Labor Law Archives – Southern California Law Review

Mind the Gap(s): Mitigating Harassment in a Post-#METOO Workplace

July 2025July 2025Jamillah Bowman Williams,* Elizabeth C. Tippett† & Anu Ramdin‡

In a post-#MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by many workers—particularly those in the most vulnerable jobs. Even when reform efforts are introduced through legislation, courts, and agency guidance, it often does not provide greater power, autonomy, and dignity to women in ways that would more meaningfully protect them from workplace abuse. We are the first to create a database of state legislation, including over three thousand bills, that allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo movement. We assess comprehensiveness by examining how responsive legislation is to existing gaps in legal protection during the five years following the 2017 tweet that took #MeToo activism global, relative to the 2016 baseline period. We found that states introduced a wide breadth of reforms to combat harassment and gender inequality, including some changes that address longstanding gaps in legal protection. Gaps persist, however, and in some cases worsened post #MeToo. Going forward, reform efforts by state legislatures—and all legal stakeholders—will prove most effective if they move away from narrow conceptions of sexual harassment and follow the voice of workers, pursuing a broad, multi-layered agenda around gender equity that is responsive to the realities of our evolving workplace and society. This is especially true in 2025 as the Trump administration redirects the EEOC’s resources towards attacking diversity, equity and inclusion measures.

Introduction

Tarana Burke coined the phrase “Me Too” in 2006 in support of Black women and girls of color who had survived sexual violence, encouraging them to share their stories despite the many pressures they faced to remain silent.¹ Social media galvanized the movement in 2017 after Alyssa Milano took to Twitter, posting: “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet . . . ‘we might give people a sense of the magnitude of the problem.’ ”² The #MeToo³ hashtag was used 19 million times between 2017 and 2018.⁴ Sustained digital participation increased the movement’s visibility and maintained its momentum beyond the boom and bust trend typically observed on social media.⁵ Online engagement surrounding the #MeToo movement also served as a catalyst for offline action, evolving into highly publicized protests, employee walkouts, and historic strikes.⁶ For example, in 2018, McDonald’s employees organized a historic multi-state strike against the company’s sexual harassment policies.⁷ Protesting workers wrote “#MeToo” on signs and covered their mouths with tape, bridging the gap between social media activism and traditional means of protest.⁸ After union-led campaigns and employee-staged walkouts, prominent companies in industries from technology to hospitality changed existing workplace policies such as mandatory arbitration.⁹

Subsequently, the hashtag #TimesUp, referencing the TIME’S UP Legal Defense Fund (“TULDF”), was created to solve the issues #MeToo revealed.¹⁰ TULDF sought to support women of color and low-wage women in the workplace, raising over $24 million to connect these women to attorneys and media specialists.¹¹ The movement also brought an increase in enforcement activity at the Equal Employment Opportunity Commission (“EEOC”), the government agency responsible for enforcing workplace discrimination law. In 2018, the EEOC reported that sexual harassment charges were up nationwide—the first increase observed in a decade.¹² In 2018, the EEOC received 7,609 sexual harassment charges compared with the 6,696 charges received in 2017.¹³ The EEOC recovered almost $104 million more for those with sexual harassment claims between 2018 and 2021 than between 2014 and 2017.¹⁴ The agency capitalized on #MeToo momentum by increasing lawsuits to enforce sexual harassment law and holding more employers accountable.¹⁵

This widespread activism also influenced legislatures. In the five years after #MeToo went viral, thousands of bills were introduced—mainly at the state level. These bills covered a wide range of topics related to gender equity in the workplace, including harassment training, nondisclosure agreements, forced arbitration for harassment claims, pay equity, and leave law. This surge of legislative activity was aimed at eliminating harassment and addressing gender equity in the workplace.¹⁶

While it was clear that legislatures were becoming more attentive to gender equity following the increased activism, it remained unclear whether the new reforms were getting to the root of the issues that cause harassment and addressing the legal gaps that allow harassment to persist. #MeToo media coverage tended to focus on certain victims—namely, the white women in the entertainment industry and the nondisclosure agreements (“NDAs”) that kept them silent.¹⁷ We argue that a more holistic approach is required both for progress over time and for reaching a broader range of working women. This is not unlike the “Swiss Cheese Model” adapted for use to control the spread of infection during the COVID-19 pandemic.¹⁸ The Swiss Cheese Model of risk reduction, developed by James Reason in the 1990s, visually demonstrates how a variety of strategies and actors can work together to reduce risk of harm.¹⁹ In the context of harassment, no single intervention such as restricting NDAs or increasing training can prevent all harassment, but multiple interventions can make a lasting difference. This is particularly true when the approach aims to reduce gendered power dynamics that make harassment more likely.²⁰

To empirically analyze the extent to which lawmakers were comprehensively addressing harassment and gender equity following #MeToo, our team of researchers and lawyers at Georgetown University collected and coded over 3,000 federal and state bills introduced from 2016 to 2022, some of which passed into law. We also analyzed how timing, geography, and political factors shaped the legal activity following #MeToo, relative to the 2016 baseline period. Our dataset is defined broadly and includes all harassment-specific legislation, as well as legislation addressing other gender equity issues including: pay equity, expanded coverage under Title VII of the Civil Rights Act of 1964 (“Title VII”), leave and accommodation, and occupational protections that address intersectional subordination. We found that the variety of legislation introduced by state legislators was consistent with the Swiss Cheese Model of risk reduction; however, there was wide variation across states.

Figure 1. Swiss Cheese Model for Reducing Harassment

This Article focuses primarily on state legislation because virtually all reform activity during the sample period occurred at the state level. Harassment law and gender-based reforms more broadly tend to follow a similar pattern of state-led rights protection and enhancement due to the gradual trend of federal courts contracting civil rights in the workplace among other venues. Federal lower courts, in particular, have increasingly issued employer-friendly Title VII and Americans with Disabilities Act (“ADA”) decisions that have been both formally and informally codified into law.²¹ Congressional gridlock has also led to a standstill with respect to anti-harassment legislation.²² Moreover, extreme partisanship in both Congress and the judiciary diminishes the likelihood of relying on Congress to act as a check when courts roll back rights, as they have in the past.²³ Only six federal reforms related to harassment and workplace gender equity passed during the five years following #MeToo; of those, only two had system-wide effects: the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 and the Speak Out Act of 2022. By contrast, states have been a hotbed of legislative activity.²⁴

State legislation continues to play a central role in law reform, particularly under a second Trump administration that has signaled its hostility to transgender rights and diversity and inclusion programs. For example, Trump’s Executive Order 14168 declared that “ ‘sex’ is not a synonym for and does not include the concept of ‘gender identity.’ ”²⁵ Although the Order does not supersede the Supreme Court’s 2022 Bostock v. Clayton County decision recognizing sexual orientation and gender identity as sex discrimination under Title VII,²⁶ the Executive Order attempts to rescind the EEOC’s 2024 harassment guidance regarding gender identity.²⁷ In this context, the Trump administration seems more likely to roll back available civil rights coverage and enforcement than engage in meaningful reform.

Thus, states now, more than ever, remain important “laboratories of democracy,” a term Justice Brandeis coined in 1932, for achieving nationwide rights’ protection.²⁸ A close look at state legislative activity reveals the state-specific innovation and experimentation apparent in the variety of bills introduced. Nevertheless, the path from state-specific legislative innovation to systemic federal reform is not linear. Rather, broader effects depend on state-specific efforts influencing a combination of players from different arenas, including state courts, state agencies, federal courts, executive action, and even voluntary action by private entities.

We hypothesized that post #MeToo, the most significant activity at the state level would focus on harassment training and NDAs, which were scrutinized in the extensive media coverage. While high-profile support for these kinds of reforms did catch the attention of state legislators, with many bills introduced and passed, state legislators also introduced and passed many bills addressing systemic issues such as pay equity, leave law, and reforms to fill gaps in protection left in the legal landscape prior to #MeToo.

Although media coverage of the #MeToo movement may have overlooked many of the biggest and more systemic obstacles to workplace gender equity—such as lack of coverage under anti-discrimination law, employer retaliation, Title VII interpretation, and underenforcement—many states began to tackle these issues. We argue that states must continue this momentum not only to mitigate harassment more broadly, but also to address intersectional issues of economic precarity and racism that make harassment more frequent and particularly harmful to low-wage workers, who are disproportionately women of color.²⁹ For example, while women of color face higher rates of harassment due to compounding systems of subordination, most of the legislation proposed only strengthens protection for claims of sexual harassment or assault, and not intersectional subordination based on sex and race that is a common experience for women of color.³⁰ As a result, those experiencing intersectional harassment or discrimination based on multiple protected characteristics, including race, ethnicity, or national origin, are left vulnerable.³¹ Legal remedies that fail to consider experiences unique to women of color or other groups with multiple marginalized identities will ultimately fail to root out discrimination and harassment for those individuals, leading to underenforcement.

Nonetheless, our data reveals a broad array of state bills over a sustained period of time, which is a promising development. Complex social problems like harassment have numerous causes, and no single reform will prevent all instances of harassment, encourage employers to respond appropriately, or ensure a just legal remedy for the harm. We expect the net effect of the legislation, along with the social and attitudinal changes resulting from the #MeToo movement, to be positive and lasting. Not all legislation, however, had an equal chance of success to reduce broader trends of harassment. A close examination of the proposed and enacted legislation presents a mixed picture, which we discuss in depth in the empirical analysis that follows.

This Article is organized as follows: Part I explains how and why harassment persists today by looking at its historical origins, the current landscape, and how harassment relates to a growing trend of workplace violence. In Part II, we will discuss the specific gaps in legal protection that allow harassment and gender disparities to persist. In Part III, we offer original empirical analysis that illustrates trends in the anti-harassment and gender equity legislation that emerged during the five years post #MeToo. Finally in Part IV, we discuss the implications of our data for courts, lawmakers, and agencies, including what is still needed to mitigate workplace harassment post #MeToo.

I. The Persistent Nature of Workplace Harassment

This Part provides an overview of the underlying social determinants that yield high rates of workplace harassment over time.

A. The Historical Origins of Harassment

As various scholars have argued, harassment is not principally about sexual desire, but rather a reflection of the distribution of power within the particular workplace and society more broadly.³² It is a form of social behavior that reflects the dominant group’s—in this case men’s—ability to exclude, marginalize, or dominate less powerful individuals within the workplace.³³ It can often function to undermine the competence and confidence of marginalized groups and interfere with work performance, while also setting the norm of what is accepted or acceptable behavior.³⁴ Even harassment that is motivated in whole or in part by sexual desire reflects the perpetrator’s power to impose his demands and desires on others who are poorly positioned to rebuff those demands without consequence.³⁵

Harassment therefore serves as a mirror for systemic hierarchy, within the microcosm of the workplace and within the culture and larger historical context of a nation. The subordination of women was a central feature of nineteenth and twentieth century law and work arrangements. Women lost their legal personhood upon marriage through a principle known as coverture, wherein they could only acquire property or sign contracts through the legal personhood of their husbands.³⁶ Women did not secure the constitutional right to vote until 1920.³⁷ Many factories in the early decades of the twentieth century were explicitly segregated by gender, with women and men working in separate departments at separate pay rates, eating in separate cafeterias, and even entering and exiting from different entrances or on separate schedules.³⁸ Until 1974, banks could deny loans and credit cards to married women unless their husbands co-signed the application.³⁹ The legal and social foundation of the United States is one where men have power over women, are superior in status, and are free to control them.

America’s history of slavery, segregation, and white supremacy is also inextricably intertwined with the history of work, which shapes the experiences of Black and other racialized women.⁴⁰ Slavery was in part a workplace hierarchy predicated on violence and white supremacy.⁴¹ Black women were chattel assets, whose purpose in the economy and social order was to labor and serve white slave masters and their families.⁴² White slave masters frequently raped them, bred them to produce more workers, and subjected them to physical and psychological terror to maintain control.⁴³ After slaves were emancipated, segregation became a workplace reality, with Black women being relegated to the most menial and low-wage jobs.⁴⁴ Title VII offered reform, but it did not fully dismantle job segregation and workplace hierarchies predicated on white privilege.⁴⁵

Immigrant workers in the United States have also faced shifting, yet persistent, forms of discrimination. Although immigrants in the nineteenth and early twentieth century received privileged treatment compared with Black workers,⁴⁶ there is a long history of discrimination and subordination of immigrant populations, particularly Latino and Asian Americans. These include, for example, the Chinese Exclusion Act⁴⁷ and the internment of Japanese Americans during World War II, which kept Asian women workers excluded, marginalized, and exploited.⁴⁸ Continued subordination of both Black and immigrant women is also evidenced by the exclusion of domestic and agricultural workers from the 1938 Fair Labor Standards Act and the 1935 National Labor Relations Act.⁴⁹ These positions are overwhelmingly occupied by immigrant women and Black women, and many are still excluded from these legal protections today, making them more vulnerable to discrimination and abuse. Further, while Title VII prohibits discrimination on the basis of national origin, employers are permitted to discriminate against workers on the basis of immigration status.⁵⁰

Workers who belong to more than one subordinated group—such as Black women, immigrant women of color, or Black immigrant women—face compounded marginalization, as Kimberlé Crenshaw originally argued in her landmark article on intersectionality.⁵¹ Such discrimination is also replete within the historical record, in which a combination of race and sex-based discrimination operated in tandem. For example, the legislative history of Title VII suggests “sex” was included as a protected category based in part on arguments that protecting race, but not sex, would give Black women an advantage over White women.⁵² Likewise, during debates in the 1970s over whether to finally include domestic workers in the federal minimum wage law, opponents painted the work itself—performed primarily by women of color—as undeserving of minimum wage, while the White housewives who employed them were depicted as unqualified to calculate wages and hours.⁵³

Throughout United States history, women and people of color have also been vastly underrepresented in Congress, as well as within state legislatures.⁵⁴ Underrepresentation of these groups as lawmakers—both now and historically—reinforce hierarchies and subordination over time, by affecting which types of bills get introduced and passed, and which end up on the cutting room floor. Representation can shape values, priorities, and debate around who is deemed worthy of protection, in what ways, and whether legal interventions are needed to reduce inequality. Men—specifically White men—are also markedly overrepresented in the judiciary, where the laws are enforced.⁵⁵ The life experiences and perspectives of the judiciary affects their approach to cases and the parties with whom they identify. Biases influenced by one’s social position can then get baked into precedent, which later constrains and influences subsequent rulings.⁵⁶ Thus, lack of representation in both legislatures and courts can facilitate and exacerbate gaps in the law, ultimately failing to provide accountability and leaving women workers vulnerable to exploitation and abuse.

B. The Current Landscape of Workplace Harassment

Current national statistics reflect the continued influence of these historical patterns of subordination. Hispanic women earn fifty-seven cents for every dollar earned by White, non-Hispanic men.⁵⁷ In 2020, Black women earned sixty-four cents for every dollar earned by White, non-Hispanic men.⁵⁸ Over time, this gap fuels income and wealth disparities; Black women are estimated to lose nearly one million dollars over the course of their careers.⁵⁹

Relatedly, broad societal hierarchies and unevenly distributed power within organizations also affect workplace culture, behavior, and policies.⁶⁰ Power can take many forms; however, economic power or lack thereof tends to be at the foundation. Thus, when one’s labor is devalued—as occurs most substantially with Black and Hispanic women wage gaps compared with White, non-Hispanic men—this fundamentally affects the bargaining power one has with respect to protecting themselves from harassment at work.⁶¹ Economic disparities in bargaining power are compounded by continuing racism and sexism in low-wage industries where women of color are overrepresented.⁶²

The EEOC has published a list of workplace conditions that increase the likelihood of harassment. The vast majority of the conditions noted are common features of low-wage industries.⁶³ For example, low-wage and precarious industries such as hospitality, food service, modeling, agriculture, construction, and custodial work often: (1) lack effective policies and procedures; (2) have minimal to no oversight; (3) require working in isolation; and (4) prioritize customer and client well-being over the worker.⁶⁴ It is thus unsurprising that the women working in these industries experience the highest rates of harassment, among other forms of workplace violence.⁶⁵ For example, surveys have found that 65% of casino workers reported unwanted touching by guests, while over half of restaurant workers reported sexual harassment as occurring on a weekly basis.⁶⁶ One casino worker described how the harassment was intertwined with her wages, stating that a guest wanted to “put the tip on [her] ass” and took back the tip when she refused.⁶⁷ Another worker, this time at a hotel, described having to jump over the beds to escape the room of a guest who exposed themselves to her while requesting shampoo.⁶⁸ COVID-19 has only worsened these rates; one nationwide study found that 78% of surveyed restaurant workers reported an increase in hostility and harassment as they enforced COVID-19-related policies.⁶⁹

Harrowing accounts of harassment are also extremely prevalent among domestic workers and farmworkers, who are among the least protected due to the working conditions and the historical factors discussed above. Studies have found that 48% of domestic workers have had clients expose themselves, while 80% of farmworkers have experienced some form of sexual violence while at work.⁷⁰ In many of these cases, low-wage workers’ bargaining power is further diminished by language barriers or distrust of government agencies due to immigration status.⁷¹

Gender and racial hierarchies also shape who has access to leadership positions that hold power in the workplace and in government. For example, women and people of color remain vastly underrepresented within business leadership ranks.⁷² These statistics remain stubbornly sticky despite nearly sixty years of anti-discrimination law under Title VII. Reviewing decades of national employment data, sociologists Kevin Stainback and Donald Tomaskovic-Devey found that Black men and women, as well as White women, made far fewer gains in managerial jobs than in professional jobs.⁷³ White men retained a disproportionate share of managerial jobs, which these authors attributed to continued White male advantage that led them to be “pushed up in organizational hierarchies.”⁷⁴

Women also face gender-based harassment even when they break social and historical norms and move up to the top of the power hierarchy. In these cases, social and historical hierarchies are disrupted, and men resist and engage in demeaning behaviors to restore the status quo. Sociologist Raewyn Connell might characterize the problem in terms of “hegemonic masculinity”—“practice[s] . . . that allowed men’s dominance over women to continue,” that “embod[y] the currently most honored way of being a man” and “requir[e] all other men to position themselves in relation to it,” and that “ideologically legitimat[e] the global subordination of women to men.”⁷⁵ This type of harassment is not necessarily sexual in nature and can consist of taunting, insubordination, and use of demeaning slurs and images. This is less discussed than the harassment that is driven by sexual desire and targets low-status women. However, at its core, it is driven by systemic power hierarchies that exploit women or justify their differential treatment, similar to other types of harassment.⁷⁶

A poignant example are the numerous accounts of workplace harassment in law enforcement and the military. In 2018, it was reported that almost 25% of women in active-duty military experienced sexual harassment while in the military.⁷⁷ For women veterans, the percentage who reported experiencing sexual harassment rises to 80%, suggesting underreporting may be a significant problem for the military.⁷⁸ One particularly horrifying example comes from a female Navy lieutenant. In 1992, she went public with a personal story of being sexually assaulted by “the gauntlet,” which was described as a “nightly, coordinated, and systematic sexual assault of women who found themselves on the third floor of the hotel.”⁷⁹ High rates of harassment are also commonplace in law enforcement. One nationally representative survey of law enforcement officers found that 71% of female law enforcement officers have experienced sexual harassment or sexual violence in the workplace.⁸⁰ These male-dominated environments are high-risk, as women are devalued and targeted for breaking gender stereotypes and hierarchies of power.

C. Harassment as a Workplace Hazard

Based on historical and current social realities, we argue that harassment is a workplace hazard that is disproportionately distributed to women—particularly low-wage workers and women of color—creating a health and safety issue with civil rights and economic justice issues at the core. As such, harassment is best suited to be addressed by a multi-layered hazard prevention model, such as the Swiss Cheese Model we proposed above.⁸¹

Harassment is a significant hazard to workers’ mental, physical, and economic safety following historical trends of gendered and racialized subordination. Studies show workplace harassment is associated with increased rates of (1) stress, (2) anxiety and depression, and (3) post-traumatic stress disorder (“PTSD”).⁸² This effect may be particularly pronounced for women of color as they are vulnerable to harassment on the basis of both race and gender.⁸³ All three of these mental health effects are risk factors for increased rates of suicidal ideation, which also links workplace harassment to increased rates of suicide.⁸⁴

Workplace harassment frequently occurs with, and may even precipitate, other forms of workplace violence.⁸⁵ Physical violence can occur in any workplace and among any type of worker, even women in leadership; but the risk for fatal violence is highest among sales, protective service, and transportation workers, while the risk for nonfatal violence resulting in days away from work is greatest for healthcare and social assistance workers.⁸⁶ For women working in low-wage industries, the economic harms associated with workplace harassment can be particularly devastating. Economic violence can take many forms such as constructive discharge or retaliation for reporting or opposing workplace harassment, and can occur via termination, demotion, pay cuts, wage theft, or detrimental changes to job terms and conditions such as scheduling.

The detrimental effects of harassment are dangerously cyclical, leaving victims at risk of remaining stuck in these cycles. Like other health and safety hazards, preventing harassment demand multifaceted interventions, and many gaps remain. In Section II, we identify these gaps before turning to our data, which we analyze to examine the effectiveness of the overall policy response post #MeToo.

II. Legal Constraints Fail to Provide Accountability

Title VII contains no reference to the word “harassment.” Harassment law is instead a product of regulatory and judicial interpretation of the statutory language stating it is unlawful for an employer “to discriminate . . . with respect to . . . conditions, or privileges of employment.”⁸⁷ Lower courts began to recognize racial, religious and sex-based harassment claims in the 1970s,⁸⁸ while the EEOC recognized sexual harassment as a form of discrimination in 1980.⁸⁹ The Supreme Court first solidified the cause of action in the 1986 decision, Meritor Savings Bank v. Vinson.⁹⁰ The foundation set forth in Meritor would be elaborated in subsequent Supreme Court rulings.⁹¹

In this Part, we discuss ten major limitations of harassment doctrine, which leave significant gaps and fail to protect many women who are subjected to harassment at work. If the laws are ineffective, this leaves many victims without remedy, while also failing to deter future harassment due to the lack of accountability, weak enforcement of existing law, and restricted access to justice. In Part III, we examine whether the flurry of state reforms during the height of the #MeToo movement began to acknowledge and address these gaps to meaningfully improve protection for working women. In the absence of federal reform, state reform serves as both a laboratory of innovation as well as a way to gauge bipartisan support.

A. The Individuation of Harassment Evidence

As early as 1986 in Meritor v. Vinson, the Supreme Court imposed a compartmentalized frame on harassment cases, treating it as a matter of individual offenders and targeted victims as opposed to broader systemic harms in an organization. Meritor v. Vinson was brought by a Black woman, Mechelle Vinson, against her bank employer. Vinson was subject to sexual advances and repeated demands for sexual favors, fondled in front of other workers, followed to the restroom, and forcibly raped on several occasions by the bank vice president.⁹² The bank had a grievance procedure, but it would have required Vinson to report the misconduct to her supervisor—the perpetrator of the harassment.⁹³

From the outset, the Court failed to assess Vinson’s story comprehensively. It treated her harassment as an isolated circumstance and refused to consider the evidence of harassment other women at the bank were experiencing alongside Vinson as relevant to the question of whether the harasser cultivated an environment that violates Title VII.⁹⁴ This was despite the lower court’s holding that even where a woman is not the object of harassment herself, there may be a valid Title VII claim if the atmosphere fostered pervasive harassment. Instead, Justice Rehnquist concluded that the District Court did not allow the presentation of a “wholesale evidence of a pattern and practice relating to sexual advances to other female employees in her case in chief.”⁹⁵

This blinkered view of harassment is at odds with the concept of a hostile work environment, which can pervade and impact the workplace beyond one individual victim. The Court’s individualized approach also represents a marked departure from other claims available under Title VII. As early as the 1971 case of Griggs v. Dukes, the Court acknowledged that discrimination can operate systemically within a workplace and therefore permitted a wide variety of evidence from multiple sources.⁹⁶ In these Title VII discrimination cases, including “disparate impact,” “pattern or practice,” or “systemic” cases, the law acknowledges group offenses, even if individual experiences of discrimination vary and are effectuated by multiple actors and systems within an organization.⁹⁷ Consequently, the Court does not begin from the presumption that discrimination is limited to a single bad actor within the organization who has engaged in misconduct targeting a single individual.

Courts further compound the individuation of harassment claims through the routine enforcement of settlement and severance agreements containing non-disclosure provisions.⁹⁸ Such non-disclosure provisions conceal harassment, making it difficult to detect and root out patterns of abuse.⁹⁹ Settlement agreements commonly include non-disclosure provisions, and employers and their counsel often refuse to settle a case without some form of confidentiality provision. While some victims may want confidentiality,¹⁰⁰ this requirement often pressures victims to sign and remain silent in order to achieve some type of closure. This manner in which non-disclosure provisions are included in settlement agreements serves to limit collective grievances, opportunities to negotiate, and accountability for repeat perpetrators and organizations that foster hostile work environments.

B. Mandatory Arbitration Provisions

Access to legal justice under Title VII has also historically been barred for many workers by mandatory arbitration provisions. Approximately 56% of non-union private sector workers are required to sign mandatory private arbitration agreements,¹⁰¹ which represents roughly sixty million American workers.¹⁰² Of those, 30% have signed agreements that include class-action waivers.¹⁰³ Arbitration agreements have become particularly prevalent since the 2011 Supreme Court ruling, AT&T v. Concepcion, which enabled companies to enforce class and collective action waivers through arbitration.¹⁰⁴ Arbitration agreements divert claims from the public court system to private arbitration, in which neither the filings, rulings, nor proceedings are open to the public.¹⁰⁵ Even if the arbitration agreement does not require the victim to maintain the secrecy of the proceedings, arbitration is to a much greater extent shielded from public view, including media coverage and scholarly research.

Arbitration often offers poor remedies for the plaintiffs. When the arbitration agreement includes a class action waiver, the employee cannot file a collective claim in court or in arbitration, forcing them to bring an individual claim no matter the fact pattern.¹⁰⁶ Arbitration also offers few avenues for appeal, leaving workers little recourse if the arbitrator issues a bad ruling. Arbitration can further inhibit access to justice because claimants then have difficulty finding a lawyer willing to file a claim in arbitration when the deck is so heavily stacked against them. Research shows women of color are more likely to be denied access to courts than White women, due to mandatory arbitration.¹⁰⁷ This is because of the particular prevalence of these clauses in low-wage industries where women of color are overrepresented.¹⁰⁸ Thus, low-wage workers, who are already uniquely vulnerable to workplace violations including harassment and retaliation, suffer the most from contracts restricting their ability to access a court of law.

C. Coverage Gaps Constrain Workers’ Access to Courts

Many workers are not covered by key antidiscrimination and labor law statutes, leaving them with no legal recourse regardless of the merits of the claim. Title VII only covers claims against “employers,” and by extension claims brought by “employees.”¹⁰⁹ This coverage restriction means that independent contractors lack any form of protection under Title VII. Independent contractors make up over a third of the nation’s workforce,¹¹⁰ and almost half of these unprotected independent contractors are women.¹¹¹ Many of these are low-paid jobs in industries such as personal services, transportation, and educational services.¹¹² Women of color frequently land in these jobs due to the low barriers to entry, discrimination in other parts of the labor market, and the need for supplemental income.¹¹³ Research has shown that women and people of color are also overrepresented in most industries that tend to misclassify their workers as independent contractors.¹¹⁴

Title VII also largely excludes the most physically vulnerable low-wage workers from protection—often immigrants and women of color. For example, domestic workers who serve as housekeepers, nannies, babysitters, or home health care aides are often excluded from coverage if they are employed directly by individuals rather than agencies, as those individuals generally do not employ more than fifteen employees.¹¹⁵ This means that women like live-in worker, Etelbina Hauser, report having nowhere to turn for legal protection despite being “consistently groped” and pressured for “sexual services.”¹¹⁶ Domestic workers are often physically isolated from other workers, which further removes sources of social support and solidarity that might otherwise facilitate internal complaints and remediation. The physical isolation of private homes also tends to limit transparency and oversight of workplace practices. Thus, it is no surprise that studies indicate one-third of domestic workers face gender, race, language, or immigration-based abuse.¹¹⁷

Undocumented workers are nominally covered by Title VII,¹¹⁸ but the law does not prohibit workers from being fired—or deported—for their immigration status.¹¹⁹ These workers are also unlikely to be awarded back pay due to their immigration status, which reduces the legal risk for employers.¹²⁰ Immigrant workers make up a majority of the workforce in specific industries, including agricultural work.¹²¹ In these cases, the threat of termination or deportation largely cuts off any meaningful access to justice and makes them particularly vulnerable targets for harassment.

Coverage gaps that predominantly affect women of color and immigrants are no historical accident.¹²² As previously discussed, occupations in which women of color and immigrants predominated were intentionally excluded from landmark federal employment legislation in the twentieth century.¹²³ Employers have continued to treat women of color both as invisible and as their labor to control. Roles like nannies and maids are disproportionately held by immigrant women of color, traditionally employed in private homes of the mostly White middle- and upper-class, where a lack of transparency and adequate oversight gives employers the liberty to take advantage of these workers.¹²⁴

D. Retaliation Law and Its Effect on Underreporting

The legal standard for Title VII retaliation claims, which requires the plaintiffs to show that the retaliatory conduct was “materially adverse,” fails to deter low-level and informal retaliation.¹²⁵ Most courts find neither ostracizing nor harassing conduct to rise to the level of an adverse employment action for purposes of a retaliation claim under Title VII.¹²⁶ They construe the harm as not significant enough to deter someone from filing a charge.¹²⁷ Courts have even held that a negative performance review is not sufficiently “material” to support a retaliation claim.¹²⁸ And, as previously noted, judges with lifetime or fixed-term appointments may not recognize the threat that would deter a reasonable worker who lacks such security. One study, for example, revealed that many of the employment actions courts have held not “materially adverse” would actually dissuade participants from reporting.¹²⁹

The threat of retaliation can be a particularly powerful deterrent for marginalized populations.¹³⁰ Underrepresented groups within a particular workplace—such as women in non-traditional occupations, or women of color in majority White occupations—have less access to internal social networks and political capital within the workplace, which both increases the likelihood and the detrimental effect of informal social sanctions. The fear of job loss and unemployment for a low-wage worker can be so economically threatening to the employee’s livelihood that it deters them from reporting even extreme misconduct. Concerns about retaliatory deportation can weigh even more heavily on an employee’s decision-making. Moreover, even where actual retaliation is absent, workplace culture that fosters the threat of retaliation alone can deter victims from reporting.

Fears about retaliation for at-will employees who complain about harassment are particularly well-founded, despite whatever assurances human resources may provide about the company’s policy regarding retaliation. Even though retaliation for speaking up against harassment and discrimination is prohibited by law, it is a common workplace reality.¹³¹ Complainants may face formal action, such as termination, demotion, or pay cuts, as well as informal social sanctions. These repercussions originate not only from the perpetrator, but also from co-workers or supervisors who side with the perpetrator or perceive the complaint as disruptive. Studies have demonstrated that these negative consequences, such as being ostracized by coworkers, more often than not follow harassment reports.

E. Rigid Administrative Exhaustion Requirements Block Access to Justice

Title VII’s administrative filing requirement imposes a notably short time window—less than a year—for the plaintiffs to bring a harassment claim. Before Title VII claimants can file a lawsuit against an employer, they must file an administrative claim with the EEOC within 180 days of the last occurrence of harassment.¹³² Any lawsuit brought by an employee that has failed to timely file an administrative claim will be dismissed for failing to exhaust administrative remedies. This aggressive window can be unrealistic for traumatized workers who may be afraid to speak up about harassment or who may not recognize that the workplace harms they suffered qualified as unlawful harassment until years later. The narrow administrative filing window can be particularly detrimental for the vulnerable workers previously described, who may be concerned about retaliation and job loss.

These workers might reasonably choose job security over the possibility of a lawsuit, such that they may not be ready to file a legal claim until they have secured adequate support or alternate employment. Moreover, gaps in access to legal services and information often preclude workers from even knowing about the administrative filing requirement.

F. Severe or Pervasive Requirement Excludes Strong Claims

To prove harassment under Title VII, the plaintiffs must show that they were subject to unwelcome comments or conduct on the basis of a protected category (race, sex, religion, color, or national origin) that was so “severe or pervasive” as to alter the conditions of the plaintiffs’ employment and create a “hostile or abusive work environment.”¹³³ The “severe or pervasive” language originated in Meritor, although the court did not initially define the term.¹³⁴ In a subsequent 1993 ruling, Harris v. Forklift, the Supreme Court elaborated on the meaning of the phrase by listing several non-exhaustive factors that affect whether conduct is deemed severe or persuasive: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether is the conduct is physically threatening, humiliating, or “a mere offensive utterance”; and (4) whether the conduct unreasonably interferes with work performance.¹³⁵

As several commentators have observed, the “severe or pervasive” requirement has evolved to impose a very high burden of proof on the victim.¹³⁶ For example, lower courts have inconsistently and often improperly interpreted the type of conduct necessary for a violation. In some courts, the standard has been deemed so high that it may reject claims for conduct that may be egregious, offensive, and in some cases even criminal.¹³⁷ This significantly impacts outcomes of cases, as the “severe or pervasive” requirement has become a common basis on which courts grant summary judgment against the plaintiffs. Judges have ruled that things like indecent exposure, being threatened and referred to as a Black bi[***], and being offered pornography by one’s boss, are not sufficiently severe or pervasive, thus dismissing the cases on summary judgement.¹³⁸ This leaves the plaintiff demoralized and without remedy and allows the employer to shield itself from accountability.¹³⁹

Other lower courts have misinterpreted the Harris v. Forklift opinion to require that conduct be “severe, frequent and physically threatening,” effectively requiring severe and pervasive conduct that is also physical in nature.¹⁴⁰ In McGraw v. Wyeth-Ayerst Laboratories, for example, the court held that repeated propositions, yelling, and non-consensual kissing by a supervisor was neither severe nor pervasive.¹⁴¹ Extreme lower court rulings can have a lasting effect, as courts later rely on those fact patterns and judicial interpretations to justify outcomes in favor of employers in subsequent cases.¹⁴²

G. The “Objectively” Hostile or Abusive Standard is Out of Touch

Closely related to the “severe or pervasive” requirement is the requirement that the working environment be both “subjectively” and “objectively” hostile or abusive. This means that the plaintiff perceived the conduct as hostile or abusive, and that a “reasonable person” in that situation would have found it hostile or abusive.¹⁴³

Defining reasonableness has proven difficult as courts appear to lack a clear standard.¹⁴⁴ In a 1998 case, Oncale v. Sundowner Offshore Services, Inc., the Court further noted that ensuring whether or not something is objectively hostile or abusive is crucial to “ensure that courts and juries do not mistake ordinary socializing in the workplace . . . for discriminatory ‘conditions of employment.’ ”¹⁴⁵ Here, the Supreme Court clarified that determining severity “requires careful consideration of the social context in which particular behavior occurs.”¹⁴⁶

The “objective” component of the hostile or abusive standard has also proven problematic. In the summary judgment context, judges superimpose or extrapolate from their own experiences when deciding what a “reasonable person” would consider hostile and abusive.¹⁴⁷ Yet, the judge’s own assumptions about tolerable behavior can be tainted by white and male privilege in ways they may not recognize. As previously discussed, the pervasive influence of hegemonic masculinity can lead judges to discount hostile aspects of the work environment simply because they are commonplace or fit within traditional workplace norms.¹⁴⁸

For example, in Oncale, Justice Scalia recounted a variety of workplace behaviors that he considered inoffensive, such as a football player being smacked on the buttocks by his coach—which very well could be experienced as hostile.¹⁴⁹ However, when courts—and juries—are instructed to ignore the plaintiff’s actual (subjective) experience and focus on what a hypothesized “reasonable” (objective) other would consider harassment, it is an implicit invitation to default to a framework wherein workplace culture is largely defined by and governed by White men.¹⁵⁰

Broader representation in the judiciary may begin to address this bias. In other research, we have found that there is a significant disconnect between judges’ assessments of what is “objectively” abusive and hostile and a layperson’s assessment, which may mean that judges are disconnected from social realities and evolving social norms.¹⁵¹ However, bias does not only impact judges. Racialized and sex stereotypes can also color perceptions of witnesses, fact finders, and others, clouding their view whether the plaintiff contributed to the harassment, the extent to which they feel the plaintiff is harmed by the perpetrator, and whether enduring the conduct is deemed acceptable and within the realm of their role as worker.¹⁵²

H. The Standard for Vicarious Liability

As a general matter, when an employee commits a Title VII violation, the law imposes strict liability.¹⁵³ For example, when an employee engages in sex-based discrimination or retaliates against an employee for speaking out about it, courts do not inquire whether the employer should be held vicariously liable for the conduct. Employers are simply liable for the violation. Harassment, however, is the exception. In Meritor, the Supreme Court first raised the question of whether there might be some circumstances in which employers might not be held vicariously liable for harassment.¹⁵⁴ This question was settled in two 1998 cases decided together, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton (“Faragher/Ellerth”).¹⁵⁵ In these two cases, the Supreme Court imported tort principles into the employment discrimination context. The majority opinions held that employers would only be held strictly liable for harassment committed by a supervisor when the plaintiff experienced a tangible employment action, such as a demotion, firing, or pay cut.¹⁵⁶ The Court also imposed a negligence standard when coworkers were responsible for harassment. Under this rule, employers would only be held liable for harassment that they knew or should have known about, and they failed to take action to correct it.¹⁵⁷

In cases involving supervisory harassment, in which the plaintiff suffered no tangible employment action, the Court created a new affirmative defense for employers. Even when a plaintiff proves a successful harassment case—which is an uphill battle due to the constraints discussed in this section—the employer can assert an affirmative defense to evade liability. Joanna Grossman argued that the defense effectively insulates employers from liability following an initial complaint about harassment.¹⁵⁸ To assert the defense, an employer must show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise” (the “Faragher/Ellerth defense”).¹⁵⁹

Beyond the exceptional nature of the Court’s departure from a strict liability framework, courts have also interpreted the Faragher/Ellerth defense in an expansive manner, favoring employers. In many cases, courts merely require employers to maintain anti-harassment and complaint policies, without inquiring into the effectiveness or reviewing the culture broadly.¹⁶⁰ This trend of “judicial deference” is largely why anti-harassment policies and practices have proliferated in the workplace, many of which have been found to be ineffective at curbing harassment.¹⁶¹

Likewise, the Faragher/Ellerth defense directs the blame for a hostile work environment on a plaintiff who was slow or reluctant to complain internally, rather than on the perpetrator or the employer. However, high rates of retaliation give many employees a valid reason to pause when reporting harassment or otherwise using grievance procedures.¹⁶² Only one in four women subjected to sex-based harassment reported it using an internal grievance procedure; even fewer filed a charge with the EEOC.¹⁶³ At present, it is possible for a plaintiff to file a hostile work environment claim, and, despite evidence to her benefit, lose merely because she herself failed to utilize the internal grievance procedures created by the employer.¹⁶⁴

I. Damage Caps Fail to Remedy Harms

The remedies available in Title VII cases include injunctive relief, reinstatement,¹⁶⁵ back pay, compensatory damages, punitive damages, and attorneys’ fees and costs.¹⁶⁶ Compensatory damages—that is, damages for pain and suffering—are subject to a statutory cap according to employer size.¹⁶⁷ For employers with fewer than one hundred employees, compensatory and punitive damages cannot exceed $50 thousand; for two hundred or fewer employees, the cap is $100 thousand; for five hundred or fewer, the cap is $200 thousand; and for five hundred employees or more, the cap is $300 thousand.¹⁶⁸

Damage caps for compensatory and punitive damages can be particularly harmful in harassment cases when devastating psychological effects are common.¹⁶⁹ Such effects can include suffering from depression, anxiety, stress, post-traumatic stress disorder, suicidal ideations, and adjustment disorders, among others.¹⁷⁰ One study found that nurses who experience sexual harassment are three to eight times more likely to suffer from depression than women who were not harassed.¹⁷¹ These negative mental health outcomes have also been shown to have profound impact on long-term job-related outcomes, including lack of initiative, lower job satisfaction, increased propensity to leave, and financial problems.¹⁷²

In addition, other forms of available relief may not be especially meaningful in harassment cases. Although some employees quit or are fired in connection with workplace harassment, many harassment victims continue to work throughout the abuse, making them ineligible for back pay. Ironically, staying longer and enduring more prolonged harassment and abuse may end up resulting in lower damages. This is particularly problematic for low-wage workers who are economically vulnerable and cannot afford to quit their jobs. Conversely, if the employee was terminated, reinstatement may not be a useful remedy, as the plaintiff may be reluctant to return to an abusive workplace. Compensatory and punitive damages, along with attorneys’ fees and costs, may be the most important forms of relief available to harassment claimants. Yet, damage caps force courts and juries to limit relief to the plaintiffs to whom they might have made a much larger award to compensate for pain and suffering and to punish the employer for maintaining a hostile work environment.¹⁷³

Damage caps also limit access to justice. Because many plaintiff-side lawyers operate on contingency fees, a harassment claimant suing a small or even mid-size employer may have difficulty finding a lawyer willing to sue when the maximum recovery is less than $100 thousand. The effect of damage caps can be especially pronounced for low-wage workers, women of color, and immigrant workers engaged in domestic work or agricultural labor. When the size of recoverable wages is low due to a low base wage, plaintiffs are even more reliant on compensatory and punitive damages to attract the interest of a potential lawyer. Domestic workers, agricultural workers, and even restaurant and food-service workers may find themselves on the low end of the damage caps because they work for smaller operations. In such cases, a worker’s ability to find legal representation may ultimately depend on whether they can allege a separate tort or statutory claim not subject to the damage caps or whether they live in a state that offers more generous discrimination remedies under state law.

Damage caps also reduce deterrent effects on delinquent employers.¹⁷⁴ With minimal penalties, many employers are disincentivized to improve their responses to sexual misconduct in the workplace or to change workplace culture. Once again, vulnerable workers are doubly cursed—their employers know that their workers may not be covered by the statute, and even if they are covered, they may not find an attorney or recover very much. Facing little prospect of a big-ticket lawsuit, employers in these industries can turn a blind eye to harassment with little fear of accountability.

J. Implied Hierarchy of Harassment Claims

Even prior to the #MeToo movement, the dominant narrative surrounding workplace harassment involved a subordinate White woman subjected to unwelcome sexual conduct or requests for sexual favors by a high-ranking White man. This scenario, for example, commonly appeared in early harassment training from the 1980s and 1990s.¹⁷⁵ It was also, to some extent, reflected in the earliest EEOC regulations, which defined harassment in terms of sexual conduct and specifically referenced “quid pro quo” harassment, in which a supervisor requests sexual favors in exchange for some workplace benefit or the avoidance of harm.¹⁷⁶

This frame was not, however, compelled by the case law,¹⁷⁷ and it operates to the disadvantage of all other harassment claims that do not involve sexual conduct or that are brought on the basis of other protected classes. Intersectional claims brought on the basis of more than one protected category—often women of color experiencing racism and sexism—are at particular disadvantage.

Nowhere in the case law does the Supreme Court assert that sexual conduct forms a necessary part of a harassment claim or that certain protected classes are more deserving of relief than others.¹⁷⁸ Nevertheless, the narrative of harassment as primarily a problem of sexual misconduct toward White women has had a measurable effect on lower court jurisprudence over time. This effect is well-documented in scholarly literature. Indeed, Pat Chew and Robert Kelly’s empirical study of harassment claims concluded that judges tend to discount race-based harassment claims.¹⁷⁹ Women of color pursuing litigation are further marginalized due to the courts’ pressure to separate out experiences of harassment into the false dichotomy of “Because of Race” or “Because of Sex,” when these are commonly intertwined.¹⁸⁰ Empirical research has found that plaintiffs bringing intersectional claims are less than half as likely as plaintiffs bringing single claims to win their cases.¹⁸¹ Even within those statistics, Black women are more likely to lose their cases than Black men who bring intersectional claims, such as those based on both race and age.¹⁸²

In summary, harassment law is subject to a variety of gaps that enabled workplace harassment to continue in the decades leading up to the #MeToo movement. Next, we turn to the question of whether the many legislative reforms wrought by the #MeToo movement addressed these gaps.

III. An Empirical Analysis of State and Federal Gender Equity Legislative Activity, 2016–2022

In previous scholarship, we discussed the ability of social movements to promote legal change.¹⁸³ While the window of opportunity may be small, #MeToo, like the mass Black Lives Matter protests during the summer of 2020, has the potential to generate staying power and remain influential on legal policy.¹⁸⁴ This is especially true if lawmakers, courts, and agencies follow the lead of workers who have been organizing for harassment-free workplaces long before #MeToo.¹⁸⁵ Doing so will provide stakeholders an appropriate goalpost that they can measure their efforts against as they attempt to mitigate workplace harassment.

This Article builds on prior work that has begun to investigate the legal implications of #MeToo, but does so with an emphasis on empirical analysis.¹⁸⁶ The questions we explore include: (1) Has #MeToo effectively shifted the law forward in addition to raising awareness and sparking debate? (2) What topics were centered in bills versus introduced as secondary topics within proposed legislation? (3) To what extent did political factors such as state party lines and representation of women lawmakers influence the volume of bills introduced and passed? (4) To what extent did legislators take a comprehensive versus a narrow approach to workplace harassment?

A. Methodology

To examine the actual and potential policy changes following #MeToo, our research team collected a corpus of 3,916 state bills¹⁸⁷ and 255 federal bills relating to workplace gender equity, discrimination, and harassment that were introduced between 2016 and 2022. The corpus was collected through a legislative search of Legiscan, NexisUni, and Westlaw using seventy-five different search terms intended to identify relevant legislation.¹⁸⁸

The search terms were generated to identify a broad range of workplace gender equity legislation rather than more narrowly-focused harassment bills for several reasons. As articulated in Part II, harassment is a complex systemic problem stemming from a variety of social, political, and cultural factors. To the extent legislation helps to address the underlying inequity—such as pay equity—the intervention may ultimately help to reduce harassment indirectly over time.¹⁸⁹ We therefore sought to capture the full range of legislative interventions to enable us to evaluate them collectively. Taking a broader approach to harassment reform also allows us to identify patterns in and across legislative bills, including the extent to which the bills are: (a) individualized, offering siloed remedies for individual cases; (b) institutionalized, delegating responsibility to employer training, policy or practices; or (c) systemic, which are broader in scope and affecting many workers across industries.

The initial corpus contained a substantial number of duplicative bills, typically as a result of near-identical legislation that was introduced separately in both the House of Representatives and the Senate of a particular state legislature. Potential duplicates were flagged manually based on similar or identical bill names, numbers, or descriptions. The textual similarity of potential duplicates were then assessed using the “compare” function in Adobe Acrobat Pro, which counts and highlights all textual differences. Pairs of bills where 80% or more of the text was identical were deemed duplicates, and one copy of the duplicate bill was discarded for the substantive coding and quantitative analysis. The final corpus analyzed herein contained 3,012 state bills and 255 federal bills (“Legislative Corpus”).

We then coded for the substantive topic of the bills pulled into our dataset through the criteria listed in Table 1.¹⁹⁰ Bills fell into one of eleven topic groups, as defined below.

Table 1. State Legislative Topics
Topic	Definition
Transparency	Bills that implement new reporting or recordkeeping on employers regarding harassment or assault, or that restrict the use of non-disclosure provisions in employment contracts or settlement agreements.
Government Officials & Contracts	Bills that regulate the conduct of government officials, lobbyists or government contractors, such as requirements that legislatures adopt harassment policies for members; prohibiting public funds from being used to settle harassment claims; or requiring state contractors to adopt certain employment practices.
Anti-Harassment Practices	Bills that require some or all employers to adopt anti-harassment practices, such as training, policies, notices, or procedures to investigate harassment. Also includes bills that extend unemployment benefits to employees who quit due to harassment.
Anti-Discrimination Law	Bills that extend or expand anti-discrimination protections, such as expanding coverage or adding new protected categories such as sexual orientation, family status, marital status, or victims of domestic violence.
Leave	Bills that mandate paid or unpaid leave or that provide for accommodation for pregnant or nursing mothers.
Pay Equity	Bills that alter legal rules, hiring practices, or compensation practices relating to pay disparities or withholding of promotion or opportunities on the basis of sex, such as equal pay laws, prohibitions on requesting salary history, protection for pay discussions in the workplace, or mandatory pay disclosures.
Occupational	Bills that expand or create legal protections for sectors or occupations that predominantly employ women such as domestic work, hospitality, hotels, and janitorial services.

Enforcement	Bills that alter or expand legal rules or remedies relating to harassment, discrimination, leave/accommodation, equal pay, non-disclosure agreements, private arbitration, or workplace bullying.
Mandatory Arbitration	Bills that attempt to alter the enforceability of private arbitration provisions in employment contracts.
Equal Rights Amendment	Bills that ratify or pass the Equal Rights Amendment.
Other^a	Bills that do not fit into the above categories, many of which are symbolic in nature, such as designating “Equal Pay Day,” establishing commissions or reports. Also includes laws regarding vocational training in non-traditional occupations, and gender diversity in boards of directors.

Note: ^a The bulk of the “Other” category consists of bills that engage with harassment or gender equity symbolically rather than substantively. Examples include bills that create Days or Months to honor gender inequities that other bills in the dataset are seeking to redress. Other bills considered symbolic are those that commission Task Forces or Studies on harassment or gender equity reform more broadly. The rest of the “Other” category were outliers such as grants or vocational training for women in “High-Wage, High-Demand” jobs, regulation on law enforcement and military, and bills requiring the appointment and disclosure of women on boards.

Each bill summary was reviewed and coded by a member of our five-person research team, which included four researchers with a J.D. and an economics Ph.D. fellow. Where the summary was not sufficient to code the bill into one of the above-listed categories, the researcher reviewed the full text of the bill. Bills that fell outside the scope of the study—such as laws relating to cyberbullying, rape kits, or “street harassment”—were removed from the Legislative Corpus.

Many of the bills in the Legislative Corpus were “bundled,” that is, they sometimes included a variety of separate measures.¹⁹¹ Where a given bill covered more than one of the relevant topics, it was coded using a “primary” topic and any additional topics received a “secondary” classification. For example in 2019, the Connecticut legislature introduced a bill that would amend multiple statutes to establish “economic equality for women,” including by requiring equal pay for equal work, increasing the minimum wage, requiring paid family and medical leave, and requiring annual anti-harassment training for companies with fewer than twenty employees among others.¹⁹² Thus, while this bill was coded primarily as a Pay Equity bill, it also was secondarily classified under Anti-Harassment Practices, Leave, and others.

Where bills presented a close case regarding the applicable category, members of the team discussed the bill and made a final decision. Coding decisions were also cross-checked using keyword searches within the Legislative Corpus specific to each subcategory.¹⁹³ Keyword searches within the Legislative Corpus were also used to populate subcategories of bills within the “Enforcement” category relating to harassment law reforms.¹⁹⁴

B. Volume of Gender Equity Legislation Post #MeToo

Federal Reforms

The #MeToo movement produced few legislative successes at the federal level between 2016 and 2022. Although many bills were introduced, few of them passed. By contrast, there has been a massive wave of #MeToo-related legislation at the state level. This flurry of legislative activity took place in statehouses across the country and continued for a sustained period—extending throughout 2022.

In the U.S. Congress, from 2016 to 2022, 255 bills were introduced relating to sexual harassment, sexual assault, and gender equity in employment.¹⁹⁵ There was a sharp rise in bills between 2016 and 2017, from twenty to fifty-nine. Congress continued to introduce legislation at a high rate in 2018 and 2019—reaching thirty-eight bills in 2019. Proposed legislation then dropped sharply in 2020, with five bills introduced that year.

Figure 2. Federal Gender Equity Bills (2016–2022)

At the federal level, only six #MeToo related bills passed during the sample period, and three of those bills are very limited in scope. The most wide-reaching bill was the Ending Force Arbitration of Sexual Assault and Sexual Harassment Act of 2021, discussed in greater detail in Part V.E.¹⁹⁶ In 2022, Congress also passed the Speak Out Act of 2022, which limits the enforceability of non-disclosure and non-disparagement clauses relating to sexual harassment and assault.¹⁹⁷ Another substantive change came from the National Defense Authorization Act for Fiscal Year 2022, which created additional reporting requirements for sexual harassment in the military—an industry at high risk of workplace harassment, among other forms of workplace violence.¹⁹⁸

The remaining laws that passed at the federal level were quite limited in scope. Two such bills related to lawmakers themselves: one mandates anti-harassment training for Senators and Senate employees¹⁹⁹ and the other makes lawmakers financially liable for harassment settlements.²⁰⁰ A third

bill was symbolic in nature, designating April as National Sexual Assault Awareness and Prevention Month.²⁰¹

State Reforms

As aforementioned, the vast majority of harassment and gender equity legislation was introduced and passed by state legislatures rather than Congress. We will begin the state legislation analysis by looking at state-specific and political trends in introduction and passage rates of gender equity bills between 2016 and 2022. We will then take a closer look at the potential for bipartisan support of gender equity bills before moving to topical analysis; there, our goal is primarily to examine how well legislation has been able to fill the gaps in legal protection that leave so many workers vulnerable to harassment and other gender-based workplace harm.

i. General Trends

Broadly speaking, states introduced—and passed—a large number of #MeToo related bills between 2016 and 2022. Since 2016, states introduced approximately 3,000 such bills, of which 382 passed—a passage rate of 12.7%. As Figure 3 illustrates, some amount of gender-related legislative activity predated the viral spread of the #MeToo movement in 2017, with 244 relevant bills introduced in 2016, though only 19 such bills passed. The volume of #MeToo related legislation nearly doubled between 2016 and 2017, with 427 bills introduced, of which 42 passed. Legislative activity continued to rise year over year even after the extensive media coverage faded, peaking in 2019 at 715 bills introduced, of which 96 passed. Legislative activity was somewhat lower between 2020 and 2022 but remained above the 2016 baseline level. These trends suggest that the legislative momentum of the #MeToo movement continued for several years.

Figure 3. State Gender Equity Bills (2016–2022)

There was substantial variation between states in the volume of legislation introduced, as illustrated in Figure 4. The most active state legislatures were New York (340 bills), followed by New Jersey (208 bills), Mississippi (151 bills), California (113 bills), Illinois (112 bills), and West Virginia (112 bills). Other states with a relatively high volumes of legislative activity were not confined to consistently Democratic “blue” states,²⁰² and included “swing”²⁰³ and Republican leading states, including Virginia, Michigan, Minnesota, Pennsylvania, Texas, Hawaii, and Missouri.

However, the states with very little legislative activity—those that introduced ten or fewer #MeToo related bills between 2016 and 2022—were “red” states: Arkansas (four bills), South Dakota (six bills), North Dakota (seven bills), Montana (seven bills), Idaho (nine bills), and Wyoming (ten bills). Nevertheless, the sustained engagement of most states in #MeToo legislation suggests that there was more sustained legislative interest and energy around #MeToo-related gender equity reform than the partisan gridlock in Congress would suggest.

Figure 4 also highlights the years in which bills were introduced in each state, indicated by color within each bar. Although each state had more legislative activity in some years than others, they generally depict some legislative activity during each year in the sample period. This further suggests sustained legislative activity over time, not just across states writ large, but within each state.

The states that passed the most #MeToo related bills were similar—but not identical—to those that introduced the most #MeToo related legislation, with California in the lead (seventy-three bills), followed by Illinois (thirty-one bills), New York (twenty-seven bills), Washington (twenty-five bills), New Jersey (seventeen bills), Virginia and Maryland (fifteen bills each), Nevada (thirteen bills), then Louisiana, Oregon, and Maine (twelve bills each).²⁰⁴

Although blue states dominate the list, the most prolific bill-passing states also included a solidly red state (Louisiana), and two swing states (Nevada and Virginia). The group of states that passed between five and ten bills also included a handful of swing or red states, including Pennsylvania, Texas, Arizona, Tennessee, and Kentucky, each of which passed five bills. Ten states failed to pass any #MeToo bills. Of these, seven were red states, and three were swing states.²⁰⁵ In other words, the volume of bills passed in any given state is somewhat more reflective of the partisan divides between red states and blue states than the volume of bills introduced.

Figure 4. Bills Introduced by State (2016–2022)^a

Note: ^a Only states with at least 20 introduced bills were included in Figure 4.

Figure 5. Bills Passed by State (2016–2022)^a

Note: ^a Only states that passed at least one bill were included Figure 5.

C. Political Trends in Gender Equity Legislation Post #MeToo

Now that we have a sense of the general landscape with respect to state legislation post #MeToo, we can take a closer look at the political trends. While all states introduced some harassment and gender equity reform legislation, there are trends in region, party, and even representation of women in legislatures, that provide information about who is leading the charge with respect to introducing and passing legislation that produces effective change.

Political Party

Figure 6 presents a more direct breakdown of the relationship between partisanship and #MeToo legislation. Throughout much of the sample period, more #MeToo-related bills were introduced in Republican-led legislatures, relative to Democrat-led legislatures.²⁰⁶ However, Democratic legislatures passed far more bills than Republican-led legislatures by a margin of 3.6 to 1. These results suggest that there was substantial legislative interest in #MeToo related topics in both Republican and Democratic state legislatures—and perhaps even a greater level of experimentation in Republican legislatures—but far less momentum to pass those bills in Republican states.

Figure 6. Bills Introduced and Passed by Party Majority and Year

a. Introduced bills

b. Passed bills

Note: ^aThis figure does not include seven laws introduced in Alaska that had “N/A” for party majority

Representation of Women Lawmakers

Part I discussed the historical exclusion and underrepresentation of women and racialized minorities in the lawmaking process. From 2016 to 2021, as the conversation around #MeToo and gender equity broadened, the percentage of women in state legislatures grew to record numbers in many states.²⁰⁷

Figure 7. Percent of State Legislators Who Are Women, 2012–2021

We next analyzed the relationship between the average representation of women in each state legislature from 2016 to 2022, and the volume of gender equity legislation the state passed during that same period. The results suggest that states with more women lawmakers tended to pass more gender equity legislation in the years following #MeToo than states with fewer women lawmakers.²⁰⁸

Most states tended to cluster together along party lines. For example, traditionally red states including West Virginia, Wyoming, Alabama, and South Carolina had state legislatures with less than 20% of women lawmakers and also passed less than ten gender equity bills between 2016 and 2022. By contrast, Democratic strongholds such as Illinois, New York, and Washington had legislatures with between 30% and 40% women lawmakers, as well as over twenty gender equity bills passed in each of these states between 2016 and 2022. This suggests that Democratic states may be leading the way with respect to maximizing anti-discrimination legislation put forth—in line with the Swiss Cheese Model of risk reduction. However, the substance of the bills passed is another critical part of the analysis.

Figure 8. Frequency of Gender Equity Legislation Passed, by Mean % Women Lawmakers, 2016–2022

D. Topical Analysis of Gender Equity Legislation Post #MeToo

This Section takes a closer look at the types of bill topics introduced or passed and examines whether the activity was responsive to the gaps in protection previously identified in Parts I and II. We found that states attempted to pass a variety of legislative measures on a number of topics related to gender equity and workplace harassment. The breadth of introduced bill topics is promising, as it suggests legislators are open to taking a multi-layered approach to increasing protection and minimizing harassment—especially in industries at particular risk.

Figures 9 and 10 display the introduced and passed bills according to the topic of the legislation. As Figure 9 illustrates, pay equity was the most common topic of proposed legislation, with more than 700 bills introduced. Leave laws were the second most common topic, with 582 bills proposed. Enforcement bills—which included a variety of reforms to strengthen protections by changing legal rules and remedies—were the third most prevalent, with 376 bills. Laws mandating changes to employer practices and policies (“Anti-Harassment Practices”), such as harassment training and grievance procedures, came in fourth, with 332 bills.

The topics most commonly passed in the legislature did not correspond to the topics that were most frequently introduced. The most commonly passed topic was “Other,” which predominantly consisted of symbolic legislation, such as designating an “Equal Pay Day,” expressing a policy position, or establishing a task force. The second most commonly passed topic was laws relating to Anti-Harassment Practices, closely followed by laws relating to Pay Equity.

Figure 9. Number of State Gender Equity Bills, By Primary Topic

The volume of bills introduced on specific topics could ultimately be viewed as a proxy for broad legislative interest in a topic, with pay equity and leave garnering the most interest. Legislative volume may also be an indicator of legislative creativity and innovation around a particular topic. Pay Equity bills in particular produced a wide variety of proposals to address the underlying problem, ranging from pay disclosure rules, protection from retaliation, new forms of equal pay mandates, or restrictions on the types of information employers can use to calculate pay rates. Republican led states were often as creative in this regard as Democratic ones.

For example, West Virginia introduced a bill entitled the “Katherine Johnson Fair Pay Act of 2019” in honor of Katherine Coleman Johnson, an African American mathematician born and educated in West Virginia.²⁰⁹ She was awarded the Presidential Medal of Freedom despite facing segregation and wage discrimination along with the rest of her Black female crew. The bill would prohibit an employer from (1) banning pay discussion in the workplace formally through waiver or informally and (2) inquiring about prospective employees’ wage or salary history.²¹⁰ Utah and Wyoming also took steps to bolster equal pay protections; in 2016 and 2019, respectively, both states passed legislation increasing fines for employers and legal remedies for victims of wage discrimination.²¹¹

Many states also used a bundling approach, by adding in additional topics that were “secondary” to a primary bill topic.²¹² Once secondary topics are included, the “Other” category remains the most commonly passed topic. However, other types of reforms received a substantial boost by including “secondary” topic codes, particularly the “Enforcement” category, which rises to second place when secondary topics are included. Likewise, anti-discrimination law reforms were much more frequent when adding analysis of secondary topics. This suggests that legislators are strategizing—proposing a bill on a primary topic, such as pay equity, that may garner wider support, and then in the same bill, adding other protections that are less likely to be presented and supported in standalone bills.

These secondary “hidden” topics are of note because they tend to add substance to bills that may otherwise lack the ability to promote effective change. We measure the effectiveness of a bill by assessing its ability to fill at least one of the many gaps identified in harassment and anti-discrimination law. The ability to fill these “holes,” to use the Swiss Cheese Model analogy, indicates an appropriate focus on how harassment and other gender inequities in the workplace are actually experienced by today’s most vulnerable workers. For example, many of the workers most vulnerable to harassment also have extremely limited economic bargaining power due to various factors including the racial and gender pay gap. To bolster these workers’ ability to fight existing wage discrimination, many state legislators added a cause of action into pay equity reform bills that would have otherwise lacked an enforcement mechanism that allowed workers to take their claims in court.

Figure 10. Total Number of State Gender Equity Bills Passed, By Topic

Secondary topics were a common feature of the dataset: almost 40% of bills had one or more secondary topics.²¹³ The most common topic bundle combined Pay Equity and Enforcement (307 bills), followed by Leave and Enforcement (200 bills). This bundle tended to reflect that new leave or pay equity laws were typically more substantive in nature and drafted with some sort of enforcement remedy beyond fines for employer violations—thereby increasing workers’ access to courts. For example, in 2016, even before the #MeToo activism, California passed an Equal Pay for Equal Work bill that was both systemic and substantive and included a bundle of enhanced protections.²¹⁴ This new law prohibits wage discrimination, creates a cause of action for employees aggrieved by wage discrimination, and prohibits retaliation against employees seeking enforcement of the law.²¹⁵

Table 2 also reveals less intuitive combinations, such as bundling Anti-Discrimination Law along with other bill topics. One example of this strategy comes from New York, where the 2020 legislature introduced an extensive bill that bolstered discrimination and harassment enforcement remedies and expanded protected classes to include individuals experiencing these harms on the basis of their sexual orientation and gender identity, marital status, familial status, and more.²¹⁶ This strategy was also adopted in many Leave laws, which were frequently accompanied by reforms to Anti-Discrimination Law (seventy-five bills). Pay Equity was also commonly paired with reforms to Anti-Discrimination Law (forty-one bills). This bundled approach may have served as an effective strategy to effect systemic broadening of statutory protection without attracting undue attention and opposition.

Indeed, it appears that strategically “bundling” topics increased the ability of legislatures to pass reforms that either (1) create or strengthen a variety of enforcement mechanisms for harassment and other gender equity claims, or (2) broaden coverage under anti-discrimination statutes. Although standalone bills involving these reforms had less success, legislators appear to have successfully tacked them on to bills involving other subjects.

Table 2. Common Bundles of Workplace Gender Equity Topics
Primary topic	Secondary topic
Primary topic	Anti-Discrimination Law	Anti-Harassment Practices	Enforcement	Anti-Discrimination Law	Anti-Harassment Practices	Mandatory Arbitration	Anti-Discrimination Law	Anti-Harassment Practices	Pay Equity	Anti-Discrimination Law
Anti-Discrim. Law		5	60	21	10		1	2	3	1
Anti-Harassment Practices	25		29	11	2	4	9	13		37
Enforcement	25	12		5	12		3	4	6	9
Govt. Officials and Contracts	8	58	11		1			1	1	19
Leave	75		200				18	6	2	27
Mandatory Arbitration	2	3	20	10				1		12
Occupational	1	12	12		3				1	5
Other	7	8	3	1	7			16		8
Pay Equity	41	1	307	47	17		22	51		54
Transparency	6	10	36	28	1	14	8	2	1

Reform initiatives that aim to strengthen enforcement mechanisms and broaden coverage under Title VII to protect more workers are essential because they increase access to the courts. Reform will not reduce the prevalence of harassment and other gender inequities if impacted workers are unable have their claim addressed by the court system. It is also true, however, that the judiciary needs reform itself, particularly with respect to its interpretation of the severe or pervasive standard, the objectively hostile standard, the Faragher/Ellerth defense, and retaliation. Until the judiciary is more in touch with the realities of the workplace, it is unclear how well this new wave of workers with access to the courts will fare.

Progressive coastal states such as California and New York provide examples of legislative agendas that substantially shift how workplace harassment is conceptualized by courts.²¹⁷ This legislation attempts to remedy some of the shortcomings in harassment jurisprudence discussed in Part II.²¹⁸ Both of these states also amended laws to expand protections for harassment and discrimination to include more protected categories as well.²¹⁹

Some states also improve enforcement by extending the administrative filing period of harassment and discrimination claims. Five states (California, Connecticut, Maryland, New York, and Oregon) extended the administrative filing deadline.²²⁰ Of these, three states extended the deadline for all discrimination claims.²²¹ This is particularly important for low-wage workers, for whom inadequate filing deadlines exacerbate existing pressure to use limited time and resources to at once both find a job and seek legal recourse for harm suffered.

A relatively small number of bills sought to increase the damages available in harassment claims. These bills were also somewhat successful, with four states—Virginia, Nevada, New York, and Connecticut—increasing available damages. Many—but not all—who passed bills did so by (1) allowing the discrimination plaintiffs to recover both compensatory and punitive damages and (2) removing damage caps for victims of discrimination based on employer size. In some states—such as Nevada—damage caps remain, limiting the impact of recent increases in available damages.²²²

IV. Discussion & Implications

When analyzing the legislative activity over time, we found that proposed bills began to address a wider range of systemic gender equity issues over the time period;²²³ however, as with many movements, reform efforts gradually fizzled out over time. Importantly, however, they never returned below the 2016 baseline activity. These empirical results suggest that while the #MeToo movement may have sustained some of its initial impact on harassment and gender equity reform over the past five years, progress may be stagnating. Avoiding further stagnation requires legal stakeholders to offer workers consistent harassment and gender equity reform that are responsive to the changing realities of the current workplace. This includes acting swiftly to respond to the 2025 Trump administration’s attempts to reverse harassment-related protections for transgender workers under Title VII.²²⁴

A. Did States Fill Any Gaps?

State legislation partially filled gaps left by federal law. While state legislators took a broad approach to introducing harassment and gender equity reform, they took a narrower approach to amending harassment law. While we did see efforts to combat noted gaps in protection such as mandatory arbitration at both the state–and even federal level–these efforts are typically limited to banning mandatory arbitration of sexual harassment claims—leaving harassment on other bases, as well as other discrimination claims, unprotected. This creates challenges for the plaintiffs experiencing harassment based on multiple categories or those experiencing both discrimination and harassment, which often occur together.

At the same time, state legislatures seriously attempted—and, in many cases, succeeded—in expanding the list of protected classes protected by anti-discrimination law. For example, some states have expanded protections to cover workers excluded from Title VII coverage, such as those working for small employers, independent contractors, and unpaid interns, among many others.²²⁵ Some have also expanded liability and remedies for harassment by removing Title VII’s affirmative defense against harassment as well as its caps on compensatory and punitive damages for victims of harassment.²²⁶

The most unexpected finding came from the Enforcement bill category. Enforcement was the third most introduced bill topic, suggesting stronger legislative support than expected. Moreover, when we considered secondary topics, the number of Enforcement bills nearly doubled. This suggests a strategy among state legislators to increase access to the courts and to strengthen relief available for harassment and gender equity issues, including pay equity, leave and accommodation, and anti-discrimination law. As a result, there will likely be an influx of the new plaintiffs who are able to have their day in state court. While this is generally good news, it also highlights the continuing and glaring failure of the judiciary to remedy the harassment that is experienced and brought before the courts. Expanding coverage to additional workers and increasing their access to the courts will only work if they are encountering a judiciary that is responsive to power hierarchies and realities of the workplace, while also being serious about curtailing harassment. It is clear that there is still work to be done in this respect, and we look forward to conducting further research examining the topical granularity of the Enforcement bills in our database and how future clams fare in court.

On the federal level, several bills failed in their attempt to remedy the judicially created harassment doctrine outlined in Part II. House Bill 8698, for example, introduced in October 2020, sought to amend Title VII to overturn Supreme Court jurisprudence that is unfavorable to victims of harassment, including Alexander v. Sandoval,²²⁷ Vance v. Ball State,²²⁸ and Faragher/Ellerth.²²⁹ This bill would enhance enforcement by allowing the plaintiffs to sue under Title VII based on evidence of disparate impact, strengthening the plaintiff’s ability to sue under a theory of vicarious liability, and reducing the likelihood of judicial deference to employer anti-harassment policies and procedures, despite ineffectiveness.²³⁰ The bill also created a broader exception to the Federal Arbitration Act for all employment-related rights and remedies under federal and state law, not just sexual harassment.²³¹ It would also have expanded available remedies by allowing the plaintiffs to collect pre-trial attorney’s fees.²³² House Bill 8698 would prohibit employment discrimination on the basis of sexual orientation and gender identity,²³³ a proposal that was ultimately rendered moot by the Supreme Court’s 2020 decision in Bostock v. Clayton.²³⁴

Knowing the effect of the #MeToo movement on legislative agendas and bill passage rates is important for those who wish to maintain and expand the momentum that was fueled and, in some cases, created by these movements. More specifically, legislators and other legal decisionmakers, including the courts and government agencies, should make workers’ voices central to their work. Following the lead of worker organizers whose anti-harassment advocacy efforts predated the groundswell of attention brought by the #MeToo movement will not only bring consistency, but also timeliness and specificity to the anti-harassment agendas set by various legal stakeholders. Below, we outline four specific issues that we believe should be central to advocacy efforts in particular, due to their deleterious effects on workers most vulnerable to workplace harassment.

B. Legal Gaps in Need of Greater Attention

While the past five years following the #MeToo movement have seen reforms that were more systemic and bipartisan than anticipated, major gaps persist, allowing harassment to remain a threat. Harassment and gender equity reform is particularly in need of (1) more systemic changes with greater oversight, transparency, and accountability, (2) greater focus on intersectional harms, (3) well-informed enforcement efforts by judges, attorneys, and agencies alike, and (4) more creative strategies to deal with retaliation.

Symbolic Action and Individuation of Harassment Continues, and Even Worsens?

Our analysis revealed a substantial number of reforms that were symbolic in nature, which encourages institutional “window dressing,” to merely signal enhanced rights, but without effective policies or cultural shifts.²³⁵ Some states created days of honor or remembrance, without adding substance of additional protections or enforcement, which we do not expect to make a meaningful difference beyond raising public awareness about harassment and other gender equity issues. Others condoned behavior of a government official or stated policy support for an issue, without actually making changes that change circumstances for women on the ground. Many states also created task forces and commissions to study issues of harassment and gender equity, but subsequent legislation would be needed to effectuate any changes proposed by these groups. Symbolic reforms may even be counterproductive to the extent they “check the box” by passing a related bill, creating the appearance of having addressed the problem. This can provide political cover while failing to implement more meaningful systemic reform.

Even more troubling is the continuing popularity of bills imposing harassment training requirements. While these bills can have substantive impact, research has shown that unless certain conditions—such as transformative leadership or bystander-specific training—are met, trainings are likely to be ineffective at promoting changes in workplace behavior. Moreover, training requirements can even be counterproductive. Legal stakeholders, thus, need to be aware of how training requirements tend to individuate harassment, making it about individual perpetrators rather than broader shifts in workplace culture, power dynamics, and worker dignity that are required. Training, grievance procedures, and investigations that focus on damage control may obscure the systemic patterns so often present in harassment and discrimination cases. In the current landscape, given the central role of the Faragher/Ellerth defense, these employer practices and procedures do more to insulate the employer from liability than they do to mitigate workers’ risk of harassment or other gender-based harms.

Greater Focus on Intersectional Harms

Congress and state legislatures can, and should, also introduce more legislation protecting specific industries where women of color are overrepresented. This includes not only domestic workers, but also independent contractors, farmworkers, healthcare, hospitality, retail, and restaurant workers.²³⁶ Although state legislatures have stepped up to fill substantial federal gaps in coverage post #MeToo, barriers to enforcement remain and limit potential impact. To be effective, more systemic reform efforts are required that go beyond harassment law to also broaden protections across legal doctrines to the benefit of all women workers. This means, in particular, supporting state and federal legislative agendas that close gaps for the most vulnerable women workers, including low-wage workers, women of color, workers with disabilities, and LGBTQIA+ workers.

Importantly, this requires moving away from the narrow interpretation of sexual harassment by judicial precedent and envisioning a new legal agenda around gender equity reform that is responsive to the reality of our evolving workplace and society. Doing so will require not only our policymakers, but also agencies and courts, to internalize gender inequity—rather than sexual desire—as the foundation of workplace harassment, highlight how it is exacerbated by low-wage employment, and acknowledge how its impact, in many cases, compounds for women with additional protected characteristics, in precarious work, segregated working conditions, and occupationally isolating jobs.²³⁷

Navigating an Employer-Friendly Judiciary

As aforementioned, our legislative analysis suggests that plaintiffs will have greater access to the courts in the near future; however, we must further question and examine what that means if the judiciary continues to constrain harassment law and gender equity doctrine. This is a key moment for employment and civil rights lawyers to advocate effectively for their clients and in doing so, set new precedents, for the court. Doctrinal areas in need of innovation include the “severe and pervasive” requirement, the “objectively” hostile or abusive standard, and the Faragher/Ellerth affirmative defense.

Dealing with Retaliation is Required for Reforms to Work

Strengthening judicial enforcement is also important in the context of retaliation, which continues to go hand in hand with harassment. Despite high rates of retaliation and its role in deterring victims from speaking up and using existing protections, state legislative agendas failed to pass measures that would more effectively deal with this issue. Solving the problem of retaliation requires more than changes to anti-retaliation laws; it also requires stronger enforcement that would incentivize systemic changes to workplace culture. In addition to legislation strengthening anti-retaliation protections generally, more bills should focus on identifying and mandating what specific behaviors are considered retaliatory. These reforms could include retaliatory actions such as substantive changes to terms of employment, disclosing personnel files, contacting immigration authorities, or threatening to report an employee’s immigration status.²³⁸ Doing so would signal the legislature’s recognition that retaliation is rooted in systemic power imbalances and is particularly threatening for workers in low-wage industries or workers with intersectional identities including race and national origin.

Conclusion

Considerable legislative progress has been made in the first five years after #MeToo went viral. Overall, more harassment and gender equity reform has occurred than expected, and through a more varied and comprehensive approach than first predicted. This is particularly true at the state level where new laws also offer greater coverage and enforcement remedies under civil rights statutes regardless of worker classification and with consideration for their occupational hazards and intersectional vulnerabilities.

While it is clear that the #MeToo movement moved the law forward with respect to harassment and gender equity, more work needs to be done, particularly with respect to centering the interests of workers most vulnerable to harassment. Various institutions–including judges, lawmakers, and agencies–contributed to the dissonance between the legal enforcement of, and the realized experience of, workplace harassment. This dissonance is then distributed widely via media, leading to public apathy and confusion about the current landscape of workplace harassment and related gender equity issues. These legal stakeholders thus have a responsibility to ensure that access to justice is equitably and consistently distributed to all workers, especially those most vulnerable. Fulfilling this responsibility grows more

urgent everyday under an increasingly hostile second-term Trump administration.

This does not mean, however, that effective and responsive reform efforts are out of reach. Legislators and regulators alike should consult anti-harassment worker organizers in crafting future reform. Doing so will enable legal branches to establish greater consistency in their treatment of harassment and remain more up to date with the rapidly changing realities of workplace harassment. This, in turn, will have the desired effect of closing the gaps between how harassment is enforced on the books, how it is enforced in the workplace, and how it is experienced by working women.

Federal actors should also make fruitful use of state-level innovation to ensure that state-level successes achieve a broader impact. Now that states have provided evidence of bipartisan support for these issues, Congress and federal agencies including the EEOC, the Department of Health and Human Services, and even the Occupation Safety and Health Administration, should step in and offer a more systemic approach that covers the multitude of gender equity issues that contribute to harassment.

Lastly, our goal is for our dataset to be used as a public resource, from which further research can be developed with the hope of providing concrete findings regarding the effectiveness of state-specific harassment and gender equity legislation. In turn, this research can be used to bolster the advocacy efforts by worker organizers. Doing so will enable legal stakeholders to remain in conversation with those best situated to determine the needs of a given workplace with respect to preventing harassment: the workers themselves.

Appendix A. Search Terms Used to Identify #MeToo Related Legislation
Abusive Work Environment	Gender	Pay Parity	Sexual Orientation
anti-SLAPP	Gender Expression	Predispute Arbitration	Sexual penetration
Antidiscrimination	Gender Identity	Pregnant Workers	Sexual Violence
Compensation History	Gender Representation	Public Right to Know	Sodomy
Confidentiality Agreement	Gratuities	Rape	Stalking
Confidentiality Clause	Harassment	Retaliation	Statute of Limitations
Confidentiality Provision	Harassment Complaints	Salary Experience	Statutory Right
Cyberbullying	Harassment Prevention	Salary History	Unauthorized Disclosure
Denim Day	NDA	Sex	Wage Disclosure
Discrimination	Non-biased Compensation	Sexual Abuse	Wage Discrimination
Discrimination Complaints	Non-consensual	Sexual Arousal	Wage Disparities
Domestic Violence	Nonconsensual dissemination	Sexual Assault	Wage Disparity
Equal Pay	Nondisclosure Agreement	Sexual Assault Awareness	Wage History
Equal Rights	Nondisparagement Agreement	Sexual battery	Wage Secrecy
Equal Rights	Paid Family Leave	Sexual Discrimination	Workplace Bullying
Equal Rights Amendment	Panic Button	Sexual Gratification	Workplace Climate
Ethics Violation	Panic Device	Sexual Harassment	Workplace Misconduct
Family Leave	Pay Disparity	Sexual Intimidation	Workplace Protections
Forced Arbitration	Pay Equity	Sexual Misconduct

Appendix B. Search Terms Used on Bill Corpus to Verify Topic Coding
Topic	Search Terms
Anti-Discrimination	“gender identity” “gender expression” “sexual orientation” “pregnan” “famil* status” “marital status” “famil* responsibility”
Equal Rights Amendment	“equal rights amendment” “ratification”
Harassment Training/Policies/Procedures	“sexual harassment training” “sexual harassment prevention” “complaint process” and “complaint procedure”
Leave/Accommodation	“paid family leave” “safe” “paid sick leave” “domestic violence” “accommodation” “pregnan*” “adoption” and “foster”
Mandatory Arbitration	“mandatory arbitration” “forced arbitration” “arbitration agreement”
Occupational Protections	“domestic” “hotel” “farm” “janitor” “artist” “panic” “bill of rights” “entertainment” “gratuit*”
Pay Equity	“wage discrimination” “pay dispar” “equal pay for equal work” “equal pay” “salary history” “wage history” and “pay equity”
Enforcement	“severe” “pervasive” “statute of limitations” “punitive damages” “compensatory damages” “damages” and “tort”
Regulates Government Officials/Lobbyists/State Contractors	“lobbyist” “state contract” “legislator” “members of the legislature” “legislative staff” “public officials” and “expel”
Transparency/NDAs	“disclosure” “employment history” “non-disclosure agreement” and “nondisclosure agreement”
Other	“task force” “study” “high-wage, high-demand” “law enforcement” and “boards”

98 S. Cal. L. Rev. 761

Download

Jamillah Bowman Williams*

* Professor of Law & Faculty Director, Workers’ Rights Institute, Georgetown University Law Center; B.S. 2003, Georgetown University McDonough School of Business; M.A. 2005, University of Michigan; Ph.D. 2013, Stanford University; J.D. 2011, Stanford Law School. Thank you to Angelica Sanchez Diaz, Nick Gonzales, Keniece Gray, and Lolade Akintunde for research support. Thank you to participants at the Lutie Lytle Workshop for providing valuable feedback.

Elizabeth C. Tippett†

Professor of Law & James O. & Alfred T. Goodwin Senior Fellow, University of Oregon School of Law; B.A., 2002, Harvard College; J.D. 2006, Harvard Law School.

Anu Ramdin‡

Research Fellow, Georgetown University Law Center; B.A. 2018, University of Miami; J.D. 2022, University of California, Berkeley School of Law.

A Whole-of-Government Approach to Protect Unaccompanied Children from Labor Exploitation

July 2025July 2025Charlie Murphy*

A sharp rise in illegal child labor and an influx of unaccompanied migrant children into the United States combined to dominate headlines in 2023. Despite federal authorities placing migrant children in sponsor care, reports detailed such children being exploited in hazardous occupations across the country, with some losing their lives. An aging patchwork of federal immigration and labor laws and underfunded enforcement agencies have left an incredibly vulnerable subset of children at risk of exploitation or worse, and congressional action is needed to ensure that sponsored children are properly cared for and kept out of hazardous workplaces. While the federal government’s processing of unaccompanied children and illegal child labor have been separately examined by scholars, there is a glaring lack of scholarship on how the gaps in the immigration system and federal labor law combine to put unaccompanied minors at a greater risk of labor exploitation. This Note argues that the federal government must comprehensively update existing immigration and labor laws and increase interagency coordination to lower the risk of labor exploitation for unaccompanied children. If the United States wants to fulfill a humanitarian mission of caring for unaccompanied children, it must take responsibility for every child’s wellbeing throughout their immigration journey by taking a whole-of-government approach to the problem.

Introduction

News reports broke midway through the Biden presidency detailing shocking and troubling findings of migrant children working in punishing and dangerous jobs across the United States in violation of federal law. One report detailed the experience of a migrant child named Antonio, a fourteen-year-old who had left his home in Guatemala and made the perilous trek north to the United States.¹ After arriving at the U.S. border alone, the U.S. government placed Antonio into its custody in a shelter for several weeks until a former neighbor residing in Florida agreed to sponsor him while Antonio made his way through the immigration system. Upon his release to the sponsor, Antonio enrolled in the eighth grade and went to work for anyone who would hire a child without a work permit. Work took priority, and Antonio soon stopped attending school in order to survive. While sponsors of undocumented children are supposed to provide for the children in their care, Antonio’s sponsor instead kept track of the costs required to transport, house, and feed Antonio and required him to pay that money back, which took a year of work. Antonio cleaned houses, landscaped, and packed vegetables overnight. He worked for companies that claimed not to hire minors. He did not stay in his sponsor’s care long, instead living in apartments with several other people. Rather than attend school like other children, Antonio was forced to support himself. He now lives in a neighborhood in which children as young as twelve years old work in hazardous occupations such as construction in order to survive.²

Antonio’s story is a common one. Children who arrive at the U.S. border alone often find themselves forced to work rather than attend school in order to survive or pay off debts that sponsors or other parties impose on them, creating a real risk of child labor exploitation or even labor trafficking. “Labor exploitation” is an oft-used term without an exact definition, but as used in this Note, it generally describes employers committing workplace violations for profit, usually by scheduling employees for excessively long hours, underpaying them in violation of law, or disregarding safety rules and regulations meant to protect workers.³ “Labor trafficking” is a crime in which traffickers force people to work while taking the fruits of workers’ labor for themselves.⁴ Labor trafficking turns on an element of force, fraud, or coercion, by which labor exploitation is elevated from harmful, but possibly blameless, conduct to criminal and morally reprehensible behavior.⁵ Unaccompanied children are meant to be protected from such abuses in the United States by federal immigration and labor law.⁶

When children arrive at the U.S. border without permission to enter the country, they are apprehended and detained, usually by United States Customs and Border Protection (“CBP”).⁷ Children with no parent or legal guardian present are separated from whoever they are with and held in temporary facilities made for adults. They are then questioned by federal agents and, if found to be unaccompanied, are transferred to the custody of the Department of Health and Human Services’ (“HHS”) Office of Refugee Resettlement (“ORR”). In ORR custody, children are put into some form of group facility with other children, generally for about thirty days. ORR houses and feeds these children, and case managers eventually speak with each child to determine a suitable sponsor for the child to be placed with. While finding sponsors, the U.S. government enters each child into formal removal proceedings, unless a child asks to be repatriated.

ORR screens each potential sponsor, but screening requirements often change with presidential administrations or with a rise in the backlog of children in federal custody. Changes in sponsor screening can affect the length of time that children are in ORR custody, which is particularly problematic given that longer stays in government custody can cause lasting trauma to children. With a backlog of children in federal custody upon taking office in 2021, the Biden administration pushed to release children as quickly as possible to sponsor homes and lowered the hurdles that sponsors must clear when applying to ORR’s Unaccompanied Alien Children Bureau (“UAC Bureau”), the federal program that places unaccompanied children in sponsor homes.⁸ In its haste, the administration may have unintentionally increased the risk of unaccompanied children landing in unsuitable environments in which labor exploitation or trafficking can occur.

In the best-case scenario, ORR places a child with a sponsor that the child knows, such as a parent or family member, who will properly care for them and enroll them in school while the child’s immigration proceedings play out. The worst-case scenario is that the child is placed with a sponsor whom they have never met, who will take advantage of the child financially or otherwise. In this worst-case scenario, sponsors might charge children for basic expenses like rent, food, clothing, and school supplies, essentially forcing the child to work after school (or in lieu of attending) to repay their debt.⁹ Worse, the sponsor may force the child to work and take the child’s entire earnings for themselves. Migrant children who must work often find themselves in workplaces considered dangerous by the federal government, even for adults.¹⁰ These children may not make enough money to pay their debts working normal shifts after school hours, so they may work overnight shifts or stop attending school altogether to work full-time. In such workplaces, child workers have been injured, maimed, and killed while working in violation of federal labor law.¹¹ Despite the risk, the harsh reality is that many unaccompanied children feel they have to work due to their vulnerable circumstances. What choice do they have otherwise?

The scenario described may seem horrific, or even unrealistic, but it has happened repeatedly in the United States. While such stories surface in the news annually, Congress finally put a renewed focus on the issue of child labor in 2023 after Hannah Dreier’s reporting in The New York Times detailed just how widespread the issue of migrant children working in dangerous American workplaces is.¹² Some migrant children have allegedly been trafficked into forced labor, and multiple federal agencies have been criticized for failing to adequately prevent or respond to the risk these children face, particularly ORR and the Department of Labor (“DOL”). Exposés like Dreier’s have cropped up amidst an unprecedented spike in unaccompanied children arriving at the U.S.-Mexico border, a spike that strained the government’s ability to adequately care for unaccompanied children. Particularly concerning to some members of Congress and the public was an allegation that ORR was unable to get in touch with over 80,000 unaccompanied children that the agency had released from its custody into sponsor homes.¹³ ORR’s inability to get in touch with tens of thousands of children coincided with a dramatic surge in documented cases of illegal child labor nationwide. Although congressional Republicans and Democrats held hearings with ORR and DOL officials to understand why children could not be contacted and why child labor violations were increasing,¹⁴ there was little in the way of a coordinated government response to deal with these crises as related issues that may increase the risk of unaccompanied children being exploited for their labor.

Encouragingly, in 2023, ORR and DOL agreed to share information in an effort to jointly combat child labor trafficking and exploitation.¹⁵ But between ORR’s limitations in providing post-release services to children paroled into sponsor care and DOL’s lack of resources and relatively toothless enforcement options, migrant children still have inadequate protections and can fall prey to labor trafficking or exploitation. While some scholarship exists on the inadequacies of the UAC Bureau,¹⁶ few if any scholars have focused on how gaps in immigration law and federal labor law combine to increase the risk of exploitation to unaccompanied children. This Note aims to fill the gap in current scholarship relating to unaccompanied children by undertaking a novel and holistic review of both federal immigration law and labor law. The aim is to identify gaps in both areas of law that contribute to the risk of unaccompanied children being exploited for their labor by either their sponsors or irresponsible employers and discuss how these areas can be addressed in a comprehensive manner to lower that risk of harm.

This Note attempts to make sense of the various statutes, regulations, and government agencies that are meant to protect migrant children in different ways and argues for a coordinated, whole-of-government approach to minimize the risk that unaccompanied children fall into labor exploitation. While this Note touches on labor trafficking, its main focus is labor exploitation, as there is no comprehensive source of reliable data on labor trafficking among unaccompanied minors. Part I of this Note begins by quantifying the historic levels of unaccompanied minors arriving at the U.S. border since 2019 and explores the shifting immigration policies and rationales that have contributed to the crisis. Part II explains the legal foundation governing the apprehension of unaccompanied minors and discusses ORR’s role in placing minors into custody. Part III examines child labor violations nationwide and delves into the legal framework that is supposed to protect children from being exploited in the workplace. Part IV analyzes the current failings of both federal immigration law and labor law to protect unaccompanied children and offers possible solutions that can minimize the risk of exploitation for these children. The Note concludes by laying the groundwork for future discussion.

By addressing the labor exploitation of unaccompanied children through a multipronged review of separate but overlapping areas of law, this Note endeavors to change the discourse surrounding the federal government’s approach from a conversation of unilateral federal agency failures to one that discusses how our patchwork system of laws can be updated to best serve the needs of unaccompanied children. The Biden administration correctly approached influxes of unaccompanied minors with a humanitarian focus, but federal law needs to be updated to ensure that the federal government takes full responsibility for ensuring the safety of each child it welcomes into the country.¹⁷

I.A Historic Influx of Unaccompanied Children

Before exploring what happens when unaccompanied children enter the United States, it is important to highlight who these children are, where they come from, why they flee their homes, and what happens when they encounter border authorities in the United States. To begin, a migrant child who arrives at the U.S. border unaccompanied by a parent or guardian is referred to by CBP as an “unaccompanied alien child,” or “UC,” for short.¹⁸ A UC is statutorily defined as a child under eighteen years old who has no lawful immigration status in the United States and who either has no parent or legal guardian accompanying them into the United States or has no parent or guardian who can provide immediate care and physical custody.¹⁹ From 2010 until 2019, CBP apprehended an average of 43,425 unaccompanied children per year at the U.S. border, with nearly all of those apprehensions occurring at the Southwest border.²⁰ The number of apprehensions trended upward over that ten-year span, hitting a then-record high of 76,136 during the first Trump presidency in 2019.²¹ Decreased migration and public health border enforcement during the COVID-19 pandemic led to a sharp downturn in apprehensions in 2020, but since 2021, there has been a massive spike in the number of unaccompanied children arriving at the U.S. border, with an average of 130,122 CBP apprehensions per year.²² This average nearly doubles the pre-pandemic record high for apprehensions of unaccompanied children in a single year.

The majority of unaccompanied children are consistently aged between fifteen and seventeen years old.²³ For years, most unaccompanied children arrived from Mexico, but that majority has shifted dramatically over the last ten years to the Northern Triangle countries of El Salvador, Guatemala, and Honduras.²⁴ Regardless of country of origin, similar explanations underlie why migrant children are traveling to the U.S. border en masse. Many migrant children seek economic opportunity, which has always been a factor driving immigration, but many others flee extreme violence, poverty, and ecological disaster.²⁵ Others are driven by a desire to reunite with family already in the United States, with an estimated 80% of unaccompanied children having at least one family member in the country as of 2021.²⁶ While some politicians and pundits may try to ascribe nefarious motives to the spike in migration, there are usually reasonable economic and socio-political explanations for why children arrive at the U.S. border.

Where an unaccompanied child is from makes a large difference in what happens when they encounter border officials. Under the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”),²⁷ children arriving from noncontiguous countries such as El Salvador, Guatemala, and Honduras are usually detained by CBP and transferred into the custody of ORR.²⁸ Once transferred, these children are put into formal removal proceedings and given an opportunity to seek different forms of immigration relief, such as asylum.²⁹ In contrast, children arriving from Mexico or Canada are usually repatriated immediately, so long as they are not trafficking victims and raise no fear of persecution upon return to their home countries.³⁰

Waves of unaccompanied minors arriving at the U.S. border have challenged the last four presidential administrations. Fearing that children were being trafficked into the United States, the George W. Bush administration passed the TVPRA in 2008, which barred the quick deportation of unaccompanied minors from countries other than Mexico.³¹ The Obama administration used the TVPRA to greatly expand the government’s ability to respond to unaccompanied arrivals, housing children in temporary camps on military bases and spending billions of dollars expanding a network of shelters that ORR could place unaccompanied children into while they awaited placement in the United States.³² The Trump administration responded to surges in arrivals in 2019 and 2020 by trying to limit both legal and illegal immigration, focusing on deterrence through family separation policies and the solicitation of Congress for funds to erect a border wall, all while allowing ORR’s shelters to fill near capacity.³³ When the COVID-19 pandemic struck in 2020, the Trump administration seized on a Center for Disease Control and Prevention (“CDC”) public health order called Title 42 to promptly deport most unaccompanied children detained by CBP to Mexico, in violation of the TVPRA.³⁴ The use of Title 42 cut encounters with unaccompanied children at the southern border by more than half,³⁵ but left kids to fend for themselves along the U.S.-Mexico border. In 2021, the Biden administration reversed course, formally exempting unaccompanied minors from Title 42 expulsions and requiring that they be processed under the TVPRA’s Title 8 procedures.³⁶ Unaccompanied minor apprehensions rebounded in 2021 to what was then a new record high of 140,191, before jumping again in 2022 to 149,086.³⁷

Whether any executive policy has been particularly effective in properly addressing surges in unaccompanied-minor arrivals is up for debate. The Trump administration’s hardline policies against immigration lessened the number of encounters with unaccompanied minors, but a survey of Central American children in transit revealed that 66% would try to flee their country again if detained and deported by the U.S. government,³⁸ showing that hardline tactics are not likely to stop unaccompanied children from arriving at the U.S. border. The Obama and Biden administrations took a two-pronged humanitarian approach by housing minors in shelters as a short-term solution with a goal of family reunification or sponsor placement, while attempting to address the root causes of immigration by working with foreign governments to dissuade foreign citizens from immigrating and providing legal pathways for children to apply for entry into the United States without arriving at the border unannounced.³⁹ While the Obama and Biden approaches were humanitarian in nature, such approaches were also unlikely to disincentivize children from traveling to the border.

This Note is not meant to tackle the root causes of child migration or question whether the U.S. border should be accessible or closed to migrant children. Whether increased child migration is driven by violence, poverty, ecological disaster, economic opportunity, or governmental policy, it almost certainly will persist. Rather, this Note recognizes that unaccompanied minors are uniquely vulnerable to labor exploitation and trafficking and that current U.S. law is ill equipped to protect children from such realities. The question is, how can current legal structures be changed or improved to handle arrivals of unaccompanied minors in a way that best meets the needs of such children?

II.The Legal Foundation Underpinning ORR’s Apprehension, Custody, and placement of Unaccompanied Children

The apprehension and administrative processing of unaccompanied children is governed by a court settlement known as the Flores Settlement Agreement of 1997 (“Flores Agreement”), the Homeland Security Act of 2002 (“HSA”), the TVPRA, and various regulations. Understanding the legal foundation underpinning the UAC Bureau is critical to evaluating the gaps in the system that expose unaccompanied minors to a greater risk of labor exploitation.

A.The Flores Settlement Agreement of 1997

The modern-day treatment of unaccompanied children detained by the government was largely shaped by the Flores Agreement. The Flores Agreement resulted from a class action lawsuit between the former Immigration and Naturalization Service (“INS”) and two organizations representing the legal interests of immigrant children held in INS detention. The lawsuit was brought on behalf of detained children who were held in “suboptimal conditions” and “subjected to daily strip searches by immigration officers.”⁴⁰ In 1984, the INS “adopted a policy prohibiting the release of detained minors to anyone other than ‘a parent or lawful guardian, except in unusual or extraordinary cases.’ ”⁴¹ These children were held in government detention despite many having other adult family members who were willing to care for them while their immigration proceedings played out.⁴²

In 1997, the plaintiff class and the government reached a settlement which set out a nationwide policy governing the detention, release, and treatment of minors in INS custody.⁴³ The settlement required the humane treatment of migrant children held in federal custody⁴⁴ and created a presumption in favor of release and family reunification for minors who were not at risk of missing appearances in immigration court or whose safety did not need to be ensured.⁴⁵ Under the agreement, minors were to be released from INS custody, in order of preference, to (1) a parent, (2) a legal guardian, (3) an adult relative, (4) an adult individual or entity designated by the parent or legal guardian, (5) a licensed program willing to accept legal custody, or (6) an adult individual or entity seeking custody.⁴⁶ Unreleased children were to be placed in a state-licensed and non-secure program that provided residential, group, or foster-care services for children.⁴⁷

While the district court that approved the Flores Agreement continues to monitor the federal government’s compliance with its terms,⁴⁸ developments in statutory law (particularly the passage of the HSA and TVPRA) and federal regulations have changed the structure of U.S. immigration and modified the Flores Agreement’s nationwide policy regarding the detention and release of minors held in government custody.

B.The Homeland Security Act of 2002

The HSA abolished the INS and created the Department of Homeland Security (“DHS”) to fulfill most of INS’s functions,⁴⁹ including immigrant detention and removal responsibilities.⁵⁰ Importantly, section 462 of the HSA transferred INS’s jurisdiction over unaccompanied children to ORR.⁵¹ Section 462(b)(1) made ORR responsible for “the care and placement of unaccompanied alien children,” requiring the agency to consider the interests of each child when making care and custody decisions and make placement determinations for every unaccompanied child in federal custody by reason of immigration status.⁵² The HSA defined “unaccompanied alien children” as children under eighteen years of age who have no lawful immigration status and no accompanying parent or guardian present in the United States⁵³ and defined the term “placement” as the “placement of an unaccompanied child in either a detention facility or an alternative to such a facility.”⁵⁴ ORR inherited both INS’s custodial responsibilities and its responsibilities arising under the Flores Agreement, specifically the mandate to place unaccompanied minors into the care of a suitable sponsor, per the list of placement preferences.

C.The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

Congress enacted the TVPRA, in part, to address concerns that unaccompanied minors in government custody were being inadequately screened for evidence of human trafficking.⁵⁵ The TVPRA builds on the HSA and requires that the Secretary of Homeland Security develop policies and procedures to ensure that unaccompanied children are safely repatriated to their country of nationality or to the last country they lived in.⁵⁶ Section 235 of the TVPRA lays out “special rules” allowing children from contiguous countries (Mexico and Canada) to be safely repatriated to their country of origin or last habitual residence.⁵⁷ Under section 235(a), an immigration officer may remove an unaccompanied child appearing at a land border or U.S. port of entry from the country so long as the child is from a contiguous country, has not been nor is at risk of being a victim of a severe form of human trafficking, and does not have a credible fear of persecution in their home country, and so long as the child is allowed to make an independent decision to withdraw their application for admission to the United States.⁵⁸ Children must be screened for evidence of trafficking or persecution within forty-eight hours of apprehension.⁵⁹

Unaccompanied children from noncontiguous countries, like those comprising the Northern Triangle, must be transferred to ORR’s custody within seventy-two hours, consistent with the HSA.⁶⁰ The Secretary of HHS, in collaboration with the Secretary of Homeland Security, Attorney General, and Secretary of State, is tasked with promulgating policies and programs for ORR to follow to ensure that unaccompanied children are “protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity.”⁶¹ Importantly, children in ORR’s care and custody are to be promptly placed in the “least restrictive setting that is in the best interest of the child.”⁶² The least restrictive setting requirement works hand in hand with the HSA requirement of sponsor placement and prevents children from being held in government detention indefinitely while awaiting their immigration hearings.

The TVPRA directs ORR to find each child a suitable sponsor who is capable of providing for the child’s physical and mental well-being.⁶³ ORR is tasked with verifying a sponsor’s identity and relationship to the child and is responsible for ensuring that a sponsor has not engaged in any activity that would signal potential risk to the child.⁶⁴ ORR must also determine whether a study of the sponsor’s home is necessary before placement, which is required for children who were victims of severe forms of trafficking or of physical or sexual abuse, who have disabilities, or whose proposed sponsors clearly present a risk of “abuse, maltreatment, exploitation, or trafficking.”⁶⁵ After placement, the TVPRA requires ORR to conduct “follow-up services” only for children for whom a home study was conducted, but ORR is authorized to conduct such services for children who could “benefit from ongoing assistance from a social welfare agency.”⁶⁶ What follow-up services entail is not defined in the law, nor is there guidance as to which children would benefit from ongoing assistance, leaving ORR with discretion unless directed otherwise. Put another way, if no home study is performed, ORR has no responsibility under the TVPRA to follow up with a child whom it placed into a sponsor’s care.

D.ORR’s Role in Child Custody and Placement

As laid out in the HSA and TVPRA, ORR is the branch of HHS tasked with caring for and placing unaccompanied minors into sponsor homes. Those two statutes, and by extension, the Flores Agreement, provide the legal basis for ORR’s UAC Bureau, which puts the statutory schemes of child detention and placement into practice. Exploring the reality of the UAC Bureau, including how and where children are actually placed and what occurs after placement, is essential to understanding how immigration law and ORR practices place migrant children at an increased risk of labor exploitation.

The majority of unaccompanied children are referred to ORR’s UAC Bureau after being apprehended by DHS border patrol officers, with some children referred by other federal agencies in rare circumstances.⁶⁷ When a child is referred to ORR, ORR obtains background information on the child from the referring agency and attempts to determine the most appropriate and least restrictive setting in which to hold the child until a sponsor determination is made.⁶⁸ Settings may include a shelter facility, foster care or group home, staff secure or secure care facility, residential treatment center, or other special needs care facility.⁶⁹ In moments of high influx, settings have included temporary influx care facilities (“ICFs”), in which hundreds or thousands of children can be kept, usually on army bases or in remote locations.⁷⁰

The initial setting that children are held in is part of the problem with ORR’s UAC Bureau. While some shelters are appropriate for children, the use of ICFs is controversial due to the “facilities’ large sizes, remote locations, durations of stay, and processes for transferring children to the facilities.”⁷¹ ORR internal reports have revealed thousands of allegations of sexual abuse and harassment in ICFs and identified shortcomings for reporting such incidents within ORR’s shelter network.⁷² Even in smaller settings, children are often traumatized by their stays in government custody. Minors are often surrounded by strangers and limited to two short phone calls per week with family members or potential sponsors, facing a lack of caregiver support that can cause toxic stress in children.⁷³ Studies have shown that children detained in federal custody can suffer from “high rates of PTSD, anxiety, depression, and suicidal ideation.”⁷⁴ Thus, the longer children are detained, the more likely they will suffer harm of some sort. As of March 2025, the average stay for children in ORR custody was eighty-two days, which ORR is continually working to reduce.⁷⁵

The placement of children in sponsor homes and ORR’s follow-up services are of particular interest in this Note. As discussed, ORR’s placement of a child with a sponsor begins as soon as ORR takes custody, with the Flores Agreement preferences used as a guideline in placement. Parents, relatives, and close family members in the United States may apply to have a child in custody released to their care.⁷⁶ If no family member comes forward, ORR works with the child to identify a potential sponsor, or with the child’s consulate or a reputable family tracing organization if the child is too young to provide potential sponsor information.⁷⁷

ORR requires each potential sponsor to be screened using safe screening methods. A non-exhaustive list of safe screening methods includes identifying the sponsor, verifying a familial relationship, coordinating with a child’s parents, legal guardians, or closest relative to contact nonrelative adult sponsors, screening for exploitation or trafficking concerns, or communicating with the child directly about his or her own sense of safety.⁷⁸

Sponsor requirements are not extensive. For the most part, a sponsor simply needs to fill out an application, undergo a background check, address any criminal history, and provide proof of their identity and address, the identity of the child whom they wish to sponsor, and any sponsor-child relationship.⁷⁹ Sponsors are assessed based on a number of factors. A non-exhaustive list includes the sponsor’s relationship with the child, their resources and motivation to care for the child, the child’s view on the release, the sponsor’s understanding of the child’s needs, and risk factors that may impact the child, such as the sponsor’s criminal background, history of substance abuse, mental health issues, or domestic violence or child welfare concerns.⁸⁰ ORR does not disqualify sponsors “based solely on their immigration status or for law enforcement purposes.”⁸¹ Importantly, while sponsors enter into agreements with the federal government to provide for the physical and mental well-being of children,⁸² there appears to be no enforcement mechanism at ORR’s disposal to ensure that sponsors live up to their agreements.

Once a child is transferred to a sponsor’s custody, “ORR’s custodial relationship with the child terminates,” and care providers are required only to keep a child’s case file open for thirty days to conduct a “Safety and Well-Being Follow Up Call.”⁸³ The purpose of the safety call is to determine whether the child is safe, still in the sponsor’s care, enrolled in or attending school, and aware of upcoming immigration court dates.⁸⁴ If the care provider cannot get in touch with the child or sponsor, the provider is required only to document that fact in the child’s file,⁸⁵ a somewhat inadequate requirement given that the government has tasked itself with ensuring the well-being of unaccompanied children.⁸⁶ While ORR provides post-release services to some children with certain needs, most children and sponsors are given access only to a national hotline to be called when needed. With hotline reports of labor trafficking and exploitation of unaccompanied children jumping up in 2023,⁸⁷ it is alarming that ORR was able to contact only 81% of sponsor households between 2021 and 2022.⁸⁸ But even more alarming is that ORR has no legal responsibility to track children once they leave its custody⁸⁹ or to remove children from unfit sponsors in the event a child is exploited.⁹⁰

III. Labor Law’s Role in protecting Unaccompanied Children

While the federal government grappled with an influx of unaccompanied minors during the Biden presidency, the United States saw a 69% increase nationwide in the number of documented cases involving children employed illegally from 2018 through 2022, notably in dangerous workplaces such as meatpacking plants, construction sites, and food-processing factories.⁹¹ This increase corresponded with several news reports in 2023 detailing migrant children working in dangerous workplaces in violation of child labor laws,⁹² along with reports documenting the possible trafficking of migrant children into forced labor.⁹³ While this Note has explored the leaky system of sponsor placement for unaccompanied minors, an exploration of the laws governing child labor protections also needs to be conducted before the holes in the system can be addressed.

A. The Fair Labor Standards Act of 1938 and Related Child Labor Policies

The federal law governing the employment of child labor is the Fair Labor Standards Act of 1938 (“FLSA”).⁹⁴ The FLSA imposes occupational and hourly restrictions for children of different ages and provides penalties for employers who violate these restrictions. According to § 212(c) of the FLSA, employers⁹⁵ cannot employ any “oppressive child labor” in commerce, the “production of goods for commerce,” or any “enterprise engaged in commerce or the production of goods for commerce.”⁹⁶ Oppressive child labor means that an employer employs a child under the age of sixteen in any industry except for those exempted by the Secretary of Labor⁹⁷ or that a child between sixteen and eighteen is employed in any occupation declared as particularly hazardous for the child or detrimental to the child’s health.⁹⁸

There are several subparts in the Code of Federal Regulations (“CFR”) that either permit or prohibit specific jobs that children are allowed to work, with jobs not explicitly allowed by the CFR considered prohibited.⁹⁹ The CFR allows minors to work in jobs like babysitting, newspaper delivery, and retail work,¹⁰⁰ but minors are generally not allowed to work in hazardous occupations such as manufacturing, mining, processing, construction, roofing, warehousing, or transportation of persons.¹⁰¹ Working hours for children between the ages of fourteen and fifteen are restricted by the FLSA, with such children generally not allowed to work during school hours, more than three hours a day or eighteen hours a week while school is in session, or beyond 7 p.m. during the school year or 9 p.m. during the summer.¹⁰² Children sixteen and older can generally work without hourly restriction in any jobs that have not been declared hazardous or detrimental to their health. While occupational restrictions remain in place as children age, federal law removes hourly restrictions when children turn sixteen, a somewhat arbitrary line, but one that corresponds with the maximum age of compulsory school attendance in many states. The main thrust of the FLSA’s restrictions is that children should not be working in hazardous workplaces or doing jobs that are detrimental to their health, nor should work interfere with their education.

An employer who violates the FLSA is subject to civil money penalties and possibly up to six months in prison if they willfully violate a child labor provision subsequent to an earlier conviction.¹⁰³ Employers are subject to a maximum fine of $15,138 for each employee who was the subject of a child labor violation and can face fines up to $68,801 for each violation that causes the death or serious injury of employees under eighteen.¹⁰⁴ For repeated or willful violations that lead to the death or serious injury of a child employee, the fine may double.¹⁰⁵ There is no private cause of action under the FLSA for children who suffer child labor violations, a problematic omission that will be discussed in Section IV.B.2.

DOL’s Wage and Hour Division (“WHD”) is responsible for investigating and determining whether employers are in compliance with the FLSA’s child labor provisions.¹⁰⁶ In 2023, WHD concluded 955 cases involving child labor violations, finding 5,792 minors were employed in violation of the FLSA, of which 502 were employed in hazardous occupations.¹⁰⁷ During the Biden presidency, WHD stepped up enforcement significantly, levying multi-million dollars in fines that nearly doubled in amount year-over-year between 2022 and 2024.¹⁰⁸ Unfortunately, the number of cases involving migrant children is not tracked by WHD, but the number of children employed in violation of federal law increased 88% between 2019 and 2023,¹⁰⁹ corresponding with the influx of unaccompanied child arrivals.

In February 2023, DOL and ORR recognized the link between increased child migration and increased child labor exploitation and entered into an interagency agreement to combat child labor exploitation amongst unaccompanied children.¹¹⁰ Pursuant to this agreement, DOL and ORR collaborate and share information regarding child labor investigations and child placements.¹¹¹ The agencies gave an example of what this information sharing looks like: DOL shares information regarding an active child labor investigation with ORR, and ORR scrutinizes its sponsor vetting process in the related geographic location for signs of exploitation affecting unaccompanied children placed nearby.¹¹² In the agreement, WHD pledged to affirmatively initiate investigations in which child labor violations are most likely to occur, while ORR pledged to follow up with any child who calls the ORR National Call Center with a safety concern, a practice that was not previously utilized.¹¹³ Most importantly, the agreement called on Congress to increase funding for WHD and the Office of the Solicitor to investigate child labor cases and to increase civil penalties for child labor violations to be more of a deterrent for employers.¹¹⁴ WHD and the Office of the Solicitor have been chronically underfunded for decades, costing WHD 12% of its staff between 2010 and 2019 and resulting in more than a hundred attorneys leaving the Office of the Solicitor.¹¹⁵ Those losses have limited the number of child labor cases that WHD and the Office of the Solicitor can investigate and conclude. Given that the actual number of child labor violations in the United States is currently unknown and WHD’s budget shortfalls leave it unable to properly investigate, there is no telling how many children are actually being exploited in U.S. workplaces.

B. Varying State Child Labor Laws

As mentioned earlier, state law plays a role in the child labor protection scheme, with each state having its own system for policing illegal child labor. Some states simply implement FLSA’s provisions into their labor codes, but many create stronger protections for minors. For instance, California follows the FLSA structure of occupational and hourly restrictions but imposes hourly restrictions on children over sixteen.¹¹⁶ California’s labor code also expands the reach of its child labor protections to any person who owns or controls real property where a minor is employed if that person benefits from the minor’s employment and knowingly permits a child labor violation.¹¹⁷ Extending liability to those who own or control property covers situations in which no employment relationship exists between the property holder and a minor. For example, if a business entity hires an independent contractor to work on the entity’s property and the contractor uses illegal child labor, the entity could be liable despite having no control over the contractor’s employee. State laws also often require children and employers to obtain work permits that can provide proof of age and detail any restrictions in working hours or tasks a minor is qualified to do.¹¹⁸

Troublingly, at least twenty-eight states have reworked their labor codes to loosen restrictions on child labor since 2021, with some states loosening hourly and occupational restrictions to the point of conflict with the FLSA.¹¹⁹ Iowa, for example, loosened occupational restrictions to allow children to work in dangerous occupations like brick manufacturing, roofing, and excavation, which are prohibited under the FLSA.¹²⁰ Iowa’s approach of allowing children to work in direct violation of FLSA restrictions is reflective of a recent push by some states to create a point of tension between state and federal law, which puts DOL on alert moving forward.¹²¹

Due to the varying approaches states take to child labor protections, state law generally is not the best tool with which to protect unaccompanied minors. While states like California may offer stronger protections than states like Iowa, unaccompanied minors will only be protected by the laws of the states in which they reside with their sponsors. Relying on state law to cure the gaps in federal law creates a system in which unaccompanied minors will be exposed to various levels of risk depending on how much emphasis states put on protecting children in the workplace.

C. Anti-Trafficking Laws Protecting Unaccompanied Children

Labor trafficking of unaccompanied minors is the ultimate concern when it comes to labor exploitation. Although the TVPRA is written to help protect minors from being trafficked by requiring DHS to determine whether an unaccompanied minor has been a victim of a severe form of trafficking or whether a child is at risk of being a victim in the future,¹²² there are not many preventative measures once a child leaves ORR custody. The precursor to the TVPRA, the Trafficking Victims Protection Act of 2000 (“TVPA”), added criminal offenses relating to human trafficking to the United States Code, which are supposed to act as a deterrent to would-be traffickers.¹²³ Under 18 U.S.C. § 1589, defendants found to be trafficking in persons can face fines and be imprisoned for up to twenty years.¹²⁴ If a trafficking violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the trafficker can be imprisoned for life.¹²⁵ Traffickers are people who knowingly provide or obtain the labor or services of a person by means or threats of force, physical restraint, serious harm, the actual or threatened abuse of law or legal process, or by any scheme, plan, or pattern intended to cause a person to believe that if they do not perform labor or services, they or another person would suffer serious harm or physical restraint.¹²⁶ The meaning of the term “serious harm” is broad, including physical, psychological, financial, or reputational harm that is serious enough to compel a reasonable person of the same background and in the same circumstances to perform labor or services to avoid the harm.¹²⁷ Traffickers are also subject to civil penalties, including full restitution to a victim for the full amount of the victim’s losses.¹²⁸

On its face, the penalty scheme for trafficking has robust enough punishments to deter sponsors or third parties from trafficking unaccompanied minors and abusing their labor. But the actual effectiveness of those deterrents is unknown given that there are no readily available and reliable statistics about how often traffickers are prosecuted for the labor trafficking of unaccompanied minors. Unaccompanied children have a remedy under the TVPA in the event that trafficking is proven, but trafficking tends to be very hard to prosecute, and the TVPA’s deterrents are unlikely to keep migrant children from being pressured or forced into hazardous labor in the first place. As discussed, migrant children often want to work to help their families, and it is unlikely that many know what a textbook case of labor trafficking consists of or when to report it. While these protections for unaccompanied children and punishments for traffickers are important to keep in mind, a lack of information from the government prevents this Note from being able to adequately explore and critique the TVPA’s efficacy.

IV. ISSUES WITH and possible solutions for ORR’s PLACEMENT OF UNACCOMPANIED MINORS AND Federal enforcement of Child LABOR LAWs

Migrant children working in hazardous occupations is not a new issue, but the rate at which child labor violations are increasing and the holes in the placement and supervision of unaccompanied children portend serious failings in U.S. law and the procedures that federal agencies employ. At best, the current gaps in immigration and labor law increase the risk of migrant children being exploited or harmed by working in jobs they should not be in. At worst, the gaps are large enough to allow labor trafficking to occur. Determining how to solve the issue is not a straightforward exercise. Federal agencies, shelter networks, and individuals all have a part to play, but the complex web of federal laws, regulations, and interagency agreements has been built by dealing with one symptom of the unaccompanied arrivals issue at a time. The government should take a more comprehensive approach, updating existing laws as a complete system to protect children from point A (arrival at the border) to point B (the resolution of immigration proceedings). The Biden administration rightfully responded to unaccompanied arrivals with a humanitarian approach focused on quickly getting children out of federal custody, but current law does not ensure that unaccompanied children will be adequately taken care of after their release. The TVPRA alone does not mandate ORR to do enough to protect children, nor does the FLSA provide robust enough enforcement mechanisms to properly deter irresponsible employers or third parties from exploiting children who are motivated to work for a variety of reasons. State law also cannot be relied on to adequately protect unaccompanied children due to the various different enforcement schemes at hand across the nation.

This Part will identify issues with ORR’s custody, placement, and post-release supervision of unaccompanied minors and DOL’s inability to properly deter illegal child labor. It will also discuss possible solutions that can be implemented in a way that balances humanitarian principles with employer realities and government capabilities, presenting a series of adjustments in U.S immigration and labor law that could combine to minimize the risk that unaccompanied children face labor exploitation. This Part assumes that the majority of employers are responsible and seek to fully comply with the law. It uses the term “irresponsible employers” to mean those that would willingly resort to illegal child labor in violation of state or federal law.

A.Issues with ORR’s Custody, Placement, and Post-Release Supervision of Unaccompanied Minors

1.Proper Vetting of Sponsors Versus Speed of Release

As discussed in Part III, there are many drawbacks to holding children in ORR custody. Children may suffer sexual harassment and abuse in government facilities,¹²⁹ and a child’s lack of contact with their family can lead to toxic stress that permanently alters brain chemistry.¹³⁰ Children being traumatized in federal custody is real. Studies show that detention is “deleterious to the mental health of immigrants” and that detained children experience significant psychological distress, especially when separated from their caretakers.¹³¹ While the risk of harm to migrant children in ORR’s custody has been clearly documented, releasing a child to a sponsor too quickly can put the child at risk of not being properly cared for, possibly leading to the child’s exploitation or trafficking, examples of which reporters have repeatedly identified.¹³² Thus, the government must strike a risk-minimizing balance between quickly placing unaccompanied children with sponsors to avoid prolonged detention and properly vetting sponsor households to ensure a safe environment for paroled children.

During the first Trump presidency, the average length of time that unaccompanied children remained in ORR custody ballooned to 102 days, partially as a result of an information-sharing agreement between ORR, Immigration and Customs Enforcement (“ICE”), and CBP that was geared toward increasing the due diligence required for sponsors.¹³³ The agreement called for ORR to share the citizenship and immigration status, criminal and immigration history, and biographic and biometric information about potential sponsors and their household members with ICE.¹³⁴ In turn, ICE would provide summaries of a sponsor’s immigration and criminal histories for ORR to make a more thorough decision on a sponsor’s suitability.¹³⁵ While the Trump administration sold the agreement as a more stringent vetting of sponsors to ensure the well-being and protection of unaccompanied minors, the policy was ultimately used by ICE to arrest and deport undocumented migrants who applied to sponsor children, causing a chilling effect on the number of sponsors willing to apply to take children in.¹³⁶ With fewer sponsors, increases in minors’ detention time naturally resulted. A massive backlog of unaccompanied minors in prolonged detention led the Biden administration to terminate the Trump-era information sharing agreement between ORR and ICE and temporarily waive background check requirements for sponsor applicant household members,¹³⁷ adopting a controversial policy of moving children more rapidly through the shelter system.¹³⁸ These policy changes created a major issue for the UAC Bureau: the risk of harm to children in custody was traded for the risk that children would end up in an inappropriate sponsor home. Moving back into a Trump presidency begs the question of whether President Biden’s approach should persist.

The second Trump administration should not return to a policy of sharing sponsor information between ORR and ICE, as it greatly prolonged child stays in detention while being used as a tool to deport family members who sought to reunite with children in federal custody. The Biden administration’s decision to terminate the information sharing agreement to speed up sponsor placements was the correct call, as it is not in the best interests of unaccompanied children or the government to discourage sponsorship by involving ICE in the vetting process. A child’s best interest is to be released quickly and safely, ideally into a family member’s care. But many family members of unaccompanied children may themselves be undocumented or live with others who are. Allowing ICE to scrutinize members of a sponsor’s household will undoubtedly disincentivize family members from applying as sponsors and lead to longer detention for children, as seen during the first Trump presidency. It is also unlikely that the immigration status of a member of a sponsor’s household, on its own, increases any risk to a child placed in the sponsor’s care. Likewise, the government’s best interest is also to quickly and safely place a child in a sponsor’s care, as it is not feasible for ORR to house, educate, and care for tens of thousands of children for any prolonged period of time. In its current state, the U.S. immigration system is not equipped to care for unaccompanied minors for more than a few weeks, if at all. Placing children with sponsors quickly, even if a member of a sponsor’s household may not have legal status in the United States, is better than leaving children languishing in federal detention and meets the needs of both unaccompanied minors and the federal government.

While the second Trump administration should not return to its former policies, the Biden administration’s policy of speeding up sponsor placements by waiving background checks for members of a sponsor applicant’s household should also not be used in the future. When ORR’s ability to properly care for children in custody is maxed out, sponsor placement is the only option, absent an uptick in resources meted out by Congress. That is the situation the Biden administration found itself in after taking office. But while speeding up placements is the only adequate option during times of agency overwhelm, the executive branch should not be able to resort to outright waivers of background checks for members of sponsor-applicants’ homes, as such measures impose unnecessary risk on the children that ORR is tasked to protect. The TVPRA already spells out minimum considerations ORR must make regarding sponsors,¹³⁹ and agency officials should remain beholden to minimal legal standards for the safety of unaccompanied minors.

Congress can likely address the shortcomings of both the Trump and Biden administrations by amending the TVPRA to ensure that anti-immigration administrations cannot impose unnecessary burdens on the UAC Bureau that slow child placement and that immigration-neutral or pro-immigration administrations cannot waive necessary background checks. Rather than setting a minimum standard, the TVPRA could be amended to define what a proper background check consists of, while making that background check non-waivable. While the TVPRA has minimum background check standards, Congress should take some discretion out of the hands of the Secretary of HHS by laying down a comprehensive and non-waivable background check via statute. Congress is in the best position to listen to stakeholders and balance the needs of children and HHS in outlining a background check. It can define the full scope of what a proper background check should consist of, prohibiting unnecessary steps like the extra ICE check, while ensuring that background checks cannot be legally waived by the HHS Secretary. Moreover, Congress should also statutorily guarantee that it will adjust ORR’s funding in times of system overwhelm. Such measures would add a layer of accountability and oversight over HHS in order to protect children from the harm of being released to unsuitable sponsors and guarantee that ORR has the resources it needs to properly ramp up operations during times of influx.

2.Keeping Track of Migrant Children Paroled into Sponsor Homes

The true impact of the Biden administration’s changes to sponsor vetting and child placement is currently unknown due to a lack of information about children placed into a sponsor’s care after a waived background check, which is a large part of the issue. According to former HHS Secretary Xavier Becerra, ORR has no legal requirement to keep track of children once it releases them from its custody, nor do paroled children or their sponsors have an obligation to follow up with ORR.¹⁴⁰ This is a major gap in the TVPRA and related regulations that raises the risk of labor exploitation. ORR increasingly lost touch with the children it paroled into sponsor care during the Biden presidency, as evidenced by the fact that it could not reach roughly 85,000 children for follow-up calls.¹⁴¹ Without a legal mandate to keep track of unaccompanied children upon release, ORR cannot be expected to prioritize critical measures that could help ensure the well-being of paroled children. ORR is the first line of defense in ensuring that children are in proper homes in which education is the priority, and the agency should be required to procure and maintain post-release data about whether children are attending school full-time or working, the nature of any such employment, and whether sponsors are adequately caring for them. Such data is critical in evaluating whether children are at a greater risk of harm by remaining in government custody or by being released as quickly as possible. At a minimum, Congress should amend the TVPRA to require ORR to keep track of children formerly in its custody and record statistics regarding school attendance and work performed, along with qualitative data about the child’s experience with their sponsor.

ORR does voluntarily contact children thirty days after their release and offers post-release services to a decent number of children,¹⁴² which shows that some infrastructure exists that could be scaled up. But ORR is not currently equipped to keep track of the tens of thousands of sponsored children currently in the United States and would certainly need further funding from Congress to do so. It is important to note that children would not need to be monitored indefinitely. The length of time that monitoring would be required is limited temporally by two factors: first, all unaccompanied minors are placed into removal proceedings immediately upon being transferred into ORR’s custody,¹⁴³ meaning each child’s monitoring has a guaranteed end date based on a determination of their immigration status; and second, children age out of the unaccompanied child program when they turn eighteen.¹⁴⁴ While ORR would need to significantly scale up its post-release capabilities to comprehensively track where every unaccompanied child goes and what happens to them post-release, this is likely a matter of political will that could have the backing of both conservative politicians concerned about undocumented immigrants in the country and liberal politicians concerned about the wellbeing of migrant children.

Monitoring whether unaccompanied children are attending school regularly would greatly improve the ability of ORR and DOL to identify children who may be at risk of exploitation. Much of the victimization discussed in this Note centers on unaccompanied minors who are working in hazardous conditions in violation of federal child labor laws. Children released to sponsors are usually required to attend school under state law,¹⁴⁵ but news reports make clear that many are not attending school regularly, if at all, and instead working long shifts in dangerous workplaces.¹⁴⁶ These children should be attending school full-time and focusing on their immigration matters. If a child’s attendance record in school is sparse, it may be evidence that the child is being overworked outside of school, which could point to exploitation from a third party. While ORR alone does not have the capacity or infrastructure to monitor every child it places into a sponsor home, it could enter into an information-sharing agreement with the Department of Education (“DOE”) to monitor school attendance for paroled children attending public schools. Local and state education boards regularly track student attendance in schools, and public schools that receive federal funding have the ability to share attendance statistics with DOE under the Federal Educational Rights and Privacy Act (“FERPA”).¹⁴⁷ Although FERPA protects the privacy of students’ education records (including history of attendance) and prevents them from being shared with any individual, agency, or organization without the written consent of parents,¹⁴⁸ the law only specifically affords privacy protections to parents and eligible students.¹⁴⁹ FERPA arguably does not apply to unaccompanied minors who are not in the care of their parents and, as such, would not be an impediment to DOE sharing student records with ORR. This kind of interagency agreement would provide ORR with vital information that could help tip the government off to potential exploitation of children who are not regularly attending class.

Through congressional mandate or interagency cooperation, keeping track of paroled children is the surest way to monitor their wellbeing and prevent them from working in dangerous situations. If the TVPRA were amended to mandate that ORR keep track of paroled children, an information-sharing agreement with DOE would likely be an efficient and cost-effective way to fulfill part of that mandate. Along with ORR’s information-sharing agreement with DOL, an agreement with DOE would enable federal agencies to pool their resources and work together to protect unaccompanied minors, without requiring a massive increase in funding from Congress. In today’s polarized political climate, a targeted amendment to the TVPRA and an interagency agreement are probably the most realistic and practical solutions.

3.Implementing Reporting Requirements for Sponsors

Even if ORR was mandated to monitor every unaccompanied child post-release, its efforts would not be effective without a change in current law to require sponsors and paroled children to report in to the agency. As previously noted, ORR was able to contact only about 81% of sponsor households with thirty-day wellness checks between 2022 and 2023.¹⁵⁰ Mandating ORR to contact children will not ensure contact will be made. Sponsors and children may simply be unreachable. While each sponsor signs an agreement with the federal government promising to provide for a child’s well-being, there is seemingly no requirement that a sponsor prove that they are doing so. For instance, if a sponsor coerces a child to work in order to pay for rent or meals that the sponsor is supposed to provide, ORR will not know unless the child reports the abuse to ORR’s National Call Center. The current system puts the onus squarely on children to voluntarily report their own abuse, which leads to guaranteed underreporting issues.¹⁵¹ A more humane system would require sponsors to check in with ORR at regular intervals to certify that children are being cared for, with an emphasis placed on hearing from the child directly. While such reporting requirements would still be vulnerable to sponsor misrepresentation or noncompliance, an affirmative obligation would exist for sponsors that could deter unsuitable sponsors from applying in the first place.

There may be some question as to whether tracking children post-release is actually necessary, as most children who arrive unaccompanied at the border are fifteen or older.¹⁵² Indeed, the idea of fifteen- and sixteen-year-olds entering the workforce is common in the United States,¹⁵³ but it is important to remember we are talking about a specific subset of particularly vulnerable children. It should not be controversial to say that a child’s focus should be on completing a primary education rather than working in a factory or slaughterhouse. As it stands, children who fail to attend school regularly, regardless of the reason, tend to suffer worse outcomes than those who do.¹⁵⁴ If the federal government is intent on meeting arrivals of unaccompanied children with a humanitarian focus, as it was under President Biden, it must create an immigration system that focuses on providing unaccompanied children with a proper education while keeping them from working in illegal occupations. Knowing where children are and what their condition is post-release is an important step toward meeting those goals and lowering the risk of harm.

4.Enforcement Mechanism Needed

The last major problem with ORR that this Note will address is ORR’s inability to act when sponsors fail to properly care for children. ORR’s role is limited to placing children safely into sponsor homes. It is not a federal law enforcement agency, and it is not statutorily tasked with scrutinizing whether sponsorships are successful. But ORR does require sponsors to agree to provide care for paroled children,¹⁵⁵ and it has an interest in knowing that sponsors comply with those agreements. If a sponsor’s care is lacking, ORR does not have many options to enforce its agreement and ensure that children are getting the help they need. According to former ORR Director Robin Dunn Marcos, ORR’s only recourse in such cases is to refer the matter “to local law enforcement, child protective service[s], and other federal entities as appropriate.”¹⁵⁶ ORR itself has no power to remove a child from a sponsor’s care. While referring allegations of sponsor abuse to state and local agencies seems like a reasonable process, the reliance on third-party entities to make a determination adds complexity to the UAC Bureau system and shifts the burden of protection away from the federal government. Unaccompanied children have distinct needs due to their immigration status, such that being placed into a foster home by a state or local agency may complicate their ability to seek familial help or legal representation during their immigration processes. Rather than relying on state agencies using differing processes to address sponsor abuse or abandonment, the federal government should be responsible for managing each unaccompanied minor to ensure continuity of care throughout the immigration process.

If an ORR sponsor credibly fails to honor their agreement with the federal government, there should be tangible actions that ORR can take, such as reclaiming custody of any child in the sponsor’s care and revoking that sponsor’s right to sponsor other children in the future. Rather than letting paroled children bounce between local, state, and federal agencies in the event of a failed sponsorship, Congress should amend the TVPRA to allow ORR to reassign children to suitable sponsors. Failed sponsorships include not only cases of abuse and exploitation, but also cases of neglect and abandonment in which sponsors help children get out of federal custody but then leave them to fend for themselves after release, which are not always foreseeable situations when vetting sponsors. By allowing or requiring ORR to retake custody of unaccompanied minors, Congress would incentivize ORR to follow sponsor-vetting procedures and find the right match at the outset, while allowing for continuity of contact between paroled children and the agency in the event a child is exploited by their sponsor. Increased continuity would lessen the confusion that unaccompanied children experience throughout the UAC Bureau and task ORR with the responsibility to make the program a success.

B. Inadequacies in FLSA Penalties and DOL Enforcement Capabilities

In 2023, then former ORR Director Dunn Marcos told the House Oversight and Accountability Subcommittee on National Security, the Border, and Foreign Affairs that combatting labor exploitation among unaccompanied children requires “a whole-of-government approach,”¹⁵⁷ intimating that ORR alone cannot solve the issue. Despite facing heavy bipartisan criticism for ORR’s performance, Director Dunn Marcos was correct. The federal government must act in tandem across agencies and government branches to properly safeguard unaccompanied minors. Collaborating with DOE would be a start in terms of monitoring children’s well-being post-release, but ORR cannot also monitor children in the workplace. That task belongs to DOL. While an existing agreement between the agencies exists to tackle possible labor exploitation of unaccompanied minors, congressional action and statutory changes are needed to further reduce the risk of exploitation for unaccompanied minors. This Section will address DOL’s chronic underfunding and FLSA’s insufficient statutory penalties as two issues that can be remedied to reduce the risk of unaccompanied minor exploitation. Further, it will discuss the need for a private cause of action for victims of willful child labor violations to provide children with a remedy for the harm they suffer.

1.DOL’s Chronic Underfunding Increases the Risk that Unaccompanied Minors Go Unnoticed by Federal Investigators

2023 and 2024 marked DOL’s most aggressive enforcement years in the agency’s history in terms of punishing employers who illegally employed child labor.¹⁵⁸ In response to a reported 88% jump in illegal child labor between 2019 and 2023,¹⁵⁹ DOL made clear that the rising rate “is a direct result of [the agency’s] increased emphasis on identifying child labor cases and bringing enforcement actions when [it] find[s] companies violating the law.”¹⁶⁰ The agency’s focus on expanding enforcement actions is welcome news for those concerned about unaccompanied children facing labor exploitation or trafficking, but Congress has left DOL chronically underfunded for years, undercutting WHD’s ability to properly investigate and enforce child labor laws.

In reviewing DOL’s 2024 budget, the number of investigators that WHD employed is near the lowest it has been in the last fifty years, down significantly from the peak level achieved in the 2013 fiscal year.¹⁶¹ According to the agency, reduced staffing levels limit WHD’s ability to “develop impactful cases,” and “[c]ontinuing to operate at these levels poses significant risks to the [agency’s] mission.”¹⁶² As of April 2023, WHD employed a mere 794 investigators¹⁶³ to police 11 million workplaces and enforce laws protecting roughly 165 million workers.¹⁶⁴ The number of investigators that WHD can afford to hire has eroded year-after-year since the agency employed over a thousand investigators per year from 2010 to 2013.¹⁶⁵ WHD’s 2023 operating budget authority of roughly $310 million was a slight increase over 2022’s $299 million,¹⁶⁶ but in terms of inflation-adjusted dollars, those funding figures are roughly even with the amount of money appropriated by Congress back in 2006,¹⁶⁷ demonstrating that Congress has been unwilling to increase its investment in the enforcement of child labor protections for decades. Without adequate funding, WHD cannot ensure it has an adequate number of investigators to look into allegations of illegal child labor.¹⁶⁸

The sheer number of workplaces that WHD is responsible for illustrates the problem of underfunding. If each of WHD’s 794 investigators began individually reviewing one workplace per day for signs of child labor violations, it would take roughly thirty-eight years to complete a single round of investigations of all eleven million workplaces in the United States.¹⁶⁹ Obviously, not every employer needs to be investigated for child labor violations, as many (if not most) do everything in their power to follow the law, but the illustration serves to show how thinly stretched WHD is. Under all of the statutes that WHD enforces, it concluded 20,215 compliance actions in 2023, its lowest total in ten years.¹⁷⁰ Even though its number of closed cases involving child labor violations reached a ten-year high in 2023,¹⁷¹ WHD failed to conclude the same number of compliance actions as the previous year for the sixth straight year.¹⁷² These figures should not be read to assume that federal labor law violations are on the decline. As evidenced by the sharp increase in child labor law violations nationwide, the rate of violations tends to increase in areas in which WHD focuses its attention in the first place.

The only solution to the issue of inadequate enforcement caused by understaffing is proper funding. Both chambers of Congress have made a point to try to address child labor violations by presenting bills with expanded penalties for violators,¹⁷³ but increasing penalties alone will not lessen WHD’s burden as it attempts to enforce child labor laws. Harsher penalties may deter some irresponsible employers and lead them back to a place of compliance, but the agency will likely still be stymied by the same erosion of resources and investigators as has been the case the past ten years. If Congress is serious about addressing the harms that unaccompanied children (and U.S. children) face in abusive workplaces, it needs to fully fund DOL, as the Biden administration requested in its 2024 budget. With full agency funding, WHD would have the capacity to increase child labor investigations, thereby reducing the risk that unaccompanied minors working in some of the United States’ most dangerous workplaces go unnoticed. Without adequate funding, WHD will be continually forced to ration its enforcement capabilities with an ever-shrinking roster of investigators, thus ensuring that labor exploitation of unaccompanied minors goes unnoticed.

2. Current FLSA Penalties Are Inadequate to Deter Bad Actors from Committing Child Labor Law Violations

Even if Congress adequately funded DOL, there would still be an issue of inadequate penalties for child labor law violators. As mentioned in Section III.A, FLSA violators are currently subject to a maximum fine of $15,138 for each child labor violation and can be fined up to $68,801 for each violation that causes the death or serious injury of any employee under eighteen.¹⁷⁴ By assessing fines per violation,¹⁷⁵ WHD is also able to stack penalties against violators depending on the severity of the conduct. But while these fines may be costly, the FLSA penalization scheme often feels woefully insufficient based on the harm suffered.

For instance, a contractor that hired a fifteen-year-old boy to do roofing work on a corporate building was fined $117,175 in civil penalties for FLSA child labor violations, but the harm the boy suffered included falling fifty feet to his death on his first day of work.¹⁷⁶ Proportionally, the civil penalty feels inadequate given that the boy lost his life in a job he should have never been hired for. To make matters worse, the fines collected in such a tragedy only go toward “reimbursement of [WHD’s] costs of determining the violations and assessing and collecting such penalties.”¹⁷⁷ No compensation exists under the FLSA for the victim or their family. Depending on the size of the irresponsible employer cited, a six-figure fine may not be enough of a deterrent for risky behavior.

In lieu of fines, WHD may hold an irresponsible employer accountable by activating the “hot goods” provision of the FLSA, allowing WHD to prevent the sale of any goods made using oppressive child labor.¹⁷⁸ This provision was used in 2023 against a Wisconsin sawmill operator following the death of a sixteen-year-old who was caught in a wood-stacking machine, resulting in the company’s goods being withheld from shipment.¹⁷⁹ Ultimately, in exchange for WHD releasing its hold on the goods, the sawmill operator agreed to $190,696 in civil penalties for numerous child labor violations and to place labels and signage to prevent children under eighteen from using dangerous equipment at the sawmill.¹⁸⁰ The company then fired all employees under the age of eighteen.¹⁸¹ While costly and inconvenient for the sawmill operator, the threat of such fines did not prevent the tragic outcome in the first place.

Given that child labor violations, even those involving the death of children, generally result only in civil monetary penalties that are limited by statute, Congress should revisit the effectiveness of the FLSA’s penalization scheme. The current scheme does not make up for the serious harm children sometimes suffer, nor are the penalties adequate to deter irresponsible actors from using and abusing the labor of unaccompanied children. While many responsible employers will be sure to hire competent counsel to guide their compliance efforts, irresponsible employers may not and might expose children to risk based on a cost-benefit analysis.

To illustrate an extreme case, a slaughterhouse sanitation company was fined more than $1.5 million after WHD investigators found over one hundred children employed by the company cleaning slaughterhouses across the country.¹⁸² Some of these children were as young as thirteen and suffered chemical burns, and DHS investigated possible human trafficking after finding that some of the children were unaccompanied minors.¹⁸³ In addition to chemical burns and working overnight shifts after attending school all day,¹⁸⁴ the children also lost their jobs in response to government fines and saw no compensation from the penalties levied on their employer, aside from the end of their exploitation. While the sanitation company lost some contracts with major corporations¹⁸⁵ and paid a hefty WHD fine, it otherwise showed few, if any, signs of a long-term setback in operations and still employs about 16,500 workers nationwide.¹⁸⁶ The children who were the subject of the violations arguably fared much worse, specifically the unaccompanied minors, as such children are often motivated to work to send money home to their families¹⁸⁷ and probably needed their jobs, however exploitative. Moreover, if the sanitation company properly terminated the unaccompanied minors in its employ, the unaccompanied minors were likely left with no recourse whatsoever, as the FLSA provides no private cause of action for victims of child labor violations.

While this Note assumes that most employers want to do the right thing and do not wish to exploit children, irresponsible or negligent actors do exist. So, what statutory fixes can be made to increase deterrence? As noted earlier, several bipartisan bills have been proposed in Congress in recent years to strengthen the penalties for child labor violations.¹⁸⁸ An interesting bill advanced by Senators Brian Schatz and Todd Young, the Stop Child Labor Act,¹⁸⁹ proposed to increase the maximum FLSA fines to $132,270 for common child labor violations and $601,150 for violations that result in serious injury or death to a minor.¹⁹⁰ It also proposed a private cause of action for exploited children to seek up to $250,000 in punitive and compensatory damages in federal court.¹⁹¹ By proposing increased fines and a private cause of action, the senators’ bill addressed two issues that make current labor law so ineffective as a deterrent for irresponsible employers, thus serving as an intriguing model for how labor law could evolve to safeguard unaccompanied minors.

First, FLSA fines are currently far too low to deter many employers. Even the sizeable $1.5 million fine mentioned above can be a drop in the bucket for many companies. The sanitation company that absorbed the $1.5 million fine was bought for close to $1 billion in 2014¹⁹² and sold for an undisclosed amount in 2018 to a private equity firm with a January 2025 market cap of $210 billion.¹⁹³ While most employers are responsible and seek to avoid child labor violations, irresponsible actors may simply conduct a cost-benefit analysis and turn a blind eye to potential child labor violations in their workplaces if the payoff is high enough. There is also an issue of companies failing to recognize an appreciable risk of harm to children when utilizing staffing agencies or contractors who place children in company workplaces.¹⁹⁴ To have any kind of a deterrent effect, FLSA fines need to be high enough to convince irresponsible employers to seek full compliance with the law. Otherwise, if the cost is negligible, irresponsible actors will simply build potential penalties into their business models and accept the risk of getting caught. The Stop Child Labor Act proposed increasing the minimum and maximum fines nearly tenfold, with penalties increasing annually in lockstep with the consumer price index for all urban consumers.¹⁹⁵ It is hard to say whether these increases would be enough to properly incentivize every irresponsible actor to comply with the law or too punitive for responsible employers who mistakenly violate the law, but increases of any kind are a start and are recommended by this Note.¹⁹⁶

Second, granting a private cause of action to children who suffer exploitation may be more effective than assessing WHD penalties in remedying the harm caused, provided that responsible employers are protected from unnecessary and unfair litigation. The Stop Child Labor Act’s inclusion of liability in the form of punitive and compensatory damages for child victims is a model that could help increase deterrence and provide an avenue for unaccompanied minors to seek justice, an avenue which does not currently exist. As seen earlier, employers who are fined by WHD for child labor violations sometimes terminate all minors in their employ, even children who are not the subjects of the violations. Due to the particular needs of unaccompanied minors, they may be incentivized to work, even if the work is exploitative. Thus, losing a job, even an exploitative one, can harm these children more than it helps at times. In such a situation, government action essentially victimizes unaccompanied minors further, exposing them to a vicious cycle in which they are exploited in a job that they need, fired when DOL cracks down, and then forced to find another available job, even if it too is dangerous. Providing such children with a cause of action would give them a remedy to their individualized harm. Moreover, litigation can enable facts to come to light that demonstrate the true harm that unaccompanied minors at times suffer.

The federal government will soon be able to look to Colorado to see whether a private cause of action is viable. Colorado added a private cause of action to its labor code for aggrieved children who suffer child labor violations, which became effective on January 1, 2025.¹⁹⁷ Depending on the violation suffered, a child can recover anywhere from $500 to $65,000.¹⁹⁸ This scheme provides an outlet for exploited children to seek redress where they otherwise may not have been able to. It is worth noting, however, that such a system could be abused by children who lie about their ages, thus burdening responsible employers. Unaccompanied minors seeking work are not immune to misrepresenting their ages to employers. Importantly, Colorado’s additions to its labor code protect responsible employers by allowing actions against an employer to be waived if a minor intentionally misleads the employer about their age.¹⁹⁹ Further employer protections may be needed to avoid incentivizing frivolous litigation, such as limiting an employer’s liability in situations in which the employer was merely negligent. A delicate balance must be struck so that unaccompanied minors can seek justice and compensation without employers bearing an undue burden by having to litigate unnecessarily.

Increased fines and the availability of a private cause of action for exploited minors, with some guardrails to protect responsible employers, would add an appropriate level of deterrence to existing law and provide an avenue for unaccompanied children who are wronged to actually be compensated for their harm. Without strong deterrents, the rate of child labor violations nationwide may continue to increase, leaving unaccompanied minors at an increased risk of exploitation. At a minimum, Congress must properly fund DOL so that WHD can continue its important mission of uncovering exploitation of unaccompanied minors in the workplace.

C. Summary of Solutions

To reduce the risk of unaccompanied minors being exploited in U.S. workplaces, a number of measures need to be taken. As discussed in Section IV.A, Congress should first ensure that ORR never waives background checks for sponsors. Next, Congress should amend the TVPRA to require ORR to monitor children formerly in its custody and record school attendance and employment statistics for unaccompanied children, as well as qualitative data about each child’s experience with their sponsor. This monitoring can be accomplished by ORR increasing post-release services for all children and creating an information-sharing agreement with DOE to track school attendance among unaccompanied minors. Moreover, regulations should be implemented to require sponsors and unaccompanied children placed into their care to report to ORR periodically. To meet the mission of monitoring hundreds of thousands of paroled children, Congress will have to direct proper funding and resources to ORR, as well grant ORR the statutory authority to reclaim custody and find new sponsor homes for children whose sponsors fail to care for them.

Addressing ORR’s issues alone is not sufficient. A whole-of-government approach is required, whereby Congress must properly fund DOL so it can increase enforcement actions against irresponsible parties engaging in illegal child labor. Increased enforcement can be accomplished only by properly staffing WHD, which requires DOL to be fully funded. Additionally, Congress should act to increase the penalties that DOL can assess for child labor violations and create a cause of action for victims of illegal child labor, provided that any cause of action has proper protections built in for responsible employers. If implemented as a comprehensive set of reforms, these solutions will minimize the risk of unaccompanied children being victimized and exploited for their labor.

CONCLUSION

This Note sought to identify the gaps in federal immigration law and labor law that increase the risk of labor exploitation for unaccompanied minors who are placed in sponsor homes in the United States. While immigration law and labor law are usually looked at separately, this Note set out to recommend a comprehensive set of measures that could be taken in both areas of law to meet the common goal of mitigating the risk of harm that unaccompanied minors face due to their unique circumstances.

In making these recommendations, this Note examined a series of overlapping statutes and policies that are either structurally unsound or undermined by congressional inaction and underfunding. The TVPRA’s text and ORR’s approach to child placement are too relaxed and put unaccompanied children at an increased risk of exploitation. The TVPRA mandates government action only while unaccompanied minors are in ORR custody and relieves the government of any responsibility once children are placed into sponsor homes. Moreover, ORR does not have the resources or infrastructure available to effectively monitor every child that it releases from its custody. Similarly, while the basic structure of the FLSA is sound, the statute is undermined by relatively weak penalties and provides no avenue for child victims to seek compensation for the harm they suffer. Moreover, although Congress has signaled that it wants child labor protections to be enforced, it has underfunded the agency responsible for upholding child labor laws for years, leaving DOL understaffed and unable to meet its critical mission of holding irresponsible employers accountable and ensuring a safe workplace for children and adults alike.

Protecting unaccompanied children from labor exploitation cannot be accomplished by addressing only one set of laws or a single federal agency. A whole-of-government approach is needed whereby the legislative branch addresses gaps in current law and the executive branch uses all of the levers at its disposal to combat the issue. Legal adjustments in both immigration law and labor law and congressional funding are needed to empower ORR and DOL to fulfill their missions, and interagency agreements should be entered into and maintained in order to safeguard unaccompanied minors through their entire journey with the UAC Bureau. In the immigration arena, Congress should amend the TVPRA to require ORR to monitor children who are released from government custody until their immigration matters are settled or they age out of the UAC Bureau, and ORR must be given the authority to reclaim custody and find new sponsor homes for children who are being abused or exploited by their sponsors. ORR should also find creative ways to monitor children in lieu of increased federal funding, such as entering into an information-sharing agreement with DOE. Finally, sponsors and unaccompanied children should be required to check in with ORR as a means to demonstrate that the child is being properly cared for.

Once children have been released from ORR custody, DOL is uniquely positioned to safeguard them from employer exploitation. But DOL needs to be properly funded by Congress to be able to adequately monitor and respond to reports of illegal child labor. Understaffing has hindered DOL’s ability to investigate illegal child labor, which puts unaccompanied minors at a greater risk of harm in dangerous workplaces. While an information-sharing agreement with ORR to identify potential exploitation or trafficking amongst unaccompanied minors is a good start, DOL needs help from Congress regarding enforcement. Congress should first update the FLSA to ensure that financial penalties are high enough to act as a proper deterrent against illegal child labor. Congress should also consider providing victims of illegal child labor with a private cause of action to seek individual justice, so long as proper protections exist to prevent frivolous litigation against responsible employers.

Unaccompanied children are a particularly vulnerable group, made even more so by the shifting political winds in the United States. With the current gaps in federal law and new leadership in the executive branch every four years, unaccompanied minors are falling through the cracks and ending up in prohibited workplaces. No single agency or statutory scheme is capable of protecting each child through every step of their immigration journey. But through a collaborative and whole-of-government approach, the United States can address the shortcomings in federal immigration and labor law to properly mitigate the risk that unaccompanied children face exploitation. If Congress truly cares about children being exploited in the workplace, it should not hesitate to act by amending the TVPRA and FLSA and properly funding ORR and DOL. Congressional critiques of these agencies will not fix the structural problems hampering their performances; only congressional action can do that. The federal government has properly committed itself to protecting unaccompanied children, but it is long past time that it lives up to that commitment.

98 S. Cal. L. Rev. 761

Download

Charlie Murphy*

* Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. 2011, Emerson College. Thank you to Jeremy Gartland, Isabelle Yuan, Michelle Solarczyk, and the staff of the Southern California Law Review for their expert edits and wonderful feedback, and to Professor Rebecca Brown for her guidance and tutelage.

I especially want to thank Professor Henna Pithia and my International Human Rights Clinic classmates. Advocating for the rights of vulnerable and politically unpopular groups requires bravery and sacrifice, and the passion that Professor Pithia and my IHRC family brought to their work inspired me in writing this Note and left me in awe.

Wage Theft in Los Angeles: Evaluating the Deputization of Worker Centers as an Enforcement Measure

April 2025April 2025Kalysa To*

In 2023, Los Angeles County was called the “wage theft capital of the nation,” with up to $28 million stolen from workers every week. This form of theft especially places low-income workers at risk; 80% of low-wage Los Angeles County workers reportedly experience wage theft. In spite of this vast problem, however, government agencies tasked with the enforcement of wage theft have been overworked and underfunded. The under-resourcing of government agencies results in short-staffed labor offices, prolonging the time it takes to resolve wage theft claims and increasing the likelihood that victims of wage theft either drop their claim or fail to raise a claim at all.

To address this problem in Los Angeles City, deputization by the Los Angeles Office of Wage Standards could extend authority to worker centers—community-based workers’ rights organizations—to support the enforcement of wage theft. The Los Angeles Municipal Code could grant worker centers the power to advise workers on their rights, inspect employer records for wage violations, and ultimately expand the enforcement of the issue and thereby reduce wage theft. This Note provides the first analysis of deputization within this space and at this depth, introducing new legal analysis and proposing a new enforcement tool with which to address the massive issue of wage theft.

This Note argues that the deputization of worker centers fits within Los Angeles’s existing statutory framework and would be a constitutional delegation of the legislature’s power under the California Constitution. In so doing, this Note makes recommendations to bolster the constitutionality of the deputization of worker centers by the Los Angeles Office of Wage Standards so that more resources can be put in place to reduce the rampant wage theft problem throughout the city.

Introduction

Wage theft is a pervasive problem in the United States, affecting over two million workers¹ and costing as much as $50 billion in lost wages each year.² Wage theft is one of the most common crimes committed in the United States,³ with employers stealing more wages from workers each year than is stolen in “bank robberies, convenience store robberies, street and highway robberies, and gas station robberies combined.”⁴ A “form of fraud” that “occurs when employers do not pay their workers” what they are legally entitled to, wage theft encompasses a broad range of employers’ activities that deprive workers of earned compensation.⁵ Victims of wage theft include workers who are (1) paid less than the legally mandated minimum wage (affecting almost two million workers in the United States),⁶ (2) misclassified as “independent contractors” and not provided with the legal rights employees are entitled to,⁷ or (3) not properly paid for overtime or provided with meal breaks.⁸

The problem is particularly prevalent in Los Angeles. In 2023, the Los Angeles Worker Center Network called Los Angeles the “wage theft capital of the nation,” with $26 to $28 million stolen from workers every week in Los Angeles County.⁹ The study also found that workers who stand up for their rights against wage theft place themselves at risk of retaliation, facing consequences such as “reduced hours, increased workload, firing and threats of deportation.”¹⁰ In addition, a 2024 report found that the Los Angeles metropolitan area lost an average of $1.6 to $2.5 billion a year between 2014 and 2023 through minimum wage violations alone,¹¹ and that over 7% of workers were paid below California’s state minimum wage.¹²

Recent findings about the prevalence of wage theft in Los Angeles have led lawmakers to introduce new legislation to ameliorate the problem.¹³ In April 2024, California’s Labor Commissioner’s Office created the Workers’ Rights Enforcement Grant to provide a new funding source targeted at deterring wage theft and other workplace exploitations.¹⁴ The Workers’ Rights Enforcement Grant awards grants to California public prosecutors to “develop and implement a wage theft enforcement program.”¹⁵ The grants are to be used to fund staff salaries and benefits; $8,550,000 was awarded during the first grant cycle in 2024–2025 and another $8,550,000 will be awarded between 2025–2026, with a maximum grant of $750,000 per applicant.¹⁶

While there have been recent laws targeting wage theft, laws aimed at remedying this issue have been in existence for several years. Various administrative agencies are tasked with the enforcement of employment laws, including determining whether workers are being paid the legally mandated minimum wage, whether employees are properly compensated for overtime worked, and whether employers have violated other employment laws. On the federal level, the Department of Labor’s Wage and Hour Division monitors the enforcement of laws including the federal minimum wage.¹⁷ On the state level, California’s Labor Commissioner’s Office (known formally as the Division of Labor Standards Enforcement) combats wage theft and protects workers from retaliation.¹⁸ On the local level, some cities have established agencies that enforce local laws and ordinances. Within the city of Los Angeles, the Office of Wage Standards “is responsible for implementing and administering the guidelines of the Los Angeles Minimum Wage and Minimum Wage Enforcement Ordinances.”¹⁹

However, agencies tasked with the enforcement of employment and labor laws have been “chronically” underfunded.²⁰ A 2018 report by Politico found that, in fifteen states, 41% of lost wages were unrecovered.²¹ This underenforcement comes even as employers’ violations of these laws grow rampant. A 2021 report published by the nonprofit advocacy group National Employment Law Project found that, in 2019 alone, workers earning less than $13 an hour were prevented from recovering over $9.27 billion in stolen wages because of employer-forced arbitration.²² In spite of this, the nonpartisan Economic Policy Institute (“EPI”) found that, between 2017 and 2020, only “$3.24 billion in stolen wages was recovered for workers” nationwide.²³ The underenforcement of minimum wage laws is a problem in California, where workers were owed $280 million in unrecovered claims from unpaid wages in 2017.²⁴ And these claims arise only when workers report these wage theft violations; underenforcement of these laws may mean there are a great number of workers who suffer wage theft but either choose not to report a violation or are not sufficiently informed of their rights to be aware that a violation has occurred.²⁵

The inefficiency of agencies enforcing wage theft has also become apparent in recent years. A report by the California Legislative Analyst’s Office found that, although state law requires wage claims to be adjudicated within 120 days, the average claim took nearly 400 days to be adjudicated in 2018.²⁶ These long wait times disadvantage victims of wage theft by discouraging affected workers from filing claims, increasing the likelihood that the worker will drop their claim before resolution, and potentially compelling workers “to settle their claims for smaller amounts.”²⁷

Wage theft has far-reaching and pernicious effects. Wage theft can cause economic insecurity by introducing financial uncertainty and causing workers to fear the repercussions of speaking up.²⁸ In addition, a 2014 study from a nonprofit public health organization found that wage theft reduces the income that is necessary to provide for an employee’s family, which gives way to downstream effects: employees’ children are “less likely to succeed in school,” and workers’ increased stress causes them to feel more anxious and experience poor mental and socioemotional health.²⁹ Wage theft also has effects on society at large, such as creating unfair competition with businesses that do comply with the law, increasing the need for safety-net and welfare programs, and “reducing needed tax revenues.”³⁰

Given the seriousness of wage theft and the inadequacy of its current enforcement, deputization offers a solution. Deputization would endow private citizens with the authority extended to governmental wage theft authorities. The rights granted to private citizens could vary widely, ranging from entering work sites and advising workers of their rights to accessing employer records to inspect wage violations. However, more rigorous embracing of deputization would lead to more momentum for addressing the enforcement of wage and hour law and decreasing the instances of wage theft suffered by workers.

I. Deputization

Despite the enormity of the wage theft problem in the U.S., the enforcement and containment of the issue is limited. Victims of wage theft currently have a few potential avenues of recourse: (1) file a complaint with the relevant federal, state, or local labor agency;³¹ (2) file a private lawsuit under the federal Fair Labor Standards Act (“FLSA”); (3) file a private lawsuit under state or local wage and hour standards; or (4) do all three.³² Filing a private lawsuit is burdensome and sometimes out of the question for low-income and marginalized workers (whom wage theft disproportionately affects and who may face difficulty finding attorneys interested in taking low-dollar cases).³³

However, leaving the enforcement of wage theft up to the designated government entities is not a solution either—most state and local governments lack sufficient resources to investigate and enforce workplace standards.³⁴ In recent years, the California Labor Commissioner’s office has reportedly been “too short-staffed to do its job,” an issue that was exacerbated by the COVID-19 pandemic and resulting labor shortage.³⁵ In 2023, employees at the California Labor Commissioner’s office cited a 30%–40% vacancy rate in the office and reported that these vacancies caused employee burnout, stress, lowered morale, and sometimes the decision to leave the office altogether.³⁶ A high vacancy rate, overworked staff, and the resulting “exodus of talented workers” result in an office that is poorly equipped to handle the sheer volume of wage theft claims.³⁷

One way to address this problem is to deputize private citizens to provide them with the same authorizations that a governmental entity is granted under relevant statutes. Deputized citizens could help the agency more effectively use its authority to enforce the laws among a greater number of affected employers and employees. In particular, private citizens may be deputized to investigate wage theft such that they could enter worksites, speak with employees, and inspect employer records. Sharing the responsibilities of wage theft enforcement with private citizens would reduce the workload of government employees, allowing them to focus their resources on the other stages of resolving a wage theft claim, such as settlements, hearings, and recommendations.

A. What Is Deputization?

Deputization occurs when a principal party “empowers an agent” (“deputizes” the agent) to perform some agreed-upon function,³⁸ authorizing the agent to act on the principal’s behalf in limited ways.³⁹ Throughout history, deputization has taken many forms and currently exists in many different contexts.⁴⁰ The judiciary has engaged in deputization; as early as the 19th century, federal courts deputized employer-hired private security personnel to enforce federal injunctions against striking workers.⁴¹ Today, the deputization of private attorneys by local prosecutorial agencies to head criminal prosecutions is still common.⁴² The federal government has also deputized state and local officials to enforce laws; for instance, the legislature authorizes state and local law enforcement agencies to perform immigration law enforcement functions through the Immigration and Naturalization Act.⁴³

In addition to deputization of government officials, existing examples of deputization also involve private individuals. The Private Attorneys General Act (“PAGA”) is a model of deputization which gives authority to private citizens under California law,⁴⁴ meaning that an official government entity is not needed to litigate these violations. This statute “deputizes” private citizens by “authoriz[ing] aggrieved employees to file lawsuits to recover civil penalties on behalf of the State of California for Labor Code violations.”⁴⁵ PAGA was passed in response to deficiencies in the state’s ability to “effectively investigate and prosecute” labor law abuses,⁴⁶ especially as there was an increasing “disparity between California’s large labor force” and the “finite” resources of California’s enforcement agencies.⁴⁷ The statute essentially deputizes private citizens to “step into the shoes” of the state and prosecute employers’ statutory labor violations.⁴⁸ In allowing private citizens to act as “attorneys general,” PAGA enables these private citizens to “recover civil penalties for Labor Code violations” committed against them, with the official enforcement agencies retaining “primacy” over the private enforcement efforts.⁴⁹ PAGA has been successful in recovering the stolen wages of employees, collecting “more than $88 million from lawbreaking corporations in 2019.”⁵⁰

Despite PAGA’s achievements and enforcement measures against lawbreaking corporations, PAGA has a large shortcoming: it only allows employees who have experienced or are experiencing the alleged Labor Code violation to bring the action. Aggrieved employees must bring actions “on behalf of the employee and other current or former employees.”⁵¹ Although PAGA permits employees to bring suit on behalf of other employees and form a class action–like group of employees as plaintiffs,⁵² many of these cases have been called “unmanageable” by courts when there are “a large number of allegedly aggrieved individuals who would require a multitude of individual assessments to prove liability.”⁵³ To proceed on the case following an “unmanageability” ruling by the court, the plaintiff must demonstrate liability of thousands of individually aggrieved employees,⁵⁴ which poses an immense obstacle for plaintiffs.

In addition to the barriers employees face when attempting to file PAGA suits, there may also be employees who are eligible to file a PAGA suit but simply do not do so. To commence an action, an aggrieved employee must give notice of the alleged violation to the California Division of Occupational Safety and Health, stating the provisions that they allege their employer violated and “the facts and theories support[ing] the alleged violation.”⁵⁵ This lengthy process may exclude employees who are both unfamiliar with the administrative process and with the law. Furthermore, not all employees who are “aggrieved” may be aware that their employer is violating a law or willing to file a suit through PAGA.

While PAGA has expanded the accessibility of enforcement remedies to aggrieved employees, some localities have also arranged for deputization of community organizations to enter work sites and perform outreach to inform workers of their rights. For example, the Santa Clara County Office of Labor Standards Enforcement (“OLSE”) has partnered with the Fair Workplace Collaborative (“FWC”), a coalition of dedicated community organizations and advocates who directly engage with employees through flyering, training, and legal services.⁵⁶ The FWC is made up of several community-based organizations, including the Pilipino Association of Workers & Immigrants,⁵⁷ the Vietnamese American Roundtable,⁵⁸ and the Day Worker Center of Mountain View,⁵⁹ among other organizations.⁶⁰ According to Ruth Silver-Taube, a member of Santa Clara County’s FWC and Supervising Attorney of Santa Clara County’s OLSE Legal Advice Line, as of December 2023, the FWC is made up of about twenty-five people, three of whom are attorneys; the others work through the organizations that compose the FWC.⁶¹ Since 2018, the FWC has formed yearly contracts with the Santa Clara County OLSE that authorize FWC members to enter work sites and perform outreach, advising employees of their rights.⁶² Bearing a Santa Clara County badge, the FWC members go into work sites and speak with employees to assess whether they have experienced wage theft.⁶³ The contracts also set out deliverables the FWC must achieve, and require the FWC to provide monthly updates and regularly check in with the OLSE regarding its progress on the deliverables.⁶⁴

The authority that the FWC gains through deputization comes from Santa Clara County’s Food Permit Enforcement Program.⁶⁵ The Program enforces wage theft judgments against employers by suspending food facility permits from businesses who have “outstanding wage theft judgments” from the state.⁶⁶ Each year, the FWC is provided a list of Santa Clara County food vendor employers (employers who require health permits) and the FWC enters those work sites and speaks with its employees.⁶⁷ The FWC speaks with employees to assess whether they may have experienced wage theft or whether they may be facing abuse in the workplace—asking them whether they have received paychecks, whether they have been compensated for overtime, and whether there is violence in their workplace.⁶⁸ But the outreach efforts of the FWC are not limited just to food vendor employers; they can and have entered workplaces and spoken with employees outside of the food industry.⁶⁹

In addition to checking on worksites and speaking with employees, the contract between FWC and Santa Clara County also requires FWC to perform outreach efforts. As a result, the FWC organizes and presents training programs, during which it educates workers on their rights in the workplace.⁷⁰ Silver-Taube, who leads these trainings, hosts at least one training a month, each tailored to the different organizations making up the FWC.⁷¹ In total, her training efforts have reached more than one hundred workers in one year, as she has hosted trainings in conjunction with the Pilipino Association of Workers & Immigrants, the Vietnamese American Roundtable, and the Day Worker Center.⁷²

Silver-Taube also supervises the Santa Clara County’s OLSE Legal Advice Line, another outreach effort that has emerged from the partnership between FWC and Santa Clara County OLSE.⁷³ Offered in six different languages, the advice line helps workers who have questions about their rights or are seeking legal advice.⁷⁴ Silver-Taube estimates that, in about 90% of the calls, workers identify some actionable violation that their employer committed.⁷⁵ The three FWC lawyers can file claims on behalf of employees who suffer an actionable violation or can, alternatively, refer these employees to other attorneys to pursue their claims.⁷⁶

Deputization under the Santa Clara OLSE and FWC partnership benefits employees, but the work that the partnership is authorized to perform is limited. The partnership’s members may speak with employees but cannot access employer records or more thoroughly investigate wage theft. In Los Angeles, deputization is even more constrained, as no program similar to the Santa Clara OLSE and FWC partnership currently exists. Initiating deputization in Los Angeles as well as expanding the deputized functions so that private individuals can perform enforcement actions like inspecting employer records could broadly bolster wage theft enforcement.

The enormity of the wage theft problem in Los Angeles City could be addressed by deputizing private citizens to enter work sites and inform workers of their rights as well as inspect employer records to determine whether wage theft has occurred. Deputization is effective and important for several reasons. First, deputization expands the quantity of people authorized to perform an important government function. State enforcers have said that having a “million eyes on the ground” in the form of private citizens has been especially successful in deterring unlawful action.⁷⁷ Additionally, deputizing private citizens to enter work sites and investigate wage theft violations would increase the number of people actively working to disincentivize employers’ illegal actions, increasing the likelihood that victims of wage theft could become more knowledgeable of their rights and learn how to seek redress.

B. Who Would Deputize?

1. California Bureau of Field Enforcement

As an investigator of minimum wage and overtime claims and a subsection of California’s Labor Commissioner’s Office, California’s Bureau of Field Enforcement (“BOFE”) could deputize private citizens to perform investigations of wage theft.⁷⁸ The BOFE investigates and enforces statutes covering minimum wage, overtime, “workers’ compensation insurance, child labor, cash pay, unlicensed contractors, [and] Industrial Welfare Commission orders.”⁷⁹ The BOFE investigates “on behalf of all affected workers,” meaning that when workers file a complaint, the BOFE performs site-wide investigations and accordingly issues citations for violations it discovers.⁸⁰ When a violation is discovered, the BOFE collects and distributes unpaid wages to affected workers, but keeps the remaining penalties and fines to account for the costs incurred while performing the investigation.⁸¹

Although the BOFE has not deputized people to perform labor investigations, it has formed partnerships with workers’ rights advocacy groups, including worker centers.⁸² Formed in 2016, the California Strategic Enforcement Partnership “is a collaboration between the Labor Commissioner’s Office, the National Employment Law Project, and 14 workers’ rights and legal advocacy organizations.”⁸³ The partnership was formed to boost California’s efforts against wage theft, and partnering with worker organizations was meant to encourage a culture of compliance with labor law.⁸⁴

The BOFE “investigates reports of widespread labor law violations by interviewing workers, inspecting workplaces, issuing citations for violations, and collecting unpaid wages for distribution to workers.”⁸⁵ In the 2015–2016 fiscal year, the BOFE conducted 2,424 inspections and assessed over $81 million in wages and penalties. The BOFE engages with worker organizations through the California Strategic Enforcement Partnership by (1) meeting regularly in teams to share knowledge, identify and address wage theft, and discuss emerging complaints, (2) convening annually to build skills and relationships throughout the partnership, and (3) facilitating monthly conference meetings to share strategies and cross-train on tools for labor law enforcement.⁸⁶ Worker centers support workers throughout “every step of the investigation process”⁸⁷ and can convince “groups of workers to testify in an investigation.”⁸⁸

The California Strategic Enforcement Partnership recognizes the importance of worker centers and labor organizations in the fight against wage theft. However, there may be untapped potential behind these worker organizations because they have not been deputized such that they can act with the same authority as the BOFE when it comes to enforcement of wage theft. According to a BOFE 2020–2021 fiscal year report, the department collected around $29 million across wages, penalties, and interest from employers who committed violations.⁸⁹ Although this number indicates that the BOFE has made strong enforcement progress, it still has a long way to go. This number encompasses several violation categories that the BOFE is responsible for (including wage theft categories like overtime and misclassification, but also adding up outside categories like workers’ compensation and child labor).⁹⁰ However, California’s Legislative Analyst’s Office found that, in 2017, workers alleged a total of $320 million in unpaid wages alone, revealing a massive disparity.⁹¹ Expanding the BOFE’s partnership with worker centers such that worker centers are deputized with legal authority to investigate wage theft—entering work sites, inspecting employer records, interviewing employees, and ultimately identifying wage theft—could increase the BOFE’s capability to discover and address wage theft violations.

Los Angeles Office of Wage Standards

The Los Angeles Office of Wage Standards (“OWS”) is also well-positioned to deputize private citizens to combat wage theft within the city of Los Angeles. The OWS is a city government agency within the Bureau of Contract Administration of the Department of Public Works.⁹² The agency “enforces minimum wage, paid sick leave (PSL), and ban-the-box requirements for all employees who perform work in the City of Los Angeles.”⁹³ In the city of Los Angeles, the OWS is authorized to investigate violations of wage and hour laws.⁹⁴ Pursuant to the Los Angeles Municipal Code (“LAMC”), the OWS is statutorily authorized to enforce and implement several ordinances governing employment law in Los Angeles, including the Minimum Wage Ordinance (“MWO”),⁹⁵ the Fair Work Week Ordinance,⁹⁶ and the Hotel Worker Ordinance⁹⁷ (among others).

The OWS exists within the broader context of federal and state law. The federal government established standards for minimum wage, overtime pay, and employment standards for employees in the enactment of the FLSA in 1938.⁹⁸ The FLSA sets many wage and hour standards for employees, including restricting the employment of minors,⁹⁹ and establishing recordkeeping mandates that require employers to display an official poster outlining the requirements of the FLSA¹⁰⁰ and to keep employee time and pay records for at least three years.¹⁰¹ In addition, the FLSA offers overtime protection; the statute mandates that covered, nonexempt employees receive overtime pay for hours worked over forty per workweek at a rate of least one and one-half times the regular rate of pay.¹⁰²

The FLSA also governs the federal minimum wage, which promises employees a baseline pay for hours worked.¹⁰³ However, the federal minimum wage has remained $7.25 since 2007,¹⁰⁴ which, as inflation increases, is becoming less of a livable wage for earners. Many states have filled this gap by raising their state minimum wage well above the federal minimum wage. Effective January 1, 2025, California’s minimum wage was set at $16.50 per hour for all employers.¹⁰⁵ Within California, the city of Los Angeles updates its minimum wage annually based on the Consumer Price Index (“CPI”) for Urban Wage Earners and Clerical Workers (“CPI-W”) for the Los Angeles metropolitan area, which is published by the Bureau of Labor Statistics.¹⁰⁶ As of July 1, 2024, the minimum wage in the city of Los Angeles for all employers is $17.28 per hour¹⁰⁷ The Los Angeles Minimum Wage Ordinance, codified in Article 7 of Chapter XVIII of the Los Angeles Municipal Code, establishes that the City will pay higher than the California-mandated minimum wage and provide sick time benefits to employees.¹⁰⁸ The OWS is tasked with bearing administrative responsibilities under the MWO.¹⁰⁹

As of December 2023, the OWS has one Division Head and thirty employees.¹¹⁰ It is comprised of three sections: Outreach and Information (eight employees), Investigation and Compliance (sixteen employees), and Fair Work Week (six employees).¹¹¹ The first two sections (Outreach and Information and Investigation and Compliance) are, collectively, tasked with effectively implementing and enforcing the MWO.¹¹² The Investigation and Compliance Section “investigates complaints of wage underpayment” and sick time violations to assess where penalties may be applicable.¹¹³ The Information and Outreach Section informs businesses and employees about legal minimum wage and paid sick leave requirements, while helping with community outreach.¹¹⁴ On the outreach side, the OWS has attended outreach events, hosted training sessions for government staff, and made over 241 million media impressions since 2016.¹¹⁵

Within its investigation wing, from July 2016 to September 2023, the OWS received 1,084 complaints and closed 785 of them, collecting $540,600 in total penalties.¹¹⁶ The OWS’s investigation process generally follows five steps: (1) the complaint is vetted to ensure it falls within the OWS’s “jurisdiction and employee requirements are met”; (2) “the case is assigned to an investigator and additional information is obtained”; (3) “the employer is notified of the investigation and relevant records are requested”; (4) “the records are analyzed to determine whether the employer is complying with the MWO requirements”; and (5) “the case is then submitted to management for an evaluation of the investigative findings and recommendations.”¹¹⁷

In addition to the MWO, the third section of the OWS bears administrative responsibilities for the Fair Work Week Ordinance (“FWWO”), which provides a more predictable work schedule for retail workers.¹¹⁸ The FWWO requires that employers provide work schedules to employees before they begin employment.¹¹⁹ The FWWO also establishes “Predictability Pay,” which requires that employers compensate employees “with one additional hour of pay” for each change to a scheduled date, time, or location that either “does not result in loss of time to the” employee or “results in additional work time exceeding fifteen minutes.”¹²⁰ There are some exceptions to this predictability pay requirement, such as if the employee initiates the work schedule change or if the employer’s operations are compromised due to force majeure.¹²¹ However, in general, the FWWO aims to establish a more predictable work schedule with which retail employees can more accurately predict the sizes of their paychecks.

Furthermore, the LAMC’s Los Angeles Office of Wage Standards Ordinance, which was effective as of April 1, 2023, explicitly sets forth the OWS’s authority to enforce violations of wage theft and sick time benefits under the Los Angeles MWO and to enforce the rights and benefits provided to retail employees by the FWWO.¹²² The Los Angeles Office of Wage Standards Ordinance requires employers to retain employee records for at least four years and allows the OWS to access these records to monitor compliance with the MWO.¹²³ The Los Angeles Office of Wage Standards Ordinance also gives the OWS authority to investigate employers for possible violations of the Los Angeles MWO, Sick Time Benefits, and FWWO.¹²⁴

Given the vast amount of authority provided to the OWS to enforce wage and hour laws in Los Angeles, deputized private entities through this division could expand the OWS’s ability to investigate and enforce LAMC ordinances. Sharing the OWS’s investigative power with private individuals would enable them to broaden their capabilities, allowing them not only to identify more instances of illegal employer action, but also to seek remedies for employees who have been victims of wage theft.

The OWS serves as a robust starting point to analyze the potential of deputization within the City of Los Angeles. Because it exists within a defined statutory framework, the OWS’s legal structure can be examined to determine the possibility of deputization. Furthermore, because the OWS governs a city, it can pave the way for potential future applications to the BOFE and evaluations of deputization on a broader, statewide level.

C. Who Would Be Deputized?

There have not been any legal restrictions placed on who can be “deputized,” and previous examples of deputization in the law have provided for both private individuals (as in PAGA)¹²⁵ and nonprofit organizations (as in the worker centers in Santa Clara County’s FWC)¹²⁶ to be deputized. Since one of the benefits of deputization towards wage theft is to expand enforcement and ensure that more workers know about their rights and can seek redress when they have experienced wage theft, deputizing an organization would be more helpful than deputizing an individual. Organizations, which are generally equipped with more resources, can train their members to provide outreach and education to workers and can also gain rapport with workers so that workers have a resource to turn to.

Unions are organizations that have traditionally been thought of as advocates for workers’ rights, but they have seen “a significant decline in membership” in recent years.¹²⁷ The union membership rate was 10.0% in 2023.¹²⁸ The 2023 rate was very similar to the 10.1% rate in 2022, which was “down from 10.3% in 2021” and was the lowest union membership rate since 1983, the earliest year with comparable data on record.¹²⁹ Since the low union membership rate indicates that fewer workers can seek workplace protection through a union, a different source of workplace protection is needed. To meet this growing need, worker centers have become one of the most important means through which change is sought within the workplace.¹³⁰

Worker centers are nonprofit, community-led organizations aimed especially at supporting low-wage and immigrant workers.¹³¹ There are hundreds of worker centers throughout the United States, and California has forty-seven worker centers—more than any other state.¹³² Worker centers’ advocacy work ranges from lobbying and community organizing to direct engagement and research.¹³³ Some key characteristics define worker centers: (1) they mainly focus on low-income immigrant workers from a particular occupation or industry or from a particular ethnic group; (2) they place special focus on “organizing and leadership development” among their members; (3) they “provide a case management system for their members that focuses on labor violations,” including wage and hour claims; and (4) they lead “workshops on health and safety issues.”¹³⁴

The deputization of worker centers also carries many benefits because worker centers have distinct characteristics that enable them to serve the community. Worker centers have existed since the 1920s but grew enormously in the early 2000s.¹³⁵ Although worker centers have changed in scope and objectives throughout their history, they still maintain a focus on being community-led.¹³⁶ The members of worker centers are workers themselves—employees who are also seeking an improved workplace.¹³⁷ Furthermore, the cornerstone of worker centers is that they are made up of a “strong base of workers at the local level” who frequently play key roles in the “organizational decision-making” of their employers.¹³⁸

Worker centers use a combination of approaches, including: (1) “[s]ervice delivery, including legal representation to recover unpaid wages, English classes, worker rights education, and access to health clinics”; (2) advocacy, including researching employment conditions in low-wage industries and improving monitoring and grievance processes; and (3) organizing, including engaging in “leadership development.”¹³⁹ Because worker centers offer services, advocacy, and organizing, they provide unique services to help “low-wage immigrants navigate the world of work in the United States.”¹⁴⁰ Unlike labor unions, worker centers do not typically operate a dues-paying system;¹⁴¹ instead, they usually require people to become involved in the work or take courses on workers’ rights in order to join.¹⁴² Worker centers also engage in direct community outreach and educational workshops that can benefit people who are not members of the worker centers, making their services accessible to many.¹⁴³

Since worker centers provide a broad range of services and are accessible to workers, they are well-positioned to handle the authority that would come with deputization by a government agent. The efforts that worker centers engage in are wide-ranging; thus, they could absorb the responsibilities of being deputized by a government agent to enforce wage theft. Moreover, the deputization of Santa Clara County’s FWC is an example of successful deputization of worker centers. Most of the organizations that make up the FWC are worker centers that consist of members of the community and whose purpose is to serve a specific subset of marginalized workers.¹⁴⁴ The deputization of worker centers has seen success in Santa Clara County, and worker centers’ deputization to educate workers and investigate wage theft would also be impactful within the city of Los Angeles.

II. Deputization to Perform Outreach

Deputization of private citizens to assist in reducing the wage theft problem in Los Angeles can come in many forms, but two specific areas could benefit from deputization: outreach and investigation. Outreach is already contemplated through the LAMC. Under the LAMC, the OWS is given express statutory authority to develop an outreach program and inform employers and employees of minimum wage laws.¹⁴⁵ Section 188.12 of the LAMC states:

The Division shall establish a community-based outreach program to conduct education and outreach to Employers and Employees. In partnership with organizations involved in the community-based outreach program, the Division shall create outreach materials that are designed for Employers and Employees in particular industries.¹⁴⁶

Although the outreach program that the OWS has been charged with creating and implementing is not detailed in the statute, the OWS has taken several actions as part of its outreach efforts. As noted in its September 2023 Milestone Report, the OWS’s outreach included: (1) notifying businesses registered with the Office of Finance through mailed business tax statements, online renewals, and direct emails to business owners; (2) providing content for chambers of commerce & business associations, business improvement districts, and the Department of Neighborhood Empowerment to include in member newsletters; (3) holding training sessions and delivering information materials to staff from the “Mayor’s Office, [c]ouncil [d]istricts, [p]ublic [l]ibraries, [a]nimal [s]helters, BusinessSource Centers, and WorkSource Centers”; (4) attending outreach events; (5) establishing a toll-free hotline, email, and website to field inquiries and provide information; and (6) issuing requests for quotes and establishing an on-call list of contractors who will “provide community outreach and other support services.”¹⁴⁷

Its mention of “partnership with organizations” and “community-based outreach” indicates that the authority extended to the OWS includes partnership with organizations like worker centers. Thus, express deputization of worker centers to perform outreach could be framed within LAMC section 188.12, allowing private parties to communicate directly with workers to educate them about their rights under the law.

III. Deputization to Investigate

In addition to outreach, the LAMC also gives the OWS authority to investigate violations of Los Angeles ordinances relating to wages:

The [OWS] shall be responsible for investigating possible violations of the Los Angeles Minimum Wage, Sick Time Benefits, Fair Work Week Ordinance, and this article by an Employer or other person. The Employer shall cooperate fully in any investigation by the Division. The Division shall have access to all business sites and places of labor subject to the Minimum Wage and Fair Work Week Ordinances during business hours to inspect and request copies of books and records, interview employees and any other relevant witnesses, investigate such matters necessary or appropriate and request the Board of Public Works to issue a subpoena for books, papers, records, or other items relevant to the enforcement of this article. The Employer is required to provide to the Division its legal name, address, and telephone number in writing.¹⁴⁸

Employees can submit complaints regarding violations of the MWO directly to the OWS.¹⁴⁹ Employees also have the option of filing separate or additional complaints through the State Labor Commissioner’s office.¹⁵⁰ According to its September 2023 milestone report, the OWS received 1,084 complaints and closed 785 of them (202 with violations) since July 2016, thus handling complaints at a rate of 72%.¹⁵¹ But even as the OWS addresses complaints submitted to it, data indicates that the complaints received encompass only a small proportion of Angelenos who have experienced wage theft. For example, Los Angeles Worker Center Network’s 2023 concept paper called Los Angeles the “wage theft capital of the nation”¹⁵² after a UCLA survey revealed that 88.5% of low-wage Los Angeles County workers in the sample experienced at least one type of pay-related workplace violation in the week of work before the survey.¹⁵³ According to 2023 Census Bureau data, 66.5% of Los Angeles City’s population of 3,820,914 were in the civilian labor force from 2019–2023.¹⁵⁴ These numbers indicate that over two and a half million working Angelenos are at risk of wage violations per year. Thus, even though the city provides a method for reporting complaints relating to wage violations through the OWS, many violations appear to be slipping through the cracks.¹⁵⁵

Given the magnitude of the wage theft problem in Los Angeles, deputizing private citizens through the OWS could identify more employees who are experiencing wage theft and, in doing so, disincentivize employers from stealing wages. Deputization to investigate would enable worker centers to access employer records to identify wage theft victims, speak directly with employees, and encourage them to file complaints to seek redress.

Currently, the enforcement power given to the OWS is explicitly limited to only designated OWS officials. The Los Angeles Office of Wage Standards Ordinance provides the OWS with the following investigative authority:

The head of the [OWS] or their designee shall have access to all business sites and places of labor subject to the Minimum Wage Ordinance, the Fair Work Week Ordinance, and [the Los Angeles Office of Wage Standards Ordinance] during business hours to inspect books and records, interview employees and any other relevant witnesses, and investigate such matters necessary or appropriate to determine whether an Employer has violated any provisions of the Minimum Wage Ordinance, the Fair Work Week Ordinance, or [the Los Angeles Office of Wage Standards Ordinance].¹⁵⁶

The OWS Ordinance grants broad discretion to the OWS and allows it to perform an extensive range of investigative functions, subject to several separate ordinances. Rules and regulations implementing the FWWO even extend this authority, allowing the OWS to “conduct inquiries and investigations into areas outside of the FWWO to determine compliance with the FWWO.”¹⁵⁷

Although the OWS’s powers are wide-ranging, the determination of who can exercise these powers has not been clearly defined. The OWS Ordinance expressly grants access and authority to the OWS’s head and the head’s designee. The “head” of the OWS can likely be straightforwardly pinpointed to the OWS’s “Division Manager,” who leads the Office.¹⁵⁸ However, the determination of who can be categorized a “designee” is not so clear. Although there are defined terms under both the FWWO section authorizing the OWS¹⁵⁹ and under the FWWO’s rules and regulations,¹⁶⁰ neither provide a definition for whom exactly a “designee” may be. This lack of clarity leaves open the possibility that the designee may not necessarily be a government entity employed with the OWS and may instead be a third party. Thus, private citizens could be deputized to investigate with authorization as a “designee” by the head of the OWS. However, whether the Division head of the OWS may grant such authority to the private citizens of a worker center is circumscribed by the California Constitution and relevant case law.

A. The Municipal Nondelegation Doctrine

The California Constitution restricts private persons from performing certain governmental functions. Los Angeles is a charter city, meaning the basic law of the city’s government is found in the City Charter, rather than in general law.¹⁶¹ While a general law city organizes itself with “local government provisions in the state constitution and state statutes,” a charter city like Los Angeles can design its own government, developing some “political and governmental autonomy.”¹⁶² The Los Angeles City Charter is the fundamental document of the city,¹⁶³ giving the city control over its own “municipal affairs.”¹⁶⁴ The California Constitution authorizes charter cities the ability to exercise plenary authority over municipal affairs, subject only to constitutional limitations.¹⁶⁵ The city charter “identifies the main governing bodies of the city, along with their powers and duties.”¹⁶⁶ No changes to the charter can be made “without a vote of the people.”¹⁶⁷

Still, all cities must comply with the state constitution; the California Constitution governs both county and city government within California.¹⁶⁸ Of particular relevance, the California Constitution includes a nondelegation doctrine in article XI, section 11: “The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions.”¹⁶⁹

This prohibition against legislative delegations of power to private entities was initially enacted as article XI, section 13 of the California Constitution on May 7, 1879.¹⁷⁰ On June 1970, California voters passed Proposition 2, a ballot measure aimed at revising the substance and language of the California Constitution.¹⁷¹ As part of this revision, Section 13 was redesignated as Section 11, and the section was amended to its current language.¹⁷² The provision went into effect on November 23, 1970.¹⁷³

Although the restriction against delegating municipal functions is a narrower subsection of the nondelegation doctrine, laws against delegating governmental power exist on a broader level. The nondelegation doctrine has been examined both within federal law¹⁷⁴ and state law. Under state law, the doctrine is applied in many different circumstances, spanning a wide range of applications such as “delegations to private parties, other state governments, and nearly all types of interbranch delegations.”¹⁷⁵ Yet, although state courts apply the nondelegation doctrine in more contexts than federal courts, scholarship on state nondelegation doctrine is scarce; only two to three studies about the state nondelegation doctrines have been published throughout the past few decades.¹⁷⁶ Furthermore, states frequently apply the nondelegation doctrine in many different contexts, resulting in little coherence.¹⁷⁷

The two most recently published treatments of state nondelegation doctrines both categorize California as a state with a more lenient nondelegation doctrine.¹⁷⁸ The first study is Gary Greco’s article, published in 1994, which grouped states into three categories. Eighteen states were categorized as “strict” nondelegation states, meaning these states require the legislature to “provide definite and clear standards with the delegation” of power in a statute.¹⁷⁹ Twenty-four states were categorized as a “loose standards” state, meaning that standards or safeguards must be provided by either the legislature or administrative agency, and the administrative agency is required to adopt “procedural safeguards” to follow when making a decision.¹⁸⁰ Greco’s final category, containing six states, was “procedural safeguards” states, which do not require even minimal statutory standards to uphold a delegation, leaving legislatures with less effect on policy.¹⁸¹ Greco categorized California as a procedural safeguards state.¹⁸²

The second, more recent study is Jim Rossi’s, published in 1999, which also places states into three separate categories to “update and refine” Greco’s summary of the state doctrines.¹⁸³ Rossi grouped twenty states into the “strong” nondelegation category, meaning these states have statutes which are “periodically struck on non-delegation grounds.”¹⁸⁴ Twenty-three states were categorized in Rossi’s “moderate” category, which “do not always require specific standards,” but can vary the standards necessary depending on the statute.¹⁸⁵ Rossi categorized seven states in the “weak” category; these states uphold delegations as long as the agency has “adequate procedural safeguards.”¹⁸⁶ California was grouped into Rossi’s “weak” category.¹⁸⁷ Although these studies and groupings are imperfect,¹⁸⁸ they provide a general framework to understand how California’s nondelegation doctrine compares to other states: California’s nondelegation doctrine is more lenient than several other states’ nondelegation doctrines.

California is not alone in restricting delegation of legislative power to municipal functions; more than a dozen states forbid their legislatures from delegating powers, including their municipal powers.¹⁸⁹ Colorado and Wyoming each forbid their state legislatures from delegating “any municipal function whatever” to private parties.¹⁹⁰ Similarly, Utah prohibits legislative delegations from “perform[ing] any municipal functions.”¹⁹¹

Importantly, this provision of the California Constitution does not preclude all delegation of the legislature’s power. Instead, the prohibition on delegation is cabined such that the legislature may not delegate the power to “perform municipal functions.” As a result, case law regarding the municipal nondelegation doctrine involves determining what constitutes a nondelegable activity, who the delegated party can be, and whether the delegation was proper.

Legislative Actions

Since California “prohibit[s] delegation of legislative power,”¹⁹² case law interpreting the nondelegation doctrine addresses the preliminary question of whether a legislative action was taken. In Kugler v. Yocum, Alhambra city residents contested a proposed ordinance by their city council which would set Los Angeles wage rates as the minimum for Alhambra firefighters’ salaries.¹⁹³ The court found that this proposed ordinance was a legislative action by the city council because wage rates were expressly provided for as a council power in the city charter; the city council was therefore acting in its “legislative” capacity.¹⁹⁴ Decisions about wage rates are an explicit authority of the council in Alhambra, making it a legislative action.¹⁹⁵

Like the wage rates of firefighters in Kugler, the investigative powers for wage theft are expressly left to the OWS under the Los Angeles City Charter. The Los Angeles City Charter states that all legislative power of the City is “vested in the Council and shall be exercised by ordinance.”¹⁹⁶ The LAMC is the ordinance granting authority to the OWS;¹⁹⁷ under the LAMC, the OWS is given specific duties under the MWO¹⁹⁸ and FWWO.¹⁹⁹ Thus, the passage of this local legislation is likely a legislative function. As a result, any delegations of these powers would likely be a legislative action subject to the nondelegation doctrine of the California Constitution.

Municipal Actions

In addition, California’s municipal nondelegation doctrine prohibits delegation of municipal functions. The determination of what constitutes a “municipal function” such that it cannot be delegated to private persons within the constraints of the California Constitution is a fact-specific inquiry. Courts must “decide, under the facts of each case, whether the subject matter under discussion is . . . municipal.”²⁰⁰ Article XI of the California Constitution, which sets forth the nondelegation doctrine, does not define “municipal functions.” To define this term, courts have looked to other provisions of the California Constitution to determine the responsibilities that the governing body is assigned.²⁰¹

The question of what constitutes a “municipal affair” has been addressed by courts when it comes to several different provisions of the California Constitution.²⁰² Within these contexts, courts generally view municipal functions as “problems which exhibit exclusively local characteristics at certain times in the life of a community.”²⁰³ Acknowledging that this view encompasses ever-changing characteristics, the California Supreme Court has said, “It is . . . settled that the constitutional concept of municipal affairs is not a fixed or static quantity. It changes with the changing conditions upon which it is to operate.”²⁰⁴ The subject matter of cases addressing the municipal nondelegation doctrine are diverse, but courts generally hold that municipal matters relate to “local function”—functions so limited in scope to a particular region that they can be “adequately handled by the municipal authorities of a single town.”²⁰⁵

In People ex rel. Younger v. County of El Dorado, the Tahoe Regional Planning Compact was created to plan for the future and preservation of Lake Tahoe.²⁰⁶ The Compact created an internal agency that made “plans for land use, transportation, conservation, recreation, and public services and facilities” throughout the entire Lake Tahoe region, which spanned California and Nevada.²⁰⁷ The Compact’s authority was challenged as an unconstitutional delegation of municipal power.²⁰⁸ The California Supreme Court held the Compact was constitutional because the delegation of power was not for municipal functions; the Compact was enacted to serve regional purposes, not just local purposes.²⁰⁹ The Compact did not have the authority to perform municipal functions such as building “local parks”; instead, it operated on a larger regional basis.²¹⁰ Because it served a regional and not a municipal function, the Compact did not violate the California Constitution.²¹¹

Applying that reasoning here, the deputization of worker centers by the OWS is likely a municipal function because it is limited in scope and region—affecting only workers in the city of Los Angeles. Since this deputization would likely be seen as both a legislative action and a municipal action, it would likely trigger application of the municipal nondelegation doctrine.

Private Parties

Legislatures may be prohibited from delegating municipal matters when such delegation lands in the hands of private parties. In Howard Jarvis Taxpayers’ Assn. v. Fresno Metropolitan Projects Authority, the Fresno legislature created the Fresno Metropolitan Projects Authority and gave it the ability to tax. The California Court of Appeal found that levying taxes was a legislative function because the California Constitution has explicitly identified the imposition of taxes as a function of local government.²¹² In addition, eleven of the Authority’s thirteen board members were individuals from private organizations with no “governmental subservience”; thus, they were private parties.²¹³ The court therefore found that the Authority was a private body to whom the legislature could not delegate its taxing power, a legislative function.

Simi Valley Recreation & Park, in which the legislature passed a statute that delegated decisions regarding undeveloped land to a local agency formation commission, serves as a contrast.²¹⁴ In this case, the California Court of Appeal found this delegation did not violate article XI, section 11 of the California Constitution because local agency formation commissions are government agencies, not “a private person or body” under the language of the constitution.²¹⁵ The court also noted that, prior to its amendment and while it was categorized as section 13, California’s nondelegation doctrine expressly precluded delegation to a “special commission.”²¹⁶ However, this language was repealed in the section 11 amendment in 1970.²¹⁷ Courts no longer apply the former section 13 language, and special commissions are no longer an indication of an unconstitutional delegation.²¹⁸

Worker centers are not government-affiliated and are thus private parties. Since this deputization structure would be a delegation of legislative power to a private party, it must meet the standards courts require for a proper delegation to avoid being banned under the municipal nondelegation doctrine. But this private aspect of worker centers is, in this context, actually a virtue. After all, one of the values of deputization is its separateness from resource-strapped government entities.

Standard for Delegation

Even when a legislature allows a private party to commit an action which is found to be legislative and municipal, such delegation may still be acceptable if a sufficient standard for delegation exists. In Kugler v. Yocum, the California Supreme Court set out the standard for determining whether legislative power is validly delegated.²¹⁹ The court stated that legislative power can be delegated if it is “channeled by a sufficient standard”; after the Legislature creates a policy and sets the standards for it, it may leave the “power to fill up the details” to executive or administrative officers by giving these officers the ability to prescribe rules and regulations that will effectuate the law.²²⁰ In addition, “[w]hile the legislative body cannot delegate its power to make a law, it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.”²²¹

In Kugler, the court rejected the residents’ argument that a new ordinance tying Alhambra city firemen’s salaries to the Los Angeles salaries would be an unlawful delegation of legislative power to those parties who establish salaries for Los Angeles firemen.²²² Instead, the court concluded that the legislature’s decision to adopt the ordinance itself would “constitute the legislative body’s resolution of the ‘fundamental issue,’ ” and any subsequent steps taken to fill in the application and execution of policy is not legislative delegation.²²³

More recently, California courts have determined whether a sufficient standard for delegation exists by looking at whether the legislature is stripped of its ability to make final decisions.²²⁴ The California Court of Appeal stated: “The constitutionality of [a statute’s] factfinding provisions turns on whether the provisions divest the County of its final decision-making authority.”²²⁵ The California Supreme Court has not addressed whether final decision-making authority meets a sufficient standard for delegation. However, lower courts have relied on this principle, finding that a municipal function has not been improperly delegated when the Legislature leaves the task of achieving their goals to some other body—whether public or private—so long as it is the Legislature who makes the “fundamental policy decisions.”²²⁶ In general, California courts have been relatively generous in finding that an agency did not improperly delegate power so long as a county or city has not been divested of its authority to make final decisions.²²⁷ Courts are also deferential to the legislature, noting, “If there is any doubt as to the Legislature’s power to act in any given case, the doubt should be resolved in favor of the Legislature’s action.”²²⁸

The municipal nondelegation doctrine was not violated in California Renters Legal Advocacy & Education Fund v. City of San Mateo. In that case, the legislature added a provision to its Housing Accountability Act (“HAA”) allowing a reasonable person standard to determine compliance with a housing project.²²⁹ When a renters group’s residential project was denied by the City of San Mateo, it argued that this denial violated the HAA.²³⁰ The City of San Mateo challenged the HAA provision as unconstitutional, arguing it would allow a private person to place evidence into the record that a project is compliant with objective standards.²³¹ The City argued this was a violation of the nondelegation doctrine because a private person could force a local agency to approve the project, stripping the legislature of its decision-making function.²³² However, the court of appeal found this provision did not violate the municipal nondelegation doctrine. The court of appeal stated:

[The] city’s governing body retains broad authority, subject to judicial review, to exercise decisionmaking authority: to determine whether there is substantial evidence from which a reasonable person could conclude the project is consistent with the city’s applicable objective requirements; to deny or reduce the density of a project that does not meet such standards or that causes an unavoidable adverse impact on public health or safety; and to impose conditions of approval that do not reduce the project’s density where applicable objective standards are met.”²³³

In contrast, the municipal nondelegation doctrine was violated in County of Riverside v. Superior Court when a sheriff’s association ordered the county to binding arbitration to resolve economic issues arising from negotiations with unions representing firefighters or law enforcement officers.²³⁴ Analysis of nondelegation was triggered: the compensation of these individuals was a municipal function expressly provided to the legislature in the California Constitution,²³⁵ and the arbitrators of the issues were private entities, not public officials.²³⁶ The court ultimately held the statute unconstitutional because the arbitration it required, from which the results would be binding on the public agency,²³⁷ deprived the public agency of the ultimate power to make its own decisions.²³⁸

In sum, although deputization by the OWS to worker centers is a delegation of a municipal function by a legislative body to a private party, the municipal nondelegation doctrine is still likely not violated. As long as the OWS retains final decision-making authority, extending the authority granted to the Los Angeles OWS to private citizens within worker centers is likely permissible and not in violation of the municipal nondelegation doctrine. Entering worksites to perform investigations on employer wage practices and inspecting employer records does not bind the public agency of the OWS to any final decision. On the other hand, a worker center’s ability to take actions such as filing wage claims or arbitrating with employers would likely be characterized as final decisions. As to these binding choices, a worker center’s authority should be thoroughly constrained; the decision of whether or not to take these steps must belong to the OWS. However, when it comes to non-binding decisions, the deputization of worker centers under the LAMC is likely permissible under the California Constitution.

To further strengthen the constitutionality of this deputization, the reservation of this final decision-making authority should be made explicit in contracts between deputized entities and the OWS. In particular, all contracts between the OWS and the worker centers should precisely note that the deputized entities may not file suit, begin employment action, or make any final decisions without prior written approval of the OWS. Contracts should state expressly that the work product of deputized worker centers are subject to the approval of and final decisions are to be made by the OWS. This clarity and explicitness would bolster the legitimacy of the deputization relationship between the OWS and private citizens, preventing the relationship from being barred by the California Constitution’s municipal nondelegation doctrine.

Conclusion

The enormity of the wage theft problem affecting millions of American employees requires a solution beyond the underenforced laws currently in place. Located in the “wage theft capital of the nation,”²³⁹ the city of Los Angeles is particularly affected by this issue.

The deputization of private citizens by Los Angeles’s Office of Wage Standards offers a path through which the city government can more effectively enforce wage laws and hold employers accountable. Deputization could not only endow workers with knowledge about their rights through outreach, but would also enable private citizens to inspect employer records to identify victims of wage theft. Deputizing private citizens would broaden the enforcement powers available to the OWS and encourage workers to file complaints while discouraging employers from violating the law. Although deputization through the OWS would still result in some limitations on Los Angeles City’s enforcement abilities, its successes and drawbacks should be

studied to assess the potential of statewide deputization through a larger entity such as the BOFE.

Deputization of worker centers to perform worker outreach and investigate wage theft within work sites could provide greater enforcement of wage laws. However, such deputization is vulnerable to attack under the California Constitution’s municipal nondelegation doctrine. Deputization of worker centers would be a delegation of municipal action by the Los Angeles legislature to worker centers, a private party. Although these factors make the municipal nondelegation doctrine applicable, a clear standard for delegation would likely allow deputization to survive. In particular, unambiguous language that the OWS would retain ultimate control over any decision-making would help strengthen the legality of this deputization and prevent it from violating the California Constitution’s municipal nondelegation doctrine. This explicit language could be found in formal documentation of a deputization relationship, or in rules and regulations from the LAMC regarding the OWS.

Overall, with the proper boundaries and constraints, the deputization of worker centers by the OWS to perform outreach to employees and to investigate wage theft is likely permissible and constitutional. Taking advantage of the community ties and expertise of worker centers could enable the OWS to better serve the workers of Los Angeles while discouraging wage theft by employers. Deputization of worker centers offers a powerful avenue to combat Los Angeles’s enormous and persistent wage theft problem.

98 S. Cal. L. Rev. 725

Download

Kalysa To*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. English & Psychology 2021, University of California, Los Angeles. My sincere gratitude to Professor Clare Pastore, Yvonne Medrano, Victor Narro, and Ruth Silver-Taube for providing their valuable insight. Thank you also to the editors of the Southern California Law Review for their work, and to my family for their support.

Defining the Relationship: California’s Noncompete Laws and Exclusivity in the Acting Industry Leading Up to the 2023 SAG-AFTRA Strike

August 2024August 2024Katarina Ulich*

California is firm in its stance against post-term noncompete clauses. This Note examines early Hollywood and the historical and economic context in which talent contracts arose. It analyzes the shift in talent contracts from the harsher terms of the 1930s studio system to the modern terms which give more control to actors.

Exclusivity exists in both the film and television industry. However, the in-term and post-term treatment of exclusivity provisions and noncompetes has received conflicting treatment by California and Ninth Circuit Courts, suggesting that perhaps the California Supreme Court should weigh in on the matter as they did in 2008 with Edwards v. Arthur Andersen and articulate whether Section 16600 can apply to in-term noncompete and exclusivity provisions. While it is widely held that Section 16600 does not apply to in-term noncompetes, the holding in ITN Flix, LLC v. Hinojosa suggests that certain situations in the acting industry may trigger its application and deem an in-term noncompete invalid if unduly harsh.

Regardless, the ability of actors and unions to negotiate with studios for mutually beneficial terms has allowed common practices in entertainment contracts to shift over time without much recent legislation. This suggests that, while the applicable law will provide one side with bargaining power, negotiations and collective-bargaining agreements will largely continue to set the standards for common entertainment contract practices.

INTRODUCTION

From 2005 to 2010, American actress Katherine Heigl appeared in the hit ABC television medical drama, Grey’s Anatomy, as the supporting role of Dr. Izzie Stevens.¹ Simultaneous to her work on the television series, Heigl starred in films that would soon become classics of the 2000s, such as Knocked Up (2007), 27 Dresses (2008), and The Ugly Truth (2009).² By 2008, Heigl had been deemed the new “It Girl” of Hollywood by Vanity Fair as a result of her acting endeavors.³ Knocked Up had been a box office hit, and Heigl had taken home the 2007 Primetime Emmy Award for Outstanding Supporting Actress in a Drama Series for her television work on Grey’s Anatomy.⁴ Heigl had pursued a career in film while still appearing as a series regular on Grey’s Anatomy, rendering her a household name across the United States. Meanwhile, the lead of Grey’s Anatomy—Ellen Pompeo—had not appeared in a role outside of Dr. Meredith Grey since the series inception in 2005.⁵ While this could be attributed to personal choices, it may instead be the result of contractual differences between a series’s lead actress and a supporting actress, stemming from varying exclusivity terms. It is possible that Ellen Pompeo, as the lead role of Meredith Grey, was “contractually forbidden from acting elsewhere.”⁶ In 2018, Pompeo told The Hollywood Reporter, “I don’t get to do anything else, and that’s frustrating for me creatively. I make 24 episodes of TV a year, and as part of this deal, I cannot appear anywhere else.”⁷ While exclusivity terms can be frustrating to an actor,⁸ as demonstrated by Pompeo’s statement to The Hollywood Reporter, many studios view exclusivity as vital to production. Studios use exclusivity to coordinate production schedules and ensure talent’s availability as they invest time and money in the creation of a particular character.

In 2022, exclusivity terms could be freely negotiated in the entertainment industry when union actors were paid above an “exclusivity money break.”⁹ The exclusivity money break is a minimum salary bargained for by SAG-AFTRA,¹⁰ above which producers and talent can negotiate exclusivity freely. This would often result in producers paying substantial salaries for the exclusivity of top talent.¹¹ Meanwhile, union actors paid below the exclusivity money break (non-star talent) were restricted in their ability to grant exclusivity.¹² While these restrictions are discussed later in detail, actors in this latter non-star category who worked on a streaming show were often able to appear in feature films, as guests on other shows, and in commercials, yet they sometimes had to receive permission from studios in order to do so.¹³ Practical difficulties sometimes arose in the process of coordinating outside roles, as the actor’s main show would take scheduling precedence and restrict the actor’s ability to alter their appearance.¹⁴ This tension between actors, who often want the freedom to appear in additional roles, and studios, who face the challenges of coordinating production schedules and may have invested in an actor’s image, has led to debate in Hollywood surrounding the use of exclusivity provisions in talent contracts. Exclusivity, along with other issues concerning residuals and the use of Artificial Intelligence, contributed to SAG-AFTRA’s 2023 strike against Hollywood’s major studios, lasting 118 days from July to November of 2024 while new contract boundaries were negotiated.¹⁵ This Note will examine the contractual exclusivity terms leading up to the 2023 strike. The rise of online streaming has increased the demands placed on actors, as shorter series seasons contribute to more idle time for actors. The landscape is changing rapidly, resulting in the frequent renegotiation of terms and resulting standstills, exemplified by the 2023 SAG-AFTRA strike.

Exclusivity provisions are contractual terms that prevent an employee from working elsewhere during the term of their employment, resulting in the employee giving their undivided effort to the employer. Noncompete clauses are another set of contractual terms that also appear in talent contracts and typically restrict an employee from working for certain third-parties. Noncompetes may last for only the term of the employment, and thus be in-term restrictions, or they may last after the employee no longer works for the current employer, which is a post-term restriction.¹⁶

Arguments exist on both sides of the general debate around exclusivity provisions and noncompetes in the talent industry. Opponents argue that they hinder competition by restricting the free movement of talent and ideas.¹⁷ In the talent industry specifically, SAG-AFTRA has argued that exclusivity terms in actors’ personal service agreements are often used to “hold series regulars off the market and unable to work for unreasonably long periods of time”¹⁸ while a show is in an off period.¹⁹ SAG-AFTRA has noted that these exclusivity provisions were less burdensome when talent worked three quarters of the year on twenty episode seasons, but that the rise of online streaming platforms, year-round production cycles, and short seasons of thirteen episodes (or sometimes fewer) have left lower and mid-level actors short of work.²⁰ Some actors are “not being paid while on hold between seasons, but they’re also not allowed to accept other paying jobs. These contracts mean that actors often find themselves collecting unemployment, struggling to pay their bills and unable to build a career.”²¹ The arguments against exclusivity and noncompetes have received national attention.²² In 2021, President Biden issued an executive order attempting to limit the effect of noncompetes, authorizing the Federal Trade Commission (“FTC”) to “interpret noncompetition agreements as an unfair method of competition, and thereby declare them unlawful.”²³ SAG-AFTRA was “ ‘thrilled to see President Biden take steps to curtail the use of unfair non-compete clauses, which are a major problem for . . . actors . . . .’ ”²⁴

Conversely, proponents of exclusivity provisions and noncompetes argue that without them, employers have little incentive to invest in the development of their employees.²⁵ In the acting industry specifically, production studios have concerns regarding the coordination of “complex production schedules involving hundreds—or at times even thousands—of people [with the] talent’s availability.”²⁶ The California Chamber of Commerce argues that without exclusivity, talent contracts are far “less valuable, which will lead to a reduction in wages paid to actors.”²⁷ Charles Rivkin, Chairman and CEO of the Motion Picture Association, views exclusive employment agreements as the backbone of scheduling for film, television, and streaming productions: they “provide the certainty necessary for producers to finance, insure, plan for and complete major feature film, television and streaming projects, particularly those involving long-term story arcs. They assure writers and showrunners that characters developed in one season can be brought back for subsequent storylines.”²⁸ Further, studios note an interest in preserving the investment of “millions [of dollars] in developing and promoting a show [and its actors, and] don’t want to see the lead actor show up in another series on a rival network.”²⁹ A studio may seek to control the image of a particular actor to protect its franchise from actions which could negatively impact the performance of the franchise, and thus, the studio itself.

Section 16600 of the California Business & Professions Code (“Code”) acts as a per se ban on noncompete agreements in California, as it “does not permit non-compete clauses, even if they are reasonable in scope and purpose.”³⁰ While many states operate under reasonableness standards, enforcing noncompetes when they are reasonable in scope and duration,³¹ the California Supreme Court case Edwards v. Arthur Andersen is strong in both its language and policy rationale against the enforcement of post-term employment restrictions. Following the 2008 decision in Edwards, discussed later in this Note, any post-term employment restriction is likely to fail. Discussion around the Code has focused on Silicon Valley, where the ban on noncompetes has often allowed technology companies and start-ups to innovate rapidly as employees move from company to company. However, little attention has been paid to the application of Section 16600 in Hollywood, particularly to its recent extension by the Ninth Circuit to reach in-term agreements in the acting industry in ITN Flix, LLC v. Hinojosa.³²

This Note investigates noncompete agreements and exclusivity in the entertainment industry through the lens of Section 16600 and critically analyzes recent decisions involving the extension of Edwards to in-term noncompetes and exclusivity agreements in talent contracts. Historically, case law involving Section 16600’s ban on noncompetes has been limited to post-term employment restrictions. In the acting context, post-term noncompetes are those which restrict an actor’s employment options after they no longer work with a particular studio. However, a recent Ninth Circuit case (ITN) broadens the scope of Section 16600 to potentially invalidate in-term noncompete contracts that restrict an actor’s work, even if only for the duration of the employment contract. This Note discusses the Ninth Circuit’s decision, weighing the tension between exclusivity proponents and opponents to explore the extension of Section 16600 to in-term noncompetes and exclusivity clauses in the talent context.

Part I examines early Hollywood and the historical and economic context in which talent contracts arose. It analyzes the shift in talent contracts from the harsher terms of the 1930s studio system to the modern terms which give more control to actors. It provides a summary of common industry practices prior to the 2023 SAG-AFTRA strike. The agreements between SAG-AFTRA and major studios that led up to the strike are also explored, highlighting the prevalence of exclusivity while weighing the tension between its proponents and opponents.

Part II discusses Section 16600 and the significant 2008 California Supreme Court decision, Edwards v. Arthur Andersen, after which any post-term restriction on employment in California will likely fail.

Part III analyzes the possible extension of Edwards to in-term noncompete agreements and the changes that this extension may bring to exclusivity in the acting industry. To do so, it touches again on common exclusivity practices as well as in-term and post-term noncompete practices in the acting industry, while critically analyzing case law to explore how Section 16600’s extension to in-term noncompete and exclusivity provisions may bring unintended results. It concludes with a suggested theoretical legal standard that would consider an actor’s fame when analyzing exclusivity and noncompetes.

Part IV summarizes the case law findings and asks the California Supreme Court to weigh in on the conflicting lower court precedent, and the conclusion summarizes the findings from this Note.

I. HISTORY OF THE ENTERTAINMENT INDUSTRY

[T]he legal framework . . . in which all entertainment and media businesses operate is constantly challenged and in need of regular review and adjustment.

—Harold L. Vogel³³

A. The Economics of the 1930s Studio System

Shortly after film was introduced to the United States in the early 1900s, the major film studios realized there was immense potential for vertical integration and cost minimization in the film industry.³⁴ They quickly began to operate almost every stage of film production, from “production [and] distribution [to] exhibition.”³⁵ The West Coast (and Southern California in particular) emerged as the heart of this new and emerging studio system, as Hollywood was “far for the Trust enforcers to reach [and] . . . provide[d] low-cost nonunion labor and an advantageous climate and geography for filming.”³⁶ After the Great Depression, it was only “the companies with the most vertical integration . . . that survived,” further concentrating the control over the movie industry.³⁷ An incredibly “productive [and] efficient” synergy emerged as the major companies cooperated in “a ‘mature oligopoly’ ” with a significant share of the Hollywood market.³⁸

Vertical integration characterized this era of film production, with the major companies exerting control over large parts of the industry.³⁹ By the 1930s, this studio system led to stars signing “long-term contracts.”⁴⁰ While accompanied by cost minimization and efficiency, these contracts were often harsh and demanding, leaving little autonomy to actors.⁴¹ This early coordination of “studio operations [with] marketing strategies” brought “substantial [cost] savings [to] the studio [system.]”⁴² Exclusive contracts between stars and studios could last up to seven years, and in practice, even longer. ⁴³ Actors such as “Bette Davis and James Cagney were constantly suspended without pay by Warner Bros. for refusing roles.”⁴⁴ Actors who were suspended, such as Davis and Cagney, due to their “refus[al] to be loaned out to another studio or declin[ing of] a role . . . could be suspended without pay[, with the] length of the suspension . . . added to that of the contract,” extending contracts beyond seven years.⁴⁵

Early challenges to these contractual practices were unsuccessful, as demonstrated by Bette Davis’s 1937 lawsuit against Warner Brothers.⁴⁶ The same year as Davis’s unsuccessful lawsuit, California (home of Hollywood and longtime proponent of employee rights) enacted Section 2855 of the Code to limit the indefinite employment contracts often abused by studios.⁴⁷ Commonly referred to as the “Seven Year Rule,” Section 2855 “limits the term of personal service employment to seven years,” rendering any personal-service contract unenforceable past the seven-year mark.⁴⁸ This Section was tested in 1943, when Olivia de Havilland sued Warner Brothers.⁴⁹ The studio had refused to release De Havilland from her seven-year contract (despite the seven years lapsing) and claimed that her refusal to accept certain roles over the years had resulted in the addition of six months to her contract.⁵⁰ This practice of adding time to contracts was common in Hollywood, and these “suspension/extension” provisions (previously upheld in Bette Davis’s case) “could double the term of an actor’s contract.”⁵¹ De Havilland successfully argued that Warner Brothers was breaching its contract—as the contract was for seven years regardless of her refusal of certain roles—and violating labor law in doing so, as California had a statutory limit of seven calendar years on the enforcement of employment contracts.⁵² This marked the beginning of a new era of bargaining power for employees. This monumental decision applied “to more than just Hollywood[, as it] applied to every employee in California.”⁵³ While the extension provisions of De Havilland’s contract were deemed illegal in 1943, her concern around being held off the market is still shared by many series regulars today in the debate around exclusivity. An actor’s desire to pursue additional roles may conflict with a studio’s desire to coordinate production schedules.

Until the late 1940s, the major studios had maintained almost complete vertical integration of the film production process, evading various antitrust charges through government deals.⁵⁴ But in 1948, Paramount was found guilty of price-fixing by the Supreme Court in an antitrust lawsuit.⁵⁵ This case, widely known as the beginning of the end of Hollywood’s Golden Age, forced film studios to break up their vertically integrated practices.⁵⁶ A decree was signed by the major studios which “separated production and distribution from exhibition.”⁵⁷

This separation of exhibition from other links in the production chain played a transformative role in fundamentally shifting entertainment industry practices, replacing the long-term contracts of the 1930s with the disintegrated model of the 1950s.⁵⁸ With the collapse of the vertically integrated studio system, long-term contracts and standard seven-year exclusivity provisions were phased out and replaced by the freelance model that is still in place today.⁵⁹

Later, the emergence of television caused movie theater attendance to decline, leading studios to limit film production.⁶⁰ “[C]ontracted stars . . . became a hugely expensive overhead,” moving the industry into a freelance model as studios looked to cut costs.⁶¹ The relationship between studios and talent shifted as stars were given more freedom to choose their roles. Still, studios often incorporated exclusivity terms into deals as “series regular actors were busy working almost the entire year, with long production periods and short hiatuses that made their employment similar to other full-time jobs.”⁶² As film and series productions have grown in size and scale, studios argue that the exclusivity of actors involved in a production is essential to the coordination of various schedules and logistics. The ability to contract for the exclusivity of certain well-known actors may offer large incentives for a studio to invest in a production.⁶³

B. Modern Talent Contracts

Currently, Hollywood does not operate by the onerous long-term contracts that once existed, as modern talent contracts are no longer set at seven-year terms of exclusive work as they were in the 1930s. Instead, talent is cast specifically from project to project, often incorporating exclusivity clauses in both the film and television industry. Special contract terms, such as option contracts and pay or play contracts, raise similar issues to in-term exclusivity surrounding an actor’s ability to pursue other roles. The following paragraphs state the entertainment industry terms as they existed prior to the 2023 SAG-AFTRA strike.

1. Film

Film production begins and ends on (more or less) defined dates.⁶⁴ As a result, exclusivity terms in movie deals are common and are rarely a source of extreme debate. An actor’s film contract will often explicitly include the dates for “consecutive exclusive preproduction services, a specified number of weeks for shooting, and a maximum number of days for postproduction services.”⁶⁵ In-term exclusivity provisions tend to accompany the preproduction and production period,⁶⁶ as exclusivity is often used to coordinate scheduling among large casts and crews, and actors are left with little idle time during film rehearsals and shooting. Conversely, postproduction requests⁶⁷ are generally subject to an actor’s availability, as an actor’s work will typically be completed and any post-term restriction preventing the actor from accepting other jobs would likely be invalidated by Section 16600.⁶⁸

It may be possible, however, for talent contracts to include postproduction restrictions preventing actors from working on certain projects for a certain amount of time even after a movie has completed filming. One can imagine this being the case for actors in the Marvel Universe.⁶⁹ For example, Chris Hemsworth—popular for his role as superhero Thor in the Marvel Comics (“Marvel”) film Thor as well as The Avengers—could theoretically be unable to appear in films by Marvel’s direct competitor, DC Comics (“DC”).⁷⁰ Marvel and DC are both immensely popular comic-book publishers that have transformed their comic-book characters into big-screen franchises. If these contractual provisions exist, they may be legally vulnerable, as Section 16600 invalidates post-term restrictions on an employee’s work.

It is also possible that these terms, which (on face value) appear to be post-term, are actually in-term restrictions, and thus valid under Section 16600. The acting industry has a unique gray area between in-term and post-term restrictions when an actor is no longer actively filming but may be called back for a reshoot, or–for example–when an actor is no longer filming the first Thor movie but is still under an exclusive contract for the second movie. While this may be in-term contractually, it has post-term implications as an actor’s work is restricted while they wait for the next production cycle to begin. This area of talent contracts seems to be the most legally vulnerable, especially under the Ninth Circuit’s extension of Section 16600 in ITN to invalidate in-term noncompete provisions.

2. Series and Short Form (Television)

While not heavily debated in film contracts, exclusivity terms are a highly contentious subject of debate in television and series contracts. Television seasons may be short, and actors may find themselves wanting to solicit intermittent work, leading them to seek additional roles while still under contract with another show. Unlike films, there is not a set beginning and end date in television series production, as shows are in “a relatively constant state of production and postproduction during which there will be stretches of time when an actor’s services are not needed.”⁷¹ Exclusivity terms can vary greatly depending on the contractual terms negotiated: a series actor who wants to render outside services may either be free to do so, may need special permission from the studio, or may be prohibited from doing so.⁷²

When a television talent contract does allow an actor to pursue additional roles, there are practical limits to an actor’s ability to do so, as studios prefer their talent to be somewhat exclusive to their shows.⁷³ For example, scheduling work on a feature film is difficult, as television series production is demanding and leaves only a few days off at a time (apart from true offseasons).⁷⁴ Further, many deals preclude an actor from appearing on another television series, apart from “a limited number of guest spots, appearance in foreign commercials and services in nonidentified voice-over commercials.”⁷⁵ Standard series agreement deals (as of December 2021) allowed networks and streaming services to enter into exclusivity deals with talent for “anywhere from nine months to more than a year in some cases,” making the process of rendering outside services difficult during this period.⁷⁶

Noncompete and exclusivity terms for a series contract generally fall in the category of in-term restrictions, as they apply to the actor while they are still in a contract for their current series. They are therefore not legally vulnerable under the historical interpretation of Section 16600, which has traditionally applied only to post-term restrictions. If, however, the Ninth Circuit’s extension of Section 16600 in ITN to invalidate in-term employment restrictions is valid, then these common industry practices may be legally vulnerable.⁷⁷

3. Option Contracts

When a film or television series is part of a larger, ongoing story and multiple production periods are likely (such as classic blockbuster films like Wonder Woman and Spider-Man for which sequels can be anticipated), option contracts are often used. An option clause in a talent contract “gives the producer or studio the sole right, or ‘option,’ to extend a contract for an additional period of time [and] commits the actor to working on the subsequent television or new media season.”⁷⁸ The option period can last anywhere from months to years.⁷⁹ While option clauses ensure that characters an audience has come to know and love will be returning in the same role, they have the potential to prevent an actor from accepting additional work when paired with exclusivity terms, as options can be exercised even if no start date has been set for the next project.⁸⁰ This raises similar issues to exclusivity and noncompetes, as actors may be kept off the market for unreasonably long periods of time, yet studios have an interest in ensuring well-known characters such as Wonder Woman and Spider-Man are able to return for a sequel.

4. Pay or Play

A pay or play term in a contract guarantees that an actor will be paid for their role in a production, regardless of whether they are used or whether the production gets made.⁸¹ These terms can typically only be negotiated by top talent, as they require the studio to pay the actors their full salaries “even if they are terminated before rendering all of their services.”⁸² This compensates the talent for rejecting other “lucrative” roles with similar time lines due to the expectation of exclusivity surrounding their involvement in the pay or play production.⁸³ Pay or play terms therefore symbolize the acknowledgement by studios that exclusivity is highly valuable, and as such, studios are willing to compensate top talent highly for the opportunity cost of rejecting other roles. Since these terms are often accompanied by exclusivity terms, they may be subject to challenges if Section 16600 is extended to invalidate in-term exclusivity.

C. Industry Practices

The Screen Actors Guild (“SAG”) was founded in 1933 as a union representing actors in “film, television, and digital media.”⁸⁴ In 2012, the Screen Actors Guild merged with the American Federation of Television and Radio Artists (“AFTRA”) to form SAG-AFTRA, a powerful union representing “approximately 160,000 actors, announcers, broadcast journalists, dancers, DJs, news writers, news editors, program hosts, puppeteers, recording artists, singers, stunt performers, voiceover artists and other media professionals.”⁸⁵ The union is frequently in talks with major production studios to exercise its collective-bargaining power and achieve favorable deals for its members, going on strike in 2023 to do so.

In-term exclusivity is highly contested in the acting industry as a constant battle between studios, who view the terms as essential to production, and actors and unions, who generally oppose them. In August of 2022, SAG-AFTRA⁸⁶ reached an agreement with Netflix (“Agreement”) limiting the use of exclusivity provisions for series regulars.⁸⁷ A similar agreement was reached between SAG-AFTRA and the Alliance of Motion Picture and Television Producers (“AMPTP”)⁸⁸ limiting exclusivity in series actors’ employment agreements.⁸⁹ SAG-AFTRA’s 2023 strike ended in November of 2023 (the Writers Guild of America also went on strike on May 2, 2023 and ultimately reached a deal with AMPTP on September 27, 2023).⁹⁰ This Note will focus on the terms impacting SAG-AFTRA as they existed prior to the 2023 strike.

An important distinction exists between stars and other talent in the entertainment industry when considering the practical relevance of the prior Agreement’s minimum terms. For those paid above a minimum salary, known as the “exclusivity money break,” the minimum terms of the collective-bargaining agreement do not apply.⁹¹ This means that stars and top-tier talent paid above this amount are not bound by the terms, limiting the effect of the Agreement to non-star talent. The 2022 SAG-AFTRA and Netflix Agreement increased this exclusivity money break (above which exclusivity can be freely negotiated) from $40,000 per episode or per week in 2019 to “$65,000 for a half-hour program and $70,000 for an hour program.”⁹²

For non-star talent paid less than the exclusivity money break, “the minimum terms of the collective bargaining agreement . . . require that a series regular retain the right to do certain other work in addition to working on the series on which they are a regular.”⁹³ The Agreement grants them the ability to take on a second position as a series regular or miniseries lead and removes the condition that a guest appearance⁹⁴ may not be on a competing platform.⁹⁵ Netflix still “must approve the [guest] [a]ppearance and the series regular must confirm availability and scheduling with Netflix before accepting it.”⁹⁶ Netflix retains the ability to deny a guest appearance if the guest role is too similar to the actor’s Netflix role, and actors cannot make irreversible changes to their appearance (such as haircuts).⁹⁷ A minimum three-month “conflict free window” after each season, “during which the series regular may accept a [guest] [a]ppearance without first having to confirm availability or schedule with Netflix” has been established.⁹⁸ This conflict free window means that a series regular will not be held off the market during offseasons, even in an in-term exclusive talent contract. The guest appearance, however, must be completed during the conflict free window or all remaining work will be second to Netflix’s scheduling, reflecting the concern of studios regarding the coordination of many crew and cast member schedules.⁹⁹ Failure on Netflix’s end to provide this window would result in Netflix paying the series regular their episodic fee for the prior season during the window the actor is not able to compete.¹⁰⁰

Concessions on behalf of Netflix in the above Agreement were made in exchange for SAG-AGTRA’s withdrawal of a California bill that it had supported, AB-437, known as the Let Actors Work (LAW) Act.¹⁰¹ AB-437 would have sharply limited exclusivity in television deals in favor of allowing actors to work on competing networks “as long as ‘there is no material conflict of interest with their original employer,’ [and] . . . it [did] not conflict with the original show’s schedule.”¹⁰² At the time AB-437 was drafted, exclusivity terms in contracts often prohibited stars from appearing on competing networks, even during production breaks.¹⁰³ While “AB-437 passed the [California] Senate Judiciary Committee in a 9-1 vote,”¹⁰⁴ it was withdrawn prior to the close of the August 2022 Legislative session as a result of the SAG-AFTRA agreements with Netflix and AMPTP.¹⁰⁵

The 2022 Agreement between Netflix and SAG-AFTRA exemplifies the arguments both for and against exclusivity and the resulting tension, as concessions were made on each side of the bargaining table. As a result of the Agreement, the demands of an actor’s “exclusivity” during an offseason were reduced. If exclusivity terms for actors paid below the exclusivity money break must now allow a conflict free window during which an actor can accept other roles, these terms may—in practice—act more like noncompete agreements than exclusivity agreements, since even “exclusive” actors are able to work on other shows. This blurs the lines between exclusivity and in-term noncompete agreements. Simultaneously, the importance of ensuring talent’s availability has been acknowledged and protected with provisions granting Netflix first position rights for scheduling.

II. SECTION 16600 AND EDWARDS

A. Section 16600

Some states allow contractual noncompete agreements, provided they satisfy a certain reasonableness standard. California, however, takes a strong stance against the enforcement of noncompetes in favor of employee mobility. Section 16600 of the Code states, “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”¹⁰⁶ Section 16600 carves out an exception for noncompetes in the sale or dissolution of corporations, partnerships, and LLCs, allowing covenants not to compete “where a person sells the goodwill of a business and where a partner agrees not to compete in anticipation of the dissolution of a partnership.”¹⁰⁷ This exception ensures that those who purchase a business do not immediately face competition from the seller.

B. Edwards v. Arthur Andersen

Prior to 2008, a small number of cases (mainly federal) allowed narrow restraints on competition in California if they passed a “reasonableness” standard.¹⁰⁸ In 2008, the California Supreme Court rejected the Ninth Circuit’s narrow restraint approach to Section 16600 and articulated a single standard for noncompetes in Edwards v. Arthur Andersen LLP.¹⁰⁹

In 1997, Raymond Edwards II was hired as an accountant by the Los Angeles office of Arthur Andersen LLP, contingent on his signing a noncompete agreement that all managers were required to sign.¹¹⁰ The noncompete prohibited Edwards from performing similar services to any clients he had worked with in the eighteen months prior to his departure for another eighteen months after his release or resignation.¹¹¹ While Edwards was subject to a non-solicitation provision, he was not prohibited from accepting employment with clients.¹¹²

In 2003, shortly after Edwards’s employment at the firm was terminated, Edwards filed a complaint alleging that Andersen’s noncompete agreement violated Section 16600 and was thus unlawful.¹¹³ The trial court held that, since the noncompete was “narrowly tailored” and “did not deprive Edwards of his right to pursue his profession,” it did not violate Section 16600.¹¹⁴

The California Court of Appeals reversed, finding that the noncompete was invalid under Section 16600.¹¹⁵ The California Supreme Court agreed and explicitly rejected the “narrow-restraint” exception to Section 16600 used by the Ninth Circuit, stating that “California courts have not embraced the Ninth Circuit’s narrow-restraint exception.”¹¹⁶ The court discussed its policy rationale in favor of protecting Californians and ensuring that “every citizen shall retain the right to pursue any lawful employment and enterprise of their choice.”¹¹⁷ This means that even a narrow restriction on employment in a specific industry will be invalid under California law.¹¹⁸ As noted in Edwards, the California Legislature did not include language to narrow the application of Section 16600 to only overbroad or unreasonable restraints on competition, thus the court will not add those limitations unless expressly indicated by the legislature.¹¹⁹

While the text and notes of the Code do not specify whether Section 16600 should apply to current as well as former employees, there are nearly a hundred years of case law interpreting the Code in the context of post-term employment restrictions—during which no California state cases have applied the Code to in-term restraints on employment such as exclusivity provisions.¹²⁰ Accordingly, exclusivity provisions are used often in the talent industry to coordinate schedules among individuals involved in production.¹²¹ However, a recent Ninth Circuit case, ITN, may extend application of Section 16600 (California’s ban on noncompetes) to exclusivity in the acting industry.

III. CASE ANALYSIS

A. Exclusivity Analyzed Through the Lens of Section 16600

Since Edwards, Section 16600 “often operates as a per se rule against noncompete clauses in contracts,” prohibiting noncompete agreements in California regardless of whether they are narrowly tailored in favor of promoting open competition and employee mobility.¹²² As noted earlier, the vast majority of cases applying Section 16600 have been restricted to the post-term noncompete context. Therefore, in-term exclusivity agreements and noncompetes will typically be allowed if narrowly and fairly drafted, as parties often use in-term exclusivity to ensure loyalty and investment in employee development. In the acting industry, in-term exclusivity may be used to coordinate production schedules, make talent contracts more valuable, and prevent actors from simultaneously appearing in rival network platforms (assuming they are paid above the exclusivity money break). For films, these exclusivity provisions include services such as “preproduction (rehearsal, costume fittings, etc.), production (i.e. principal photography), postproduction (which may include special effects work, dubbing, and reshoots), and publicity for the film.”¹²³

Nevertheless, at least one recent Ninth Circuit decision (ITN) applying California law has extended Section 16600 to invalidate in-term noncompete agreements as well. This extension impacts not only in-term noncompetes, which limit an employee from working in a certain area, but also exclusivity provisions, which restrict an actor’s ability to work in other productions entirely. As in-term noncompetes are less restrictive than exclusivity provisions, the policy reasons in support of the Code’s extension to capture in-term noncompetes may capture exclusivity as well.

B. Section 16600 Application to In-Term Provisions

Following years of consistent judicial application by California courts, Section 16600 prohibits most post-term noncompete agreements. The more difficult inquiry is whether Section 16600 does or should apply to in-term exclusivity and noncompete agreements for actors. In 2021, the court for the Southern District of California summarized the precedent set by California courts that Section 16600 applies only to bars on post-employment, not in-term employment, competition in Youngevity Int’l, Corp. v. Smith: “Section ‘16600 does not apply to restrictions on a person’s ability to engage in a lawful business while that person is employed by the company to which he or she promised loyalty. . . . Rather, § 16600 targets restrictions on post-employment activity.’ ”¹²⁴ In-term prohibitions on competition have allowed employers to rely on an employee’s loyalty and commitment while employed.¹²⁵ Further, in Techno Lite, Inc. v Emcod, LLC (2020), the California Court of Appeals notes that “[a]ppellants do not cite—and we have not found—a single case in which Section 16600 was held to invalidate an agreement not to compete with one’s current employer while employed by that employer,” rejecting an argument that Section 16600 could apply to restrictions on employees while currently employed.¹²⁶

However, in 2017, the Ninth Circuit Court of Appeals applied California state law in ITN Flix, LLC v. Hinojosa to hold that Section 16600 does in fact apply to invalidate “in-term” noncompete clauses lasting only for the term of employment set by the contract.¹²⁷ If Section 16600 is extended to prohibit in-term noncompete and exclusivity terms (as is suggested by ITN), many existing practices in the entertainment industry could be legally vulnerable. In ITN, an actor’s Master License Agreement (“MLA”) and Acting Agreement (“AA”) were found to be void as unlawful restraints on trade since they limited the actor’s right to pursue lawful employment.¹²⁸ The actor had entered into the MLA and AA contracts after starring in a film franchise built around his “vigilante character” role.¹²⁹ The contracts limited the actor’s ability to play “vigilante characters” in other films, as well as his ability to appear in similar films from 2006 to 2013 (a term of seven years brushing against the outer limit of California’s “Seven Year Rule” for personal-service contracts).¹³⁰ The film was a box office flop.¹³¹ The actor then starred in a later film as a “vigilante character,” which was a commercial success.¹³² The producer of the original film, Medina, sued for the actor’s breach of contract and argued that the MLA and AA were valid contracts not to compete, as Section 16600 “does not apply to ‘in-term’ non-compete clauses that last only for the term of employment set by the contract.”¹³³

The court disagreed and said that “[u]nder Cal. Bus. & Prof. Code [Section] 16600, both the MLA and AA are void as unlawful restraints on trade because they limit the right of [the actor] to pursue lawful employment.”¹³⁴ In rejecting Medina’s argument that Section 16600 applies only to post-term noncompetes, the court stated—in no soft terms—that “[b]oth California courts and the Ninth Circuit have rejected [that] argument,” citing two cases in support of their bold statement that Section 16600 applies to invalidate in-term noncompetes: (1) Kelton v. Stravinski (a 2006 California Court of Appeals case) and (2) Comedy Club Inc. v Improv West Associates (a 2009 Ninth Circuit case).¹³⁵ Both of these cases, however, discuss noncompete agreements in contexts outside of the employment context—first the franchise context and later in partnerships—raising the question as to whether the court in ITN was stretching to find support for its policy stance.¹³⁶ California courts have explicitly stated that the “reasoning [in certain cases] is tied to the franchise context,” meaning a case involving a franchisor and franchisee is not directly analogous to a case involving an actor and their employer.¹³⁷ Thus, the extension of Section 16600 to in-term noncompetes does not seem to be supported by existing laws or cases.

First, Kelton involved two partners who developed industrial warehouses and thus had a partnership relationship as opposed to that of an employee and employer.¹³⁸ The partners had agreed to a covenant not to compete which prohibited them from building warehouses independently.¹³⁹ After one partner allegedly breached the covenant, the California Fifth District Court of Appeals held that the covenant was invalid under Section 16600, as it did not fall under any exceptions to the Code and “[i]n the partnership context, an ongoing business relationship [between the parties] does not validate the covenant [not to compete],” or create a Section 16600 exception.¹⁴⁰ Further, the partners in Kelton limited the fiduciary duties owed to one another to only those rising out of the Partnership’s property, explicitly stating that they had no “obligation to refer to the Partnership or to the other Partner any business opportunity,” and that “each partner could ‘engage in other real estate activities, . . . competitive with the Partnership or otherwise.’ ”¹⁴¹ This is significant, as a large policy reason for enforcing in-term noncompete covenants is the expectation of loyalty that accompanies them. Here, the partners expressly limited both their fiduciary duties and any expectations of loyalty regarding real-estate developments.¹⁴² This makes the facts in Kelton distinguishable from those in ITN, and, while cited as a supporting case for the application of Section 16600 to in-term noncompetes, support for ITN from Kelton is not strong due to the factual differences between a business partner and an employee.

The second case cited in ITN supporting the ban on in-term noncompetes in the employment context is Comedy Club Inc. v. Improv West Associates.¹⁴³ Comedy Club involved two businesses that agreed to an exclusive Trademark License Agreement, which was later breached.¹⁴⁴ The Ninth Circuit Court of Appeals stated that “an in-term covenant not to compete in a franchise-like agreement will be void if it ‘foreclose[s] competition in a substantial share’ of a business, trade, or market.”¹⁴⁵ However, the MLA and AA in ITN did not resemble a franchise agreement. While Comedy Club held the franchise’s in-term noncompete was invalid, Comedy Club involved two businesses in a franchise agreement—not an employee and an employer like in ITN.¹⁴⁶ Further, the Ninth Circuit in Comedy Club refused to void the entire in-term covenant.¹⁴⁷ Instead, it weighed the interests of the plaintiff in operating its business against those of the defendant seeking to protect its trade name and goodwill, creating a compromise which allowed the plaintiff to operate in certain areas in which the defendant did not already operate.¹⁴⁸

The Comedy Club court does note that “California courts are less willing to approve in-term covenants not to compete outside a franchise context because there is not a need ‘to protect and maintain [the franchisor’s] trademark, trade name and goodwill.’ ”¹⁴⁹ This suggests that in-term exclusivity provisions may be subject to some challenges if they are not drafted with appropriate terms.

Lastly, Medina argued that Section 16600 should not be applied to the entertainment industry, as it “would be unworkable because personal services contracts are so often needed to ensure the availability of celebrities.”¹⁵⁰ While the court was not persuaded by this argument, maintaining its stance that this noncompete was illegal regardless of scheduling implications, Medina’s argument touches on some of the most important issues that would stem from an extension of Section 16600 to in-term noncompetes.¹⁵¹ Scheduling work on large productions would be more difficult, potentially raising costs and slowing the pace of production. Further, studios have an interest in ensuring their stars do not accept similar roles in the same time frame during which their films are being released, as it could lower viewership and performance. It is also important to note that exclusive personal-service contracts today are the product of a freelance entertainment industry in which actors are cast for specific roles, as well as extensive collective-bargaining negotiations in which both actors and studios are represented. Actors need protection from exploitation, and unions (such as SAG-AFTRA) will go on strike to ensure actors’ interests are adequately represented in collective-bargaining negotiations. The resulting contracts are far less demanding than those that existed in the 1930s, and interference by the courts with the established system and the agreements that have resulted from it may raise more problems than solutions. It may be best to allow unions and studios to reach their desired outcomes without judicially imposed boundaries on in-term noncompete agreements.

One way to reconcile the outcome of ITN with the overwhelming enforcement of in-term noncompetes is by treating the MLA and AA as post-term noncompete agreements. While the court said the actor’s contract was an in-term prohibition, it is possible that it actually categorized the MLA and AA as post-term noncompete contracts and treated them as such, since both restricted the actor’s work after the film was released. Thus, the contracts may have been post-term prohibitions on competition and invalid for that reason, despite the courts “in-term” language. This would allow the result in ITN to be accurate while maintaining the concept of exclusivity. Further, the importance of this distinction highlights the nuances and gray areas that exist in an actor’s contract. A contract may be “in-term” if it applies for a set number of years or seasons of a show, while also operating as “post-term” if it continues to limit the actor after filming has wrapped and an actor’s services are no longer actively needed.

Another possibility is that the Ninth Circuit in ITN simply incorrectly overapplied Section 16600 in an effort to show its recognition of California case law as distinguished from the more lenient noncompete laws of other states in the Ninth Circuit. In the past, the Ninth Circuit has issued certified questions to the California Supreme Court regarding noncompetes, as it did in Ixchel Pharma v. Biogen, asking how broad Section 16600 is in its reach.¹⁵² Further, in 2008, the California Supreme Court had explicitly rejected the “narrow-restraint” exception previously used by the Ninth Circuit.¹⁵³ The Ninth Circuit therefore may have improperly applied Section 16600 due to confusion regarding the scope of the Section or in an effort to show its recognition of California law as distinguished from other states in the Ninth Circuit.

ITN may also suggest that certain situations in the acting industry can trigger the application of Section 16600 to hold an in-term noncompete invalid if it is unduly harsh. The actor’s contracts, while technically within the seven years allowed for a personal-service contract in California, were at the outer limits as they lasted for a full seven years. Perhaps a shorter period, such as three or four years, would have led the court to reach a different conclusion.

Despite the plausible explanations above reconciling ITN with existing California case law, ITN is likely an outlier on the treatment of in-term noncompetes in California. In Edwards, the Supreme Court of California invalidated a noncompete agreement that forbade a former employee from working with certain clients and soliciting other employees for periods of twelve to eighteen months after his employment terminated.¹⁵⁴ The Supreme Court “did not address—much less invalidate—agreements by employees not to undermine their employer’s business by surreptitiously competing with it while being paid by the employer.”¹⁵⁵ This suggests that if an employee is still being paid, in-term noncompetes are entirely valid. As the California Supreme Court has not weighed in on the treatment of in-term noncompete agreements, its deferential stance in Edwards to legislative intent signals that it may be waiting for clarification from the lawmaking branches of the California government before extending Section 16600 to in-term covenants. Further, the transition away from the studio system of the 1930s (in which actors were held off the market for long periods of time) to the freelance model of talent contracts today, accompanied with the introduction of the “Seven Year Rule” in California, has put in place protections for actors that seem to absolve the need for any total ban on exclusivity or in-term noncompete agreements.

C. Section 16600 Application to Post-Term Noncompete Provisions

It is generally accepted that Section 16600 prohibits post-term noncompete provisions in California.¹⁵⁶ Post-term noncompetes prevent former employees from working for a competitor or soliciting clients for a certain amount of time.¹⁵⁷ Most cases interpreting Section 16600 under California law fall in this post-employment context, as the statute has consistently invalidated covenants not to compete that interfere with an employee’s ability to compete after they cut ties with a former employer.¹⁵⁸

Post-term noncompete clauses in the entertainment industry are not common but might include provisions forbidding an actor from working in a production associated with a rival television network or film studio, even after all work has been completed for the current role. Terms with similar effects, however, may be included in the contracts of megastars preventing them from accepting roles with competing studios.¹⁵⁹ This represents the unique gray area in talent contracts, in which it appears an actor has completed a term of their contract (as filming for the movie is done), yet the actor may have a three-picture contract bringing these terms within the scope of in-term exclusivity.

Interestingly, the LA County Superior Court seems to take the stance that post-term noncompete agreements are valid in the narrow fixed-term employment context where an employee leaves in the 2020 case Viacom v. Netflix.¹⁶⁰ This is particularly relevant in the acting industry, in which talent contracts are generally for a set term as opposed to at will. The holding of Viacom, applied to talent contracts, suggests that noncompete agreements restricting an actor’s ability to accept roles after a contract has ended could actually be valid where the actor is the party that breaches the contract. In Viacom, an executive employed by Viacom (an entertainment company) with a fixed-term employment contract left her job nineteen months prior to the end of her contract to work for Netflix.¹⁶¹ Viacom sued Netflix, seeking a permanent injunction enjoining Netflix from taking its employees in this manner, as well as damages.¹⁶² The disputed noncompete provisions from the executive’s employment agreement read

Your employment with the Company is on an exclusive and full-time basis, and while you are employed by the Company, you shall not engage in any other business activity which is in conflict with your duties and obligations (including your commitment of time) to the Company . . . .
The “Non-Competition Period” begins on the Effective Date and ends on the last day of the Contract Period, provided that:
1. If the Company terminates your employment without Cause before the end of the Contract Period, then the Non-Competition Period shall end on the earlier of (i) the end of the period in which you are receiving payments pursuant to paragraph 11(b)(i) or (ii) the effective date of your waiver in writing of any right to receive or continue to receive compensation and benefits under paragraph 11. You shall be deemed to have irrevocably provided such waiver if you accept competing employment.
2. If the Company terminates your employment for Cause or you resign, the Non-Competition Period shall end on the earlier of (i) the last day of the Contract Period or (ii) eighteen (18) months after such termination or resignation.¹⁶³

While Netflix argued that the covenant was an unlawful prohibition preventing the employee from working in similar positions for eighteen months post-employment, the court disagreed.¹⁶⁴ The court stated that there is no case law supporting the argument that fixed-term contracts not to compete are invalid given that the employee voluntarily left Viacom under assurance from Netflix that she would be indemnified and would not have to pay legal fees.¹⁶⁵ While Section 16600 would invalidate the noncompete if the employee had been terminated by Viacom, this case suggests that a noncompete provision for a set amount of time will be upheld where the employee voluntarily leaves their position.¹⁶⁶ Applied to talent contracts, actors who sign fixed-term exclusivity and noncompete contracts for the filming of their television shows or films may have agreed to valid noncompete provisions in the case that an actor quits in order to pursue a different role, regardless of whether the noncompete becomes post-term.

In Viacom, the noncompete was valid because the employee was not terminated but chose to leave to work for a competitor, thus forsaking her position and its salary voluntarily.¹⁶⁷ Had the employee instead been terminated, Section 16600 would undoubtedly be implicated.¹⁶⁸ Additionally, the court notes that at will employment contracts (as opposed to fixed term) with identical language would prove to be unlawful.¹⁶⁹ This raises an interesting question regarding option contracts.¹⁷⁰ Further, it seems as though the court wanted to hold for Netflix from a policy perspective.¹⁷¹ The court expressly stated that it believes Viacom’s fixed-term employment contracts may violate Section 16600, but that it is unable to find binding case law in support of this position.¹⁷² This is an interesting narrowing of Section 16600 in finding post-term noncompete terms legal in the situation in which an employee leaves, with particular application to the acting industry where the actor will typically be the one breaching an exclusivity provision in order to render outside work. While helpful in noting that California case law does not suggest that exclusivity in a fixed-term contract is unlawful, this is a Superior Court case and is thus not binding.¹⁷³ The court itself seems to struggle with the outcome and is perhaps expressing its struggle with existing precedent in an effort to open the door for the California Supreme Court to weigh in on the matter.

Steinberg Moorad & Dunn, Inc. v. Dunn, an unpublished 2005 Ninth Circuit case referenced in Viacom, takes the view that a post-term noncompete is invalid regardless of whether the employee left or was fired: “[w]hen an employee leaves, be it before the term of employment has ended or not, [S]ection 16600 prohibits the employer from preventing that employee from pursuing his trade.”¹⁷⁴ The Viacom court states that, while it would like to rely on Steinberg as persuasive, it is unable to do so because, as an unpublished case, it lacks the specific facts needed to analyze Viacom’s noncompete clause.¹⁷⁵ This further suggests that some direction is needed from the higher state courts in California or the legislative branch on the application of Section 16600 when an employee is the one to cut ties with the employer in a fixed-term exclusivity contract.

While Viacom represents a narrow application of Section 16600 to allow post-term noncompetes, the application is important in certain contexts such as Silicon Valley where technology companies are constantly poaching employees with key information regarding data breakthroughs such as self-driving car technology.¹⁷⁶ However, the nuanced application of the Code to the general prohibition on post-term noncompetes (allowing them where the employee leaves a fixed-term contract) may have unintended consequences by restricting the movement of talent in the acting industry.

D. Factors Unique to the Entertainment Industry

In determining whether Section 16600 should apply to noncompetes in talent contracts, perhaps talent contracts should be evaluated under a unique standard that considers the nuanced aspects of acting, such as fame. Are actors distinct from other employees whose in-term noncompetes in California are valid? As touched on in the discussion of ITN above, a gray area exists within noncompetes in which a contract may be ongoing, but an actor is no longer actively working on a project. A theoretical argument can be made that fame should play a role in the analysis. While most employees merely provide labor, actors are involved in a finished product, the value of which may turn on an actor’s reputation. This is particularly relevant when an actor is a widely recognized celebrity, known for their portrayal of certain characters or for a certain genre. For example, horror films or children’s films. Perhaps an actor is different from a typical employee in that the subsequent work of a “famous” actor could impact their image, and in turn, the value of the character created in a series or film owned by the studio. If this is the case, fame could be an important factor in the analysis of exclusivity provisions. While the actions of a little-known actor after a film or series airs will likely be inconsequential, the press surrounding a major celebrity may have a large impact on the success of a program.

This can be exemplified by the controversy surrounding Daniel Radcliffe’s involvement in Equus, a play in which Radcliffe appeared “full-frontally nude in a prolonged scene.”¹⁷⁷ Following Radcliffe’s nude appearance in the play, press speculated whether the star of the Harry Potter film franchise would be denied the role in the last two films, as the franchise was widely popular with children. One comment on a Harry Potter fan site following news of Radcliffe’s role in Equus with mature scenes read, “We as parents feel Daniel should not appear nude. Our nine-year-old son looks up to him as a role model. We are very disappointed and will avoid the future movies he makes.”¹⁷⁸

On the other hand, Daniel Radcliffe’s role in Equus did not seem to hinder the success of the final two Harry Potter movies, as “[t]he eighth and final Harry Potter movie was . . . the third-biggest movie of all time behind only Titanic . . . and Avatar,” bringing in $1.342 billion in the global box office.¹⁷⁹ If viewers do not place substantial weight on an actor and instead focus on the character portrayed, the argument that fame should be factored into the legality of post-term exclusivity terms is substantially weaker.

IV. SUMMARY OF CASE ANALYSIS

Analyzed through the lens of Section 16600, in-term noncompetes and exclusivity provisions in the acting industry seem to fall outside the scope of the Code’s prohibition of post-term noncompetes and are thus, at least in the general sense, legal. This does not mean, however, that the line is clear-cut or that all in-term noncompete and exclusivity clauses are watertight in their legality. Some in-term noncompete provisions may be prohibited if they are too broad in their restrictions or if they are not well-drafted. The Ninth Circuit’s application of California law in ITN exemplifies a court’s refusal to enforce an actor’s exclusive MLA and AA agreements even for in-term contracts, as the studio’s ban on the actor playing other “vigilante characters” for seven years was an illegal prohibition on the actor’s right to work. While this case is an outlier in an otherwise mostly unified interpretation of Section 16600’s application to post-term noncompete provisions, it indicates that in some instances, reasonableness and length of a contract may still be used to judge the legality of an in-term noncompete agreement.

Conversely, post-term exclusivity provisions are exactly what the California Code was designed to prevent and are generally illegal, except (as Viacom suggests) perhaps in the narrow situation where the employee voluntarily leaves the employer. In California, an employer cannot prohibit a former employee from working after they have left. Viacom interprets the Code, however, as allowing noncompetes in fixed-term employment contracts where the employee voluntarily leaves but prohibiting them when it comes to at will contracts with no end date. It is notable that the court in Viacom, however, believes that these contracts are perhaps illegal but is unable to hold that they are due to the lack of precedential case law on the matter. This may be a signal that it is time for the California Supreme Court to weigh in on the distinction between post-term and in-term exclusivity provisions under Section 16600 and explain that—as currently written and interpreted—it does not extend to invalidate in-term exclusivity and noncompete agreements. The California Supreme Court may also need to articulate whether post-term noncompetes are allowed in the narrow situation where an employee voluntarily leaves.

Another interesting distinction can be made between actors and nonactor employees; while actors are classified as employees, they are distinct due to their fame and their reputational value that has the potential to impact a final work product. This may support the theoretical argument that fame should be considered in analyzing exclusivity and noncompetes. However, if viewers can separate an actor from the roles they play, this may not be an issue.

The table below summarizes the standard from the majority of California cases interpreting Section 16600.

Figure 1.

Section 16600

In-Term Exclusivity

Post-Term Exclusivity

Exclusivity terms are heavily negotiated in television talent contracts, yet not heavily negotiated film talent contracts.

Typically legal if narrow in scope and well-drafted.

Often illegal if at will.

Potentially illegal if Section 16600 is extended to invalidate restrictive in-term exclusivity.

(ITN)

Potentially legal if fixed-term and the employee voluntarily leaves.

(Viacom)

CONCLUSION

California is firm in its stance against post-term noncompetes, yet an acting industry specific analysis suggests that the unique attributes of talent contracts may require a more nuanced approach. The rise of online streaming has changed the demands placed on actors, with shorter series seasons contributing to an increase in idle time. The landscape is changing rapidly, resulting in the frequent renegotiation of terms and resulting standstills, exemplified by the 2023 SAG-AFTRA strike.

The in-term and post-term treatment of exclusivity provisions and noncompetes has received conflicting treatment by California and Ninth Circuit Courts, suggesting that perhaps the California Supreme Court should weigh in on the matter as they did in 2008 with Edwards and articulate whether Section 16600 can apply to in-term noncompete and exclusivity provisions.¹⁸⁰ While it is widely held that Section 16600 does not apply to in-term noncompetes, the holding in ITN suggests that certain situations in the acting industry may trigger its application and deem an in-term noncompete invalid if unduly harsh.¹⁸¹

Viacom suggests that in certain instances where an employee breaches a fixed-term exclusivity provision, post-term noncompetes may be upheld. Regardless, the ability of actors and unions to negotiate with studios for mutually beneficial terms has allowed common practices in entertainment contracts to shift over time without much recent legislation. This suggests that, while the applicable law will provide one side with bargaining power, negotiations and collective-bargaining agreements will largely continue to set the standards for common entertainment contract practices.

97 S. Cal. L. Rev. 1087

Download

Katarina Ulich*

* J.D. Candidate 2024, University of Southern California Gould School of Law. To my parents, thank you for being my best friends and biggest supporters.

Labor’s New Localism

May 2022October 2022Andrew Elmore*

Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act (“NLRA”) does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to strengthen labor and employment law, unions and worker centers have increasingly sought to build power in cities. The shift to local labor lawmaking has delivered local minimum wage, paid sick leave, and fair scheduling ordinances covering millions of low-wage workers, as well as groundbreaking unionization and collective bargaining agreements, including in regions of the United States historically hostile to unions. This has positioned cities as a primary staging ground for labor law reform.

This Article examines this trend as a rejuvenated labor localism and this trend’s effects on state and local government law and labor and employment law. Labor localism advances the democratic values of labor and local law by channeling worker and community protests and bargaining through the direct democracy mechanisms of cities, instead of or in addition to the NLRA. While provoking fierce employer campaigns seeking state preemption of local lawmaking, labor localism can often manage these state-local conflicts by engaging in state law reform and pivoting to adjacent areas. Modest home rule reform can improve its stability and reach and, contrary to conventional wisdom, improve local accountability. Labor localism, finally, reveals the central roles of localism in enabling a bottom-up reform effort to counteract the weaknesses of federal labor law and in safeguarding democratic norms in the United States.

* Associate Professor, University of Miami School of Law. The author would like to thank Kate Andrias, Jennifