Unbundling Freedom in the Sharing Economy

Courts and scholars point to the sharing economy as the most recent proof that our labor amp employment infrastructure is obsolete because it rests on a narrow and outmoded idea ”namely that only workers subjected to direct personalized control by their employers need workrelated protections and benefits Since they diagnose the problem as being our system\u27s emphasis on control these critics have long called for reducing or eliminating the primacy of the control test in classifying workers as either protected employees or unprotected independent contractors Despite these persistent criticisms however the concept of control has been remarkably sticky in scholarly and judicial circlesbrbrThis Article argues that critics have misdiagnosed the reason why the control test is an unsatisfying method of classifying workers and dispensing workrelated safeguards Controlbased analysis is faulty because it only captures one of the two conflicting ways in which workers scholars and decisionmakers think about freedom at work One of these ways freedom as noninterference is adequately captured by the control test The other freedom as nondomination is not The tension between these two conceptions of freedom both deeply entrenched in American culture explains why the concept of control has been both faulty and sticky when it comes to worker classification brbrDrawing on a firstofitskind body of ethnographic fieldwork among workers and policymakers across several sharing economy industries this Article begins by showing how workers themselves conceptualize freedom as both noninterference and nondomination It then goes on to show that both these conceptualizations of freedom also exist in case law and statutory law pertaining to work In doing so the Article demonstrates that there is no great divide between work law and work practices and that if anything the problem is that classification doctrine reflects and reinforces an irresolvable tension in the way lay and legal actors think about freedom at wor