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DOJ Seeks Clarity In Gig Worker Employment Classification

 |  February 13, 2022

In a statement on Friday, the Justice Department’s antitrust division has urged the National Labor Relations Board to clarify how it defines an employee.

The DOJ’s statement came in a dispute between make-up artists and other stylists working for The Atlanta Opera, in which the NLRB found the workers to be employees and not independent contractors, reported The Information.

“Millions of American workers who, until recently, would have been properly classified as employees have seen their work recategorized as independent contracting and have thereby lost crucial [labor] protections,” the DOJ said in urging the NLRB to clarify the definition of how employees are classified. “This trend has been accelerated by the rapid rise of digital platform intermediaries, whose core business model often relies on coordinating the work of large numbers of workers while disclaiming the traditional responsibilities of an employer.”

“Given the close practical relationship between the NLRB’s definition of “employment” and the availability of these antitrust exemptions, any ambiguity in interpreting the NLRB’s “employee” standard created by recent economic changes may have significant consequences for antitrust enforcement, to the detriment of workers and employers alike. Additionally, a growing consensus suggests that a vague or under-inclusive standard also may risk harming competition directly, both by reducing the ability of workers to resist anticompetitive terms and conditions of employment and by creating opportunities for employers to undercut competition by misclassifying their own employees. The Division therefore supports the NLRB in its efforts to modernize its standard in a way that reflects these significant, recent changes in our national economy and advances the shared goals of both the antitrust laws and the NLRA.”

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