy’ are euphemisms being
used, as bloggers such as Slee and Smith point out, to describe both the actions of worker-
consumers and the larger movement these actors’ habits and decisions are creating.24
“Collaborative consumption” is another term of art that has gained cache, popularized by Rachel
Botsman in her book What’s Mine is Yours. As MIT Center for Civic Media blogger Denise
Cheng explains in her “Glossary for the Sharing Economy,” collaborative consumption “is an
economy where there is net-zero production. On a company level, this looks like the upfront
cost of equipment that will be rented out countless times, what Botsman calls a ‘product service
system’ (think car sharing or bike sharing). On an individual level, this could be renting out a
spare room or other idling asset. [But i]n both of these situations, continual production is
avoided.”25 26
What this trend also avoids is placing one’s trust in a company that promises to provide a service
or product. Instead, one is connected with other individuals who have needs compatible with her
own. This transaction allows for both parties to get what they need at minimal cost and with
non-traditional profits—that is, profit in terms other than dollars. In fact, Botsman argues that
the very currency of the New Economy is trust.27
And she is not alone.
Ulf Zimmerman wrote a book review of three recently published volumes: Frans de Waal’s The
Age of Empathy: Nature’s Lessons for a Kinder Society; Jeremy Rifkin’s The Empathic
24 Other terms being used are “solidarity economy,” “gig economy,” “collaborative economy,” “informal economy,”
“hustling economy,” “circular economy,” “anarchy economy,” and “guelaguetza,” as practiced in Oaxaca, Mexico.
See http://civic.mit.edu/blog/hidenise/terminology-101-a-glossary-for-the-sharing-economy.
25 http://civic.mit.edu/blog/hidenise/terminology-101-a-glossary-for-the-sharing-economy
26 For more on Rachel Botsman’s work see
http://www.ted.com/talks/rachel_botsman_the_case_for_collaborative_consumption.html
27 http://www.ted.com/talks/rachel_botsman_the_currency_of_the_new_economy_is_trust.html

12. Civilization: The Race to Global Consciousness in a World in Crisis; and J.D. Trout’s The
Empathy Gap: Building Bridges to the Good Life and the Good Society.28
Zimmerman himself
is a leadership and ethics professor at Kennesaw State University in its MPA program. One of
the points Zimmerman discusses from de Waal’s book is that today, “one year’s peasant could be
another year’s prince—or at least ‘industrial baron’,” (498) and that “[s]elf-interest and wealth
do not suffice, [de Waal] aptly reminds us, to make a society successful; surveys consistently
show that the greatest happiness is found not in the wealthiest nations but in those with the
highest levels of trust among citizens.”29
Zimmerman notes Rifkin’s observation that “we do not seek autonomy [even as infants] so much
as companionship.”30
“Thus, survival of the fittest is ‘as much about pro-social behavior and
cooperation as physical brawn and competition’ (81).”31
Elucidating a common thread
connecting all three of these authors’ work, Zimmerman surmises that “the purpose of freedom is
[therefore] not just to attain autonomy, but to fulfill life through companionship, affection, and
belonging, and this freedom is based on trust.”32
Going further, Zimmerman notes that “Americans have ‘the pursuit of happiness’ . . . and one
could read Trout’s book as making the case that more empathic government and policies would
facilitate that pursuit.”33
Another way of looking at this is from de Waal’s view that “Thomas
Jefferson’s formulation of ‘all men’s’ unalienable rights to life, liberty, and the pursuit of
28 Zimmermann, Ulf, “Empathy, Ethics, Emotional Labor, and the Ethos of Democracy,” Public Administration
Review, May/June 2011.
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.

13. happiness added the notion that are creatures in search of self-fulfillment—a new narrative that
yokes together rationalism and romanticism” (499). This, he says, “gave rise to a new surge of
empathy that corresponded to the takeoff of the Industrial Revolution.”34
De Waal goes on to
explain:
For Rifkin, a second Industrial Revolution had an equally large impact on our
empathic consciousness: ‘The coming together of the electricity revolution with
the oil-powered internal combustion engine would give birth to a new
communications/energy regime and bring with it still another leap in human
cognition’ (366). Telephones and automobiles quickened the pace of life,
allowing the average individual to become much more widely enmeshed in
social networks. This led to a leveling of social hierarchies, a democratization
of human experience, as we were increasingly exposed to others, and, while we
looked more into ourselves, we also looked more at them. This new self-
reflective psychological age ‘peaked in the 1960s and 1970s with the surge of
the counter-culture and social activism among the baby-boom generation’
(366).”35
Now, de Waal offers, “we are in the ‘age of empathy’ and, by way of illustration, [Rifkin] cites
the virtually global mourning of the death of Princess Diana. More concretely, today the
majority of people live in urban areas, which increases cosmopolitanism, signifying an
increasing appreciation of diversity,” and [a]nthropologists contend that social exchange always
precedes commercial exchange—that is, trust building precedes capital building (499-500).”
Here, we begin to verge on Ronald Inglehart’s theory of ‘culture shift’ “from materialist to
postmaterialist . . . which mirrors this shift to more empathic consciousness (500).”
In this vein, “Rifkin sees . . . our only hope in a ‘Third Industrial Revolution’ with ‘distributed
energies’ and ‘distributed capitalism,’ . . . which is . . . more about sharing and collaboration than
about competition, as we already have seen in phenomena such as Linux and the whole new
34 Id.
35 Id.

