13 - The Problem of “Misclassification” or How to Define Who Is an “Employee” under Protective Legislation in the Information Age

Summary

The problem of determining who is an “employee” under various protective statutes is foundational to the practice of labor and employment law. Any failures of individual bargaining in the employment relationship can be remedied only through collective bargaining or worker protective legislation, both of which require determining which workers are “employees” covered by the relevant statutes. Because the statutory definitions of who is a covered employee are commonly very general and self-referential, the courts have adopted a series of legal tests to provide structure for arguments as to which workers are covered. The tests include the “right-to-control test,” the “economic realities test,” hybrid tests, and more recently, largely at legislative direction, the “ABC test.”