Posted by Social Science Research Network
The Enduring Ambiguities of Antitrust Liability for Worker Collective Action Sanjukta Paul (University of California)
Abstract: This Article examines the regulation, by antitrust law, of collective action by low-wage workers who are classified as independent contractors, and who therefore presumptively do not receive the benefit of the labor exemption from antitrust law. Such workers find themselves in the position of most workers prior to the New Deal: at once lacking labor protections, yet exposed to antitrust liability for organizing to improve their conditions. I argue that this default rule is the legacy of a problematic history that is taken for granted by the contemporary antitrust framework.
In Part I, I show that the threat of antitrust liability is a powerful constraint upon contemporary independent contractor workers’ own ability to take action to address their working conditions. In Part II, I show how the legal framework of the labor exemption reinforced the underlying assumption that antitrust regulates worker collective action, even as it immunized most workers from such liability (so long as they continued to be considered employees). In Part III, I trace the application of antitrust liability to worker collective action to the time before the labor exemption, arguing that pre-New Deal courts imported fundamentally hierarchical and coercive tenets from the common law tradition into the fledgling antitrust law in order to apply it to contain worker organizing, thereby creating tensions with their own freedom of contract principles. In Part IV, I argue that the modern framework for antitrust does not compel the continued application of this default rule, and indeed supplies materials for a fresh, more balanced reconsideration of it.
Ultimately, the situation of these workers is a test of what antitrust fundamentally says about labor, absent a specific exemption. Because that exemption is currently rooted in the New Deal network of labor regulation, and because the latter’s functioning is in decline, antitrust’s treatment of labor becomes a baseline for critical conversations about how to reform or replace our current framework of labor regulation – in the same way that it was the baseline for those conversations prior to the New Deal itself. In particular, the fundamental assumption that workers’ right to organize for economic betterment is a right that must be granted by the state – an “exemption” to be bargained for, perhaps by giving up other things – has policy implications far beyond independent contractor workers.
Featured News
Redfin Settles $9.2M Commission Inflation Lawsuits
May 7, 2024 by
CPI
DOJ Supports Colorado’s Efforts to Block Kroger-Albertsons Merger
May 7, 2024 by
CPI
Japan Considers Regulation of AI Developers
May 7, 2024 by
CPI
European Commission Extends Decision Deadline for Ita-Lufthansa Merger
May 7, 2024 by
CPI
UK, US and Australia Sanction Senior Leader of LockBit Cybercrime Gang
May 7, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Economics of Criminal Antitrust
Apr 19, 2024 by
CPI
Navigating Economic Expert Work in Criminal Antitrust Litigation
Apr 19, 2024 by
CPI
The Increased Importance of Economics in Cartel Cases
Apr 19, 2024 by
CPI
A Law and Economics Analysis of the Antitrust Treatment of Physician Collective Price Agreements
Apr 19, 2024 by
CPI
Information Exchange In Criminal Antitrust Cases: How Economic Testimony Can Tip The Scales
Apr 19, 2024 by
CPI