Invisible Workers: The American Gig Economy Compared with International Frameworks
The United States’ gig economy framework is falling behind international standards. This has created a legal paradox in which American gig workers do not receive the legal protection of being employees, but also do not experience the flexibility of being independent contractors.[i] Gig workers are independent workers who complete individual tasks, short-term projects, or ongoing work for non-employer clients.[ii] In the United States, most gig workers in the digital platform business (i.e. rideshare, food delivery, maintenance, and other services) are considered independent contractors rather than employees.[iii] Independent contractors are ineligible for protections under wage and hour laws, anti-discrimination statutes, and unionization structures.[iv] Dismantling the current binary framework which distinguishes between independent contractors and employees could preserve gig worker flexibility while also extending essential legal protections.
The Supreme Court set the current standard for employment status at common law in Nationwide Mutual Insurance Co. v. Darden.[v] In Darden, the Court held that the control test for employment status focuses on who has the right to control the manner and means of work.[vi] The issue with this test in the context of the gig economy is that “control” is not made evident in the same way as it is in a traditional job with a manager and employee hierarchies.[vii] Instead, digital platforms use algorithmic controls, rating systems, penalties, and payment incentives to control how their workers operate from afar.[viii] Currently, the American legal treatment of gig workers is based upon state-by-state regulation, which produces inconsistencies across jurisdictions.[ix] The instability caused by these inconsistencies allows companies to venue-shop across states to look for lenient classification rules, meaning that gig worker’s rights are dictated by where they live in the country.[x] The United States should instead look to international models such as Canada’s “dependent contractor” status or the European Union’s reclassification mandates to set standards based on the substance of the gig worker employment relationship rather than the words of a binary contract.[xi]
In the 1990s, Canada introduced an intermediate category of “dependent contractor” workers.[xii] A dependent contractor is defined as a person who “is in a position of economic dependence upon, and under an obligation to perform duties for, [another] person more closely resembling the relationship of an employee than that of an independent contractor.”[xiii] While there are concerns about how this definition would apply for gig workers who perform services for multiple online platforms, it has generally expanded the definition of ‘employee’ and will likely help legislators as they evaluate further legislation in this area.[xiv]
In contrast, the European Union adopted an approach in 2024 which focused on economic dependence rather than formulaic contract terms.[xv] The European Union cited Court of Justice judgments that the classification of a self-employed person under national law does not mean that person cannot be classified as a worker under European Union law if that person’s independence is “merely notional.”[xvi] European countries have interpreted this approach differently, but there has been a shift away from contract formalism across the board.[xvii]
The United States should combine these approaches. Introducing a “dependent contractor” status while also analyzing whether a worker’s surface-level independence is disguising an employment relationship on a case-by-case basis would allow American classifications to match the modern workforce. It would also capture the complexity of the new digital platform world.
Olivia Bueschel is a staff member of Fordham International Law Journal Volume XLVIII.
[i] See Moon Hwan Lee, Reimagining Workers’ Rights in the Gig Economy: Bridging the Gap Between Independent Contractors and Employees, N.Y. State Bar Ass’n (Aug. 15, 2025), https://nysba.org/reimagining-workers-rights-in-the-gig-economy-bridging-the-gap-between-independent-contractors-and-employees/?srsltid=AfmBOoompqLm0y5-aPXLrSFDWldZmphpbnc7cfalFXaDzK9kTIEoukSl
[ii] See CO by U.S. Chamber of Commerce https://www.uschamber.com/co/run/human-resources/what-is-a-gig-worker (last visited November 9, 2025).
[iii] See id.
[iv] See Andrew Stewart & Jim Stanford, Regulating Work in the Gig Economy: What Are the Options?, 28 Econ. & Lab. Rel. Rev. 382, 387 (2017).
[v] See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992).
[vi] See id.
[vii] See Stewart & Stanford, supra note 3, at 387-88.
[viii] See id.
[ix] See Lee, supra note 1.
[x] See Wayne Lewchuk, Precarious Jobs: Where are They, and How Do They Affect Well-Being?, 28 Econ. & Lab. Rel. Rev. 402, 407-09 (2010).
[xi] See Stewart & Stanford, supra note 3, at 398-99.
[xii] See Miriam A. Cherry & Antonio Aloisi, “Dependent Contractors” In the Gig Economy: A Comparative Approach, 66 Am. U. L. Rev. 635, 654 (2017).
[xiii] Id. at 655.
[xiv] See id.
[xv] See Lee, supra note 1.
[xvi] See Directive 2024/2831 of the European Parliament and of the Council of 13 June 2024 on improving working conditions in platform work, 2024 O.J. (L 252) 1.
[xvii] See Lee, supra note 1.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.