14. information and communication technology….”36
De Waal summarizes by stating, “[t]here will
still be money made, but by selling not a CD but access to a time segment of music, not be
selling a set of the Encyclopedia Britanica but access to it, not, to add an even more salient
example I have seen, by buying or renting a car, but by ‘sharing’ a Zipcar . . ..”37 38
Claims that
the rise of Wikipedia and the Open Source software movement illustrate the recent emergence of
“large-scale peer production and the growth of gift economies” have been made by others as
well.39
These all hinge on a sense of opening at the heart of what we regard as “the economy.”
No longer is our trust in democracy tethered to what ‘the economy’ can do for us or what we
must do for it. Rather, individuals’ pursuit of happiness and prosperity is more and more tied up
in the ethos of what we can collectively achieve as participants in the New Economy, both as
workers and as consumers.
The ethos we are discussing, that is now at the heart of economics for many citizens of this
country, strikes a similar chord to what the ethos was for labor organizing in the 1930’s. Here
we shift gears and begin to look at the landscape of unions in the New Economy.
UNIONS IN THE ‘NEW ECONOMY’
Only 6.9 percent of private sector workers are now in unions. This percentage is lower now than
it was at the start of the Great Depression.40
Only 12.3 percent of American wage and salary
workers belong to unions today, according to the Bureau of Labor Statistics, down from a peak
36 Id.
37 Id.
38 For a more nuanced analysis of Zipcar see Harvard Business Review blogposts http://blogs.hbr.org/2013/01/from-
zipcar-to-the-sharing-eco/ and http://hbr.org/2010/10/beyond-zipcar-collaborative-consumption/
39
Stigmergic Collaboration: The Evolution of Group Work, by Mark Elliott, 9 Media Culture Journal 2, May, 2006
(http://journal.media-culture.org/au/0605/03-elliott.php
40
Bill Moyers - Full Show: Is Labor A Lost Cause? July 6, 2012, billmoyers.com/wp-
content/themes/billmoyers/transcript-print.php?post=10317

15. of about one-third of the work force in 1955.41
Popular setiment toward organized labor is also
at an all-time low of 45%.42
In a recent online discussion, Bill Moyers asked his listeners, “with corporations continuing to
put the squeeze on employees, with joblessness and inequality rampant, now would seem the
perfect time for people to turn back to unions to fight for them against the monied interests.
Why haven’t they?”
One response to Moyers’ question came from Diane Kalen-Sukra, “a self-described ’20-year
veteran of labor and union rep for N.A.’s largest unions.’” She wrote:
Everybody knows that union density and power has been on a steady decline for
the past 30 years. Like a fighter past his prime, we spend a lot of time
remembering and reminding others [of] our past battles and achievements—the
eight hour workday, employment insurance, and social security to name a few.
Trade union policy papers endlessly blame this decline on the severity of the
neo-liberal attack on the social welfare state, unions and workers’ rights and
encourage ways to address this by supporting progressive politicians, organizing
the unorganized and encouraging young workers to ‘get involved’… Why is it,
for instance, that the Occupy movement was able to do more to educate, inspire
and change the public is discourse around social and economic inequality, the
corporate agenda, the casino economy and threats to our democracy, in the first
few months of its relatively unorganized and unfunded existence, than the entire
labour movement, with its wealth, army of researchers and octopus-like
communications apparatus, was able to do in a generation?
Another contributor wrote, “[s]mall farmers, small business owners, freelancers and others who
work in the gig economy need to be recognized as workers, too.43
Unions in the US focused on
large industries and the public sector, and when small business people are considered at all, they
41
“When Unions Mattered, Prosperity Was Shared,” by E.J. Dionne Jr., The Washington Post, Monday, September
6, 2010.
42 “The ‘I’ in Union, by Atossa Araxia Abrahamian, Dissent Magazine, Winter 2012. See
www.dissentmagazine.org/article/the-i-in-union.
43
“Gig economy” is another term used to describe the New Economy – see Chang, Miniglossary.

16. are lumped together (as employers or potential employers) with the large corporations, rather
than seeing they have much more in common with workers.”
Moyers engaged further on this topic with Stephen Lerner, a long-time community organizer and
architect of the Justice for Janitors campaign, and Bill Fletcher Jr., a Harvard Law alum who has
worked as a shipyard welder and become an activist fighting for racial justice and union
democracy. Both have also worked with the SEIU. Lerner opens the conversation by stating
that “[t]he question is less is it the right moment to organize, but what are the ways we organize
and what are the things that we have to start doing that really let us take on corporate power.” In
response to Moyers’ question, “Why isn’t th[e current moment in history] the opportunity for an
old fashioned, good old fight for the working people?” Lerner says, “We need . . . [a] new level
of vitality, a new level of tactics, new strategies, new forms of organization that we have not
previously used. That’s where we are.”44
There are many claims against the practices if not the role of traditional unions. There is a
sentiment that the old economy’s approach to unionizing “demand[ ] that union employees
tolerate their own exploitation as a necessary condition of working to free others from
exploitation.”45
This might be referred to as a “’[s]hit happens’ defense, a less ideologically
charged cousin of the appeal to shared sacrifice.”46
Also to this point, it has been said that
“[t]rue unionists tend to (rightfully) view staff-run unions as oligarchies, disconnected from the
44
Bill Moyers - Full Show: Is Labor A Lost Cause? July 6, 2012, billmoyers.com/wp-
content/themes/billmoyers/transcript-print.php?post=10317
45
“When the Union’s the Boss,” by Ned Resnikoff, jacobin/a magazine of culture and polemic,
jacobinmag.com/2013/04/when-the-unions-the-boss/
46 Id.

17. concerns of their members and little better than other hierarchical private entities.”47
And that
“[i]f workplace democracy is to survive and grow over the next few decades, it requires the
cooperation of a diverse coalition in its favor. Firm principles unify such coalitions. Unions
abandon them at their peril.”48
While it seems there are traditional unions and union organizers who are out there organizing
workers in tune with the views espoused above, the intricacies of this approach to organizing, the
success rates and the challenges are beyond the scope of this paper.49
However, other responses
to these concerns are within the scope of this paper, and they can be addressed by what
Freelancers Union Founder, Sara Horowitz, calls “new mutualism.”
Horowitz leads one of the nation’s fastest-growing labor organizations and expects to hit the one
million member mark within three years. This growth is occurring amidst high rates of
unemployment, and parallels the decline of union membership across Labor’s traditional strong
hold industries, such as construction and manufacturing.
Because the Freelancers are, by definition of being “freelancers,” not employees, the Union does
not bargain with employers. What it does do, however, is provide what members deem their
number one priority: affordable health insurance. Horowitz says that having health insurance
47 Id.
48 Id.
49 For a great synopsis of what is happening in this regard (i.e. using Worker Centers) see Confronting the Gloves-
Off Economy: America’s Broken Labor Standards and How to Fix Them, edited by Annette Bernhardt, Heather
Boushey, Laura Dresser & Chris Tilly; written by Scott Martelle and published by the Labor and Employment
Relations Association in 2008.

18. makes it far easier for her members to be part of what she calls the ‘gig economy.’50
We may
also think of this as what some, like Nussbaum, calls the ‘indie economy,’ and what Gentile
describes as the “new economy.”
Horowitz is adamant that the FU “is indeed a labor union because, like other unions, it is a large,
influential, self-supporting organization of workers that pushes to advance their interests, [even
though] its members work for numerous employers in many industries.”51
Janice R. Fine, a
professor of employment relations at Rutgers University, says, “It reminds me of the old guilds
[…] that focused on workers’ individual autonomy, trying to build their own careers, with the
backing of a collective organization to assist them.”52
Yet in lockstep with the buzzwords
various economists and business types are coining to describe the New Economy, a colleague of
Horowitz’s characterizes her as “more like an entrepreneur than an old-style union leader.”53
WHO IS BEING SERVED AND WHY THIS DEMOGRAPHIC IS IMPORTANT
Horowitz, was shocked when she was hired by a Manhattan law firm twenty years ago and found
out the firm intended to treat her not as an employee, but as an independent contractor. As the
New York Times reports it, “She [then] realized that she was part of a trend in which American
employers relied increasingly on independent contractors, temporary workers, contract
employees and freelancers to cut costs. Somewhat bewildered and somewhat angry, she and two
other young lawyers who were also hired as independent contractors jokingly formed what they
50 “Tackling Concerns of Independent Workers,” by Steven Greenhouse, The New York Times, March 23, 2013.
51 Id.
52 Id.
53 Id.

19. called the ‘Transient Workers Union, with the facetious motto, ‘The union makes us not so
weak.’”54
Since then, her satirical union has grown into a source to be reckoned with.
The FU recently conducted an internal survey to get a sense of the socio-economic makeup of its
membership. Findings included the fact that 58% of FU members earn less than $50,000 per
annum (in New York), that 29% earn less than $25,000 annually, and that 12% received food
stamps during the recession, many of whom were college graduates in their 30s and 40s.55
Horowitz contextualizes these statistics by stating, “In today’s economy, there’s a huge chunk of
the middle class that’s being pushed down into the working class and working poor […] and
freelancers are the first group that’s happening to.” Again, not all of these workers are
freelancers by choice; in many cases companies have pushed them into this status because they
either cannot or will not cover the costs requisite for hiring someone as an employee rather than
as an independent contractor. What is new though, is how desperate for basic needs such as food
and health care these middle class “knowledge” workers have become.
Horowitz says her union addresses the needs of people who, like her twenty years ago, have
every hope of being actual employees, but have been shut off from that possibility by companies
whose bottom lines are fattened by reducing its work force to part-time hours or simply refusing
to hire individuals if they are not willing to work as independent contractors.56
This brings us to
54
“Tackling Concerns of Independent Workers,” by Steven Greenhouse, The New York Times, March 23,
2013.
55 Id.
56 For support see Jost, Micah Prieb Stoltzfux, “Independent Contractors, Employees, and Entrepreneurialism Under
the National Labor Relations Act: A Worker-by-Worker Approach,” 68 Wash. & Lee L. Rev. 311 (2011); also see
Zatz, Noah D., “Beyond misclassification: tackling the independent contractor problem without redefining
employment,” The Labor Lawyer, 26.2 (Winter 2011).

20. a New Economy problem: the combination of misclassified workers and self-selecting
freelancers create a work force that is shut out of the protections of labor law while these
workers, however privileged in certain ways, need these protections.
WORKERS WHO ARE CLASSIFIED AS INDEPENDENT CONTRACTORS
As Horowitz’s story demonstrates, one problem facing many workers is misclassification. That
is, the use of the term ‘independent contractor’ to classify workers that might easily also be
called ‘employees’ simply to fatten companies’ bottomlines. Companies who misclassify their
workers purposely in order to gain various benefits of not having “employees” on their payrolls
do so to avoid certain federal and state taxes, and the obligation to provide employee benefits
such as health care, as well as workers’ compensation or unemployment insurance
contributions.57
It is true that independent contractors may enjoy various benefits of the
classification themselves, from being their own bosses, to owning their own client lists, or even
retaining exclusive copyright ownership of any work they may create.58 59
The problem though is
that while employees are afforded protections in labor law—for activities such as providing
mutual aid and protection, collective bargaining, and conducting strikes—independent
contractors are not.
One way this issue presents itself is encapsulated below:
State and federal antitrust statutes currently render unlawful certain
anticompetitive contracts, combinations, and conspiracies. While
human labor is not considered to be a commodity subject to these laws,
courts have found collective negotiation and concerted action by
57 Id.
58
Id.
59
See Comty. For Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

21. independent contractors to constitute illegal price fixing and an
unlawful restraint on trade.60
Thus one major factor apart from the issue of benefits and taxes that companies may bank on
when deciding whether or not to classify their workers as independent contractors is the threat of
unionization, which misclassification allows employers to undermine or forestall.61
But there are other reasons for workers to be hired on as independent contractors as well.
Charles Heckscher, director of the Center for Workplace Transformation at Rutgers University,
sits on the board of the FU and argues:
‘[C]ompanies have clearly and widely moved away from taking
responsibility for long-term careers. These certainly include crude
cost-cutting considerations, but they also reflect the deeper economic
changes with skills and demand metamorphosing so rapidly in so many
domains, it is often more effective to look for those with needed skills
on the open market rather than developing them internally. Once
companies begin to do that, they tend to break the whole pattern of
expectations and commitments which grounded the classic system.’62
In The Precariat: The New Dangerous Class, professor of economic security at the University of
Bath, Guy Standing, explains that there are three types of workers in the New Economy. These
are the ‘salariat,’ who “hold steady, old-fashioned jobs at a fixed workplace; the ‘proficians,’
who are highly educated and sell advanced skills that have grown in value in the so-called
‘knowledge economy’; and the ‘precariat,’ for whom employment is typically short-lived,
uncertain, and delivered without a benefits package.”63
In short:
60
See Jost.
61 See Zatz.
62
See Abrahamian.
63
Id.

22. [C]ompanies saw the benefits of using freelancers and began to do so in
order to remain competitive. The trend remains strong: the most recent
round of layoffs at the Los Angeles Times—where the paper’s entire
book section was let go, then given the option to be re-hired without
benefits—is a perfect, if localized, example of such cost-cutting.
Desperate for work and unable to find any elsewhere, much of the staff
stayed on.64
Standing says there is overlap between these categories, which we can see in the statistical
breakdown of the FU provided earlier. The problem is, regardless of which category these
workers fit into, while they may enjoy to some degree their ‘precarious’ status, they must also
suffer from a certain amount of uncertainty professionally. They are workers who contribute to
the development of many diverse fields. They have typically invested significant time and
money in their educations, and their ability to hold down consistent employment, let alone
employment that compensates them adequately to stay current with their school loans or keep up
with their rent or mortgages, is severely compromised not simply by their choice to become
‘freelancers’ or their employers’ choices to hire them as contractors, but by the nature of the
New Economy. Labor relations have changed, and people’s choices as far as how to realistically
support themselves, have also changed.
WHAT IT MEANS TO BE AN INDEPENDENT CONTRACTOR UNDER THE LAW
At base, an independent contractor is a worker who retains a certain amount of control
over her or his working conditions, whereas an employee lacks a certain amount of
control.65
Labor law in the United States rests on this distinction. While it would seem
that the National Labor Relations Board and the Supreme Court should be able to easily
separate the wheat from the chaff and decide these cases of employee versus indie
64
Id.
65 Bryan, Sarah P., “The fundamentals of independent contractors,” Labor & Employment Law, 40.1 (Fall 2011).

23. contractor in equitable terms, historically the issue has been treated with anything but
clear-cut rules or certitude. To understand the relevance of this issue today, we will take
a look at the NLRB v. Hearst Publications case of 1944.66
In Hearst, the Supreme Court affirmed an earlier Labor Board decision that Los Angeles
newsies (“newsboys”) were indeed employees under the Wagner Act. At least in large
part, the Court came to this conclusion based on an application of the “common law
agency test,” which it declared is not “simple, uniform and easily applicable.”67
In fact,
particularly out of the attempted transfer of tort law principles determining employment
status to the field of labor law, Justice Rutledge admitted, “[f]ew problems in the law
have given greater variety of application and conflict in results than the cases arising in
the borderland between what is clearly an employer-employee relationship and what is
clearly one of independent, entrepreneurial dealing. This is true within the limited field
of determining vicarious liability in tort. It becomes more so when the field is expanded
to include all of the possible applications of the distinction.”68
Justice Routledge went on to state that “congress had in mind a wider field than the
narrow technical legal relation of ‘master and servant,’ as the common law had worked
this out in all its variations, and the same time a narrower one than the entire area of
rendering service to others.”69
He wrote that the question as to who is considered an
employee and who an independent contractor “comes down . . . to how much [is]
66 NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111 (1944).
67 Id. at 120.
68 Id. at 121.
69 Id. at 124.

24. included of the intermediate region between what is clearly and unequivocally
‘employment,’ by any appropriate test, and what is as clearly entrepreneurial enterprise
and not employment.” His sensitivity and the sensitivity of the Court itself, seems to
have been focused on supporting the aims of a Congress that “sought to find a broad
solution, one that would bring industrial peace by substituting, so far as its power could
reach, the rights of workers to self-organization and collective bargaining . . . .”70
Yet, “only partial solutions [c]ould be provided if large segments of workers about whose
technical legal position such local differences exist should be wholly excluded from
coverage by reason of such differences.”71
If this happened, or if the Court relied on too
technical of a definition that was not attenuated closely enough to the particular facts of
each one of its cases, “[t]he consequences would be ultimately to defeat, in part at least,
the achievement of the statute’s objective.”72
With this said, the Court’s rationale was
that in Hearst, newsboys were employees. It felt that “the broad language of the
[Wagner] Act’s definitions, which in terms reject conventional limitations on such
conceptions as ‘employee,’ [and] ‘employer,’ . . . leaves no doubt that its applicability is
to be determined broadly, in doubtful situations, by underlying economic facts rather than
technically and exclusively by previously established legal classification.”73
Specifically, the Court found that newsboys were employees because they “work[ed]
continuously and regularly, rel[ied] upon their earnings for the support of themselves and
70 Id. at 125.
71
Id.
72 Id.
73 Id. at 129, citing NLRB v. Blount, 131 F.2d 585 (8th
Cir. 1942).

25. their families, and ha[d] their total wages influenced in large measure by the publishers,
who dictate[d] their buying and selling prices, fix[ed] their markets and control[led] their
supply of papers.”74
The Court’s decision was also based on the fact that newsboys’
“hours of work and their efforts on the job [were] supervised and to some extent
prescribed by the publishers or their agents. Much of their sales equipment and
advertising materials [were] furnished by the publishers with the intention that it be used
for the publisher’s benefit.”75
This decision came despite the fact that the terms and conditions of the newsboys’ work
were variable, depending on whether they wanted to work part-time or fulltime, or were
inclined to work on a permanent basis or a temporary one, and their activities of actually
selling their papers were in public spaces—street corners—where they were free to move
and communicate as they saw fit. While the Court applied the common law agency test,
also known as the “control test”, in order to assess whether newsboys were employees or
independent contractors, it also viewed the totality of facts in this case as indicating a
relationship of economic dependence existed between Hearst and its workers. These
workers were more dependent upon their employer for a livelihood than they were
afforded the opportunity to make money or generate some type of independent livelihood
through this arrangement for themselves. This meant that even if under the common law
test they could have been found to be independent contractors, their overall condition
more heavily reflected the confines of a master-servant relationship than one in which the
workers were in a position to achieve results for their own entrepreneurial benefit.
74 Id. at 131.
75 Id.

26. The significance of Hearst is twofold. First, the Court in Hearst demonstrated a classic
application of the common law agency/control test, providing clarity as far as what
factors could be looked to when deciding whether a worker was an employee or
independent contractor. But second, the Court was in this case willing to give greater
weight to certain factors from the control test – namely, the entrepreneurial opportunity,
or economic dependence/realities test—so that it could identify genuine imbalances of
bargaining power and remedy them by affording the relatively disempowered workers
protections to organize under the law. Another way of explaining this is that the Court
used congressional intent to justify its broader examination of the facts in this case and
came up with a ruling that reflected an attunement to the totality of circumstances that
create a worker’s position in relation to his/her employer/manager (i.e. the master-servant
relationship).76
Therefore, despite findings that could have amounted to a decision for
newsboys being independent contractors, a broader reading of the case led to a decision
that recognized newsboys’ as statutory employees with the right to organize and
collectively bargain.77
A third legacy of the Hearst case, however, is told through the enactment of the Taft-
Hartley Act in 1947, just three years after Hearst was decided. As backlash against
Hearst, Taft-Hartley amended the Wagner Act to exclude independent contractors from
its definition of employees.78
Then the Court, in NLRB v. United Ins. Co. of Am., made it
clear that only the common law test was to govern who was an employee versus an
76 See Jost generally.
77 See Zatz generally.
78 Contingent Workforce Sec. 7.04, Law Journal Press, 2013.

27. independent contractor. It did so by ruling in United Ins. that “[t]he obvious purpose of
[the Act as amended] was to have the NLRB and the courts apply [only] general agency
principles in distinguishing between employees and independent contractors . . . “79
. The
implication of the Court’s decision in United Ins. was that, within this analysis, no one
factor should be decisive.80
And so, the broad interpretation of the original Wagner Act
was waylaid by the design of an amendment that sought to keep independent contractors
from unionizing. Furthermore, the economic realities test, also interpreted as an
entrepreneurial opportunity test, was re-casted as simply one factor amongst many that
should be evaluated with equal weight in subsequent cases. In this sense, the question of
whether one’s overall position within the employment scheme was more consistent with
the identity of a master or a servant, was relegated into obscurity.
An additional outcome of the United Ins. case was that the Supreme Court set forth a
standard of review for deciding similar cases: “lower courts should uphold Board status
determinations only if it can be said that the Board made a ‘choice between two fairly
conflicting views.’”81
In application, this means that when the courts receive cases that
have already been decided by the Labor Board, the case must have major points on both
sides of the employee/independent contractor issue for workers’ rights as employees to be
upheld. The significance of this can be viewed through the prism of cases such as
Corporate Express Delivery Sys. v. NLRB and FedEx Home Delivery v. NLRB.82 83
79 Jost at fn 60 quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 256 (1968).
80
See HN2, NLRB v. United Ins. Co., 390 U.S. 254 (1968 LEXIS 3014).
81 Bosley, Jeffrey S., “District of Columbia Court of Appeals reverses National Labor Relations Board and finds
delivery drivers are independent contractors,” Employee Relations Law Journal, 35.3 (Winter 2009).
82 Corporate Express Delivery Sys. v. NLRB, 292 F.3d 777; 2002 U.S. App. LEXIS 11139.
83 FedEx Home Delivery v. NLRB, 563 F.3d 492; 385 U.S. App. D.C. 283; 2009 U.S. App. LEXIS 8272.

28. In Corporate Express, we see somewhat of a comeback of Hearst logic being applied by
the D.C. Appeals Court. In this case, as in Hearst, there were many factors of the control
test that could be handed to both sides of the debate over whether a company’s workers
were employees versus independent contractors. In accordance with United Ins., the
evidence created a choice between two fairly conflicting views.84
What the court allowed
to decide this case, however, was the entrepreneurial opportunity factor, which provided
for another layer of analysis to be applied over application of the control test. The court
wrote:
We uphold as reasonable the Board’s decision, at the urging of the
General Counsel, to focus not upon the employer’s control of the means
and manner of the work but instead upon whether the putative
independent contractors have a ‘significant entrepreneurial opportunity
for gain or loss.’ We agree with the Board’s suggestion that the latter
factor better captures the distinction between an employee and an
independent contractor. For example, as the Board points out, ‘the full-
time cook is regarded as a servant [brackets part of opinion: rather than as
an independent contractor] although it is understood that the employer
will exercise no control over the cooking,’ RESTATEMENT (SECOND)
OF AGENCY SEC 202(1) cmt. D (1957). Similarly, a corporate
executive is an employee despite enjoying substantial control over the
manner in which he does his job. Conversely, a lawn-care provider who
periodically services each of several sites is an independent contractor
regardless of how closely his clients supervise and control his work. The
full-time cook and the executive are employees and the lawn-care
provider is an independent contractor not because of the degree of
supervision under which each labors but because of the degree to which
each functions as an entrepreneur – that is, takes economic risk and has
the corresponding opportunity to profit from working smarter, not just
harder.85
The D.C. Circuit followed its own approach in Corporate Express in FedEx, where it
held that “’both this court and the Board, while retaining all of the common law factors,
“shifted the emphasis” away from the unwieldy control inquiry in favor of a more
84 See Corporate Express at 779.
85 Id. at 780.

29. accurate proxy: whether the “putative independent contractors have significant
entrepreneurial opportunity for gain or loss.”’”86
This decision has been criticized for allowing employers more opportunity to exclude
workers who would typically be considered employees.87
I wonder, however, if it may
also present an opportunity for a broader interpretation of employees to be applied in the
future. I wonder this because, while looking at the entrepreneurial opportunity factor in
isolation or as a magic sort of rubric for deciding what might otherwise lie in the province
of a traditional control test, could we not at the same time be hearing a message from the
courts that an economic realities test might also provide a basis for deciding whether or
not a master-servant relationship exists, and from there, determining how much
entrepreneurial opportunity actually exists? The court in FedEx said no, but with
purposeful misclassification so high and an abundance of freelancers whose economic
realities dictate their identities align closer to servant than to master, perhaps there is
hope. At the least, there is a need for this type of broader interpretation and these cases
may indicate the beginning of a trend in this direction.
Another recent case that highlights the issue of how courts and the Labor Board interpret
decisions concerning workers who might be classified as either employees or
independent contractors, is The Greater Lancaster Federation of Musicians complaint
against the Lancaster Symphony Orchestra. In Lancaster, despite the fact that musicians
sign a one-year contract indicating their status as independent contractors, the Board
86 Hirsch, Jeffrey M., “Employee or Entrepreneur?” 68 Wash. & Lee L. Rev. 353 (2011) quoting Fed Ex at 497
quoting Corporate Express at 780.
87 See Hirsch at 355 and see Jost generally.

30. found that they are in a practical sense employees who should be afforded the protections
of the Wagner Act for their self-organization. While factors of the common law test
mounted up on both sides of the issue, when it considered entrepreneurial activity as one
of the factors, the Board seemed to see a larger context for its interpretation of this
question. It wrote:
The fact that the musicians can decide not to work in a particular
program or request to work in more programs does not mean that they
enjoy an opportunity for entrepreneurial gain suggesting a finding that
they are independent contractors. The choice to work more hours or
faster does not turn an employee into in an independent contractor. To
find otherwise would suggest that employees who volunteer for
overtime or employees who speed up their work in order to benefit
from piece-rate wages, and longshoremen who more regularly appear at
the ‘shape up’ on the docks, would be independent contractors. We
reject that notion.88
What we can take from these cases is for one thing, significant confusion. By applying a
common law test that is itself not definitive in its factors or in how they should be
applied, we have a baseline level of ambiguity concerning how to correctly address
questions of employment relationships under the Wagner Act. We also have an internal
conflict in which courts and the NLRB are aware that the issue of whether someone is
more a servant than a master is indicative of how much “control” they actually have over
their destinies in general, and specifically, in the context of their work. We have
identified this historically as the economic realities issue. “Dependence” is another word
we have used to get at it. But now, while we see a return to the entrepreneurial
opportunity question as a factor in this same analysis, we run into the problem of not
being sure how to apply the yardstick of opportunity.
88 Lancaster Symphony Orchestra and The Greater Lancaster Federation of Musicians, Local, 294, AFM, AFL-
CIO, Case 4-RC-21311, December 27, 2011 (Decision on Review and Order) at 7 [357 NLRB No. 152 (N.L.R.B.),
192 L.R.R.M. (BNA) 1105, 2010-11 NLRB Dec. P 15520, 2011 WL 6808002.

31. Workers who are sufficiently disempowered that they can easily be called ‘employees’
and have the right to organize, may be less precarious in their employment and in the
benefits their employment provides than those who are deemed by the common law
agency test to be less disempowered (i.e. indie contractors or freelancers), yet their status
as non-employees confers to them a lesser degree of rights and protections under law. In
Lancaster, the Board recognized that simply because these musicians could under, their
contracts, find work elsewhere, this did not mean they were enjoying an unlimited degree
of entrepreneurial freedom or opportunity. This is because their opportunity was not
conferred to them as a benefit for working in the Lancaster Symphony. Rather, their
employment with the Symphony did not bar them from other entrepreneurial pursuits,
which they needed to engage in because their contracts with the Symphony simply did
not provide sufficiently for their material needs.
A crucial difference exists here between independent contractors who build their work
contracts around the understanding that they will engage with many different clients as
part of the nature of their work, as opposed to their need for more employment because
the benefits and protections they are getting from the first source of employment fails to
give them what they need for survival. In this sense, the musicians are not dissimilar to
newsboys. While both could be considered independent contractors if only common law
agency were used to assess their status, a fuller look at the totality of their employment
situations might easily lead us to see their options, and thus their status, differently.
With this as our context, we may return now to the case of Horowitz’s freelancers.

32. A fair attack to make on freelancers’ claims for needing a union is that there is a privilege
in being a ‘freelancer,’ in getting to reject the norms of establishment-driven big business
and opt instead for an existence that is precarious by choice. However, there are both
practical and historical responses to counter this argument.
On a practical level, we know that many companies misclassify their workers to avoid the
responsibilities of being an employer. That is probably why the term “employee” is not
defined in the Wagner Act itself. The courts must then have decent latitude for
operationalizing the term ‘employee’ because otherwise it would be too easy to say who
is not an employee and leave it at that. On an historical level, in the New Economy we
are seeing higher and higher unemployment rates while the rate of freelancers increases.
The Atlantic published an article in February of 2013 in which it analyzed the numbers of
independent contractors in the U.S. across over twenty professions. Though the
magazine was not able to pinpoint the numbers on freelancers per se, it was able to
crunch numbers on those who are self-employed.89
In traditionally stronghold areas of union organization such as construction and
extraction, 22.6% of those in the field are currently “self-employed.”90
17.6% of those in
building and grounds cleaning are self-employed; and, interestingly, 16.2% of those in
management are self-employed—although whose staffs or projects these workers are
managing and to what degree they are not in some true sense “employed” is
89 “The Geography of America’s Freelance Economy” by Richard Florida, The Atlantic, February 25, 2013.
90 Id.

33. questionable.91
On a general level, it seems fair to ask how many of these “self-
employed” workers enjoy a truly substantial degree of entrepreneurial opportunity. On a
more concrete level, we can see that for someone to be ‘self-employed,’ one need not
possess a great deal of entrepreneurial opportunity. This is an assumption based on
statistics, but it is a logical one given the nature of the work these workers are engaged in;
not everyone can afford to strike out on their own as entrepreneurs, and it is not likely
that “managers”, for instance, are one such group who is truly self-employed.
We can also address this issue by looking at the evolution of foreman’s rights in the
context of American labor law. To wit, regarding passage of the Taft-Hartley Act –
. . . businessmen pressured Congress into amending the National Labor
Relations Act [also known as the Wagner Act] so that foremen in the
nation’s leading automobile, steel, and mining companies would not be
allowed to organize and make common cause with ran-and-file
workers. Relying on a concept inherited from the colonial master and
servant doctrine (the body of rules and statutes relating to the
relationships between masters/employers and workers/servants),
corporate America insisted that unless they were production workers,
employees owed a duty of fealty and loyalty to their employers, making
their participation in unions impossible. “A man can’t serve two
masters,” businessmen repeatedly argued to press their case, suggesting
that for supervisors, foremen, and managers, unionism was
incompatible with the faithful exercise of duty because it would result
in “divided loyalties,” that is, these workers would be torn between
their allegiance to the union and their responsibilities toward their
employer. The loyalty argument was premised on the notion that
democracy and individual rights can be accepted only to the extent that
they do not disturb existing social and economic structures.92
Historically, those who have been associated in the popular imagination with the master
side of the master-servant relationship have not been easily seen by their employers as
needing to be active in their workplaces politically because organizing labor is associated
91 Id.
92 Vinel, Jean-Christian, The Employee: A Political History, University of Pennsylvania Press, Philadelphia: 2013
(see page 2).

34. with activity fit for those who are imagined in closer alignment to the servant. Being
“educated” is one such marker that throws the equation here off.93
For foremen’s loyalty
to be “split” would mean that a stereotype would need to be severed, and alliances
between individuals would need to be calculated in terms of people’s real-life interests,
rather than the symbolic interests being protected at any length by the wealthy and
politically connected. In the New Economy, we are seeing stereotypes splinter apart
down similar lines.
For tens of thousands of “educated” New Yorkers already, “self-employment” is a way
of life, and being part of a union, even if all it is able to provide for its members at this
point in time is access to good healthcare, is protection these workers are getting from
somewhere other than their employers or the federal government. In the New Economy,
unions are apparently not code for worker protection, but code for health insurance.
Currently, this is all that “unions” for independent contractors can offer. This is because
only ‘employees’ are protected under the Wagner Act.
CONCLUSION: WHAT PROTECTIONS SHOULD INDEPENDENT
CONTRACTORS BE OFFERED IN THE NEW ECONOMY?
The first conscious change we might apply to labor law where independent contractors
are concerned is to take away the explicit exclusion of these workers from the language
of the Wagner Act. This would allow the FU, for instance, to begin to collectively
93 As Janelle Orsi points out in her book, Practicing Law in the Sharing Economy: Helping People Build
Cooperatives, Social Enterprise, and Local Sustainable Economies, the question of whether a master-servant
relationship exists and how exactly our courts tend to and should analyze this issue is one the sharing economy
movement could benefit from having developed further (see page 387: “What Is a Master-Servant Relationship?”).

35. bargain, or insist on various other employment benefits for their members. It would also
facilitate political mobilization of members to achieve advances across one another’s
industries. In short, it would empower a legal form of revolution, upsetting the
imbalance of bargaining power present in traditional master-servant relationships.
Except the master here is corporate power and the servant a wildly expanding “creative
class.”
Critics of this idea would say that industrial peace is not preserved through the fomenting
of rebellions. They would say that the Wagner Act was intended to prevent industrial
strife, and that empowering more workers to organize would be counter-productive.
However, the intent of the Act also has grounding in the belief that annihilating the
master-servant relationship is a foundational step in securing equal rights for all people.
In this sense, facilitating more equal bargaining power between whatever parties are
involved in a transaction or contract is a laudable aim when we are discussing the concept
of industrial peace.
A more expansive view of the Wagner Act, a la Hearst, might offer the courts an efficient
way to promote industrial peace in the New Economy. By allowing ‘economic realities’
to impact courts’ decision-making and weighing ‘economic dependence’ against
‘entrepreneurial opportunity,’ a middle ground may be reached. This is because while
many, for instance, FedEx delivery personnel, would likely be considered independent
contractors, there is a chance they would not be. As newsboys could have been classified
as independent contractors but were not because of their general positioning in society as

36. manifested in their work situations (i.e. their economic dependence), freelancers could be
classified this way as well. The precarious nature of their employment would cut for
them being granted the right to organize, despite their class positioning in regard to
education, socioeconomic background, etc.
A third way we could approach this issue is by contemplating the values that go into many
freelancers’ decisions to live a life of precarious employment. There is a significant population
that elects the insecurity of an indie capitalist existence and does not have it foisted upon them
due to lack of education, connections, etc. They are tech entrepreneurs, artists, farmers, even
lawyers. These workers may be different from newsboys or FedEx workers in that these are
largely knowledge workers with privilege in American society that makes them anything but
“servants” in a larger economic realities sense. And yet, to be trading on a currency of trust over
dollars, to be investing time and energy in sharing enterprises that reduce people’s carbon
footprints and enhance community in cities across the country, and to do so while living in New
York City and making under twenty-five thousand dollars a year, is to labor against a concept of
employment that requires there be a servant present at all. It is to be engaged in a form of
revolution that is at the heart of the New Economy and is consistent with the original intent of
the Wagner Act. Logically, the Wagner Act should be able to support those efforts.