The question sounds technical — “who counts as an employee?” — but it determines whether a worker can unionize, collect overtime, get workers’ compensation, or claim unemployment. Paul Osterman traces the legal fight at the core of the gig economy and why it matters far beyond the 1.9% of the US workforce currently classified as gig workers.
- Uber’s CEO made $24 million in 2022 while only 13% of drivers earned $30,000+. Yet the company insists drivers are “driver-partners,” not employees.
- FedEx, Amazon Flex, and Walmart’s Spark delivery system are all pushing the same boundary — reclassifying as much of their workforce as freelancers as the law allows.
- Two competing federal legal tests (DOL’s “suffer or permit to work” standard vs. NLRB’s common law test) cycle with every administration: Obama (broad) → Trump (narrow) → Biden (broad) → expected Trump reversal again.
The ideal fix is the ABC rule, already used by 30+ states: presume everyone is an employee unless the employer proves (A) no direction/control, (B) work outside the usual business, and (C) the worker has an independent business doing that work. The 2021 Protecting the Right to Organize Act would have codified it nationally — but it died in Congress.
Without legislation, the answer to “who is an employee?” depends entirely on who sits in the White House and on the courts. Osterman’s piece is a clear, concrete look at how a definitional ambiguity in labor law becomes a weapon against the entire workforce.