Courts and scholars point to the sharing economy as proof that our labor and employment infrastructure is obsolete because it rests on a narrow and outmoded idea that only workers subjected to direct, personalized control by their employers need work-related protections and benefits. Since they diagnose the problem as being our system’s 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 circles.
This Article argues that critics have misdiagnosed the reason why the control test is an unsatisfying method of classifying workers and dispensing work-related safeguards. Control-based 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-non-interference, is adequately captured by the control test. The other, freedom-as-non-domination, 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.