Endnotes
1. Extensive litigation and administrative decision making is already under
way involving Uber and other intermediaries. See, e.g., O’Connor v. Uber
Techs., 2015 U.S. Dist. LEXIS 116482, 80 Cal. Comp. Cases 852 (N.D. Cal.
2015); Levin v. Caviar Inc., Case No. 15-1285 (N. D. Cal. 2015); Singer v.
Postmates, Case No. 14-1284 (N.D. Cal 2015.)
2. Truck drivers oer an instructive example. Compare North American Van
Lines, Inc. v. N.L.R.B. [National Labor Relations Board], 869 F.2d 596 (D.C.
Cir. 1989) (under the National Labor Relations Act [NLRA], truck drivers
are independent contractors) with Aetna Freight Lines, Inc. v. N.L.R.B.,
520 F.2d 928, (6th Cir. 1975) (under NLRA, truck drivers are employees).
Compare also Redwine v. Refrigerated Transport Co., 84 S.E.2d 478 (Ga.
Ct. App. 1954) (under state unemployment insurance law, truck drivers
are employees) and Rozran v. Durkin, 381 Ill. 97, 45 N.E.2d 180 (Ill. 1942)
(under state unemployment insurance law, truck drivers are employees);
with Nat’l Trailer Convoy, Inc. v. Undercoer, 137 SE2d 328 (Ga. Ct.
App. 1964) (under state unemployment insurance law, truck drivers are
independent contractors) and Hammond v. Dep’t of Empl.,480 P2d 912
(Idaho 1971) (under state unemployment insurance law, truck drivers are
independent contractors).
3. ere is a subtle but important distinction between a company like Apple
and Ly in this regard. Apple does not manufacture iPhones, which are
integral to its business, but instead contracts out their manufacture to
Foxconn and other suppliers. Apple is not an intermediary that hires
independent workers to provide personal services to third-party customers.
Rather, it enters into a bilateral relationship with Foxconn in which Apple
buys what Foxconn produces according to Apple’s specications. Foxconn
does not interact with Apple’s customers. Apple contracts with Foxconn to
produce a good that Apple and others sell to customers.
4. See, e.g., United States v. Federation of Physicians and Dentists, Inc., CA 98-
475 JJF (D. Del. Oct. 22, 2001) (consent decree), http://www.justice.gov/atr/
case-document/proposed-nal-judgment-116; United States v. Federation
of Certied Surgeons and Specialists, Inc., 64 Fed. Reg. 5831 (Dep’t
Justice 1999) (consent decree); Federal Trade Commission v. College of
Physicians and Surgeons of Puerto Rico, https://www.c.gov/enforcement/
cases-proceedings/9710011/college-physicians-surgeons-puerto-rico-
centralmed-inc-fajardo. See generally Kennedy 2014 at 155–60; Brewbaker
2000.
5. Title VII of the Civil Rights Act, 42 U.S.C. § 2000e (1964) (prohibiting
employment discrimination on the basis of sex, race, color, national origin,
and religion); Age Discrimination in Employment Act, 29 U.S.C. §§ 621–
634 (1967) (prohibiting age discrimination against anyone at least forty
years of age); Americans with Disabilities Act, 42 U.S.C. §§ 101–336 (1990)
(prohibiting discrimination against people with disabilities); Equal Pay Act,
29 U.S.C. § 206 (1963) (prohibiting employment discrimination between
employees on the basis of sex by paying unequal wages for equal work).
6. Exec. Order No. 11,246, 41 C.F.R. 60-1.1 (1978) (prohibiting U.S.
government contractors from employment discrimination on the basis
of race, color, religion, sex, or national origin); Exec. Order No. 13,672,
41 C.F.R. 60-4.9 (2014) (prohibiting U.S. government contractors from
discriminating on the basis of sexual orientation and gender identity);
Rehabilitation Act, 29 U.S.C. § 503 (1973) (prohibiting discrimination
on the basis of disability in programs conducted by federal agencies,
programs receiving federal funding, in federal employment, and by federal
contractors); Vietnam Era Veterans’ Readjustment Assistance Act, 38
U.S.C. § 4212 (1974) (prohibiting discrimination by employers and federal
contractors against disabled veterans and veterans who served active duty
during war).
7. Some state laws protect a long list of groups. See, e.g., Minn. Stat. § 363A.17
(providing that it is an unfair discriminatory practice for a business “to
intentionally refuse to do business with, to refuse to contract with, or to
discriminate in the basic terms, conditions, or performance of the contract
because of a person’s race, national origin, color, sex, sexual orientation,
or disability, unless the alleged refusal or discrimination is because of a
legitimate business purpose”).
8. For example, Section 1981 has been applied not only to discrimination
against African-Americans and white Americans, but also against Latinos,
Jews, and Arabs. See, e.g., St. Francis Coll. v. Al-Khazraji, 481 U.S. 604
(1987); Shaare Tela Congregation v. Cobb, 481 U.S. 615 (1987); see also
Pourghoraishi v. Flying J, 449 F.3d 751 (7th Cir. 2006) (collecting cases).
9. It is worth noting, however, that the dierence in forum may disadvantage
low-wage workers who may be unable to aord private counsel to bring a
claim in federal court. Complaints can be led with the EEOC without the
assistance of counsel, although the EEOC is not an adjudicative body and
may not be able to generate a resolution of the complaint.
10. Ironically, Milton Friedman was a key contributor in the group at the
U.S. Treasury Tax Research Department that helped develop the idea of
withholding taxes (Taylor 2014).
11. We do not seek to address the agency law question of whether an
intermediary should be held liable for the negligent or intentionally
tortious acts of the independent workers with which it does business. is
is not fundamentally an employment question and it would not be resolved
by federal laws. Rather, it is an issue for state courts and legislatures.
12. To the contrary, most aspects of the FLSA’s protections against exploitative
child labor do not require measuring work hours. For this reason, these
same protections should apply in the world of independent workers to
guard against any opportunity for this new form of work relationship to be
used for the exploitation of children.
13. Senator Mark Warner (D-VA) has been on the vanguard in considering
alternative models for providing independent workers with social safety
net benets. See, for example, Warner (2015).
14. e NLRB recently reconsidered and signicantly expanded its denition
of joint employment, for example. See See Browning-Ferris Indus,. Case
32-RC-109684 (NLRB Aug. 27, 2015) (Decision on Review and Direction).
15. ese jobs oen have xed terms or are associated with the completion of
a particular task, like constructing a building or sailing a cargo ship from
one port to another.
16. Perhaps because of the prevalence of commissions in outside sales,
Congress exempted outside sales employees from the FLSA’s minimum
wage and overtime protections (29 U.S.C. § 213(a)(1)). e fact that
Congress felt the need to exempt these workers from the FLSA’s protections
strongly suggests that it had concluded these workers otherwise would be
treated as employees.
The Hamilton Project • Brookings 35