Freedom from Independence: Collective Bargaining Rights for 'Dependent Contractors'

Abstract

Myriad forms of service relationships drive the U.S. economy, with infinite and subtle variations in the terms and conditions of work and the legal rights of workers. Many independent contractors work beside employees doing the same job, for the same pay, but without the legal rights and protections of their co-workers. They are self-employed but lack the rights and privileges of self-employment; like employees, they lack individual bargaining power to negotiate with their “employer,” but unlike employees, they are barred by state and federal law from organizing with others similarly situated. These independent contractors are more accurately described as “dependent contractors,” a category of workers not contemplated by the framers of the National Labor Relations Act (NLRA).The wholesale exclusion of dependent contractors from the auspices of the NLRA has perpetuated an imbalance of economic bargaining power and labor strife the law was designed to redress. Given the repeated denial of labor and employment rights to dependent contractors by the courts, labor activists would need to craft legislative solutions in order to remedy the repeated abuse of dependent contractors.Amending the NLRA to include those dependent contractors whose relationships with employers warrant protection would be the simplest and most inclusive remedy. Given the current national political climate, that solution is arguably unlikely. Nonetheless, opportunities for enacting more inclusive legislation exist on the state level. This paper proposes the development of a state regulatory body, a dependent contractor relations board, similar to California’s Agricultural Labor Relations Board (ALRB) to help reduce disparities in bargaining power between dependent contractors and their hiring party. Labor strife, worker exploitation, and lost tax revenue compel the need for greater state regulation of the dependent contractor relationship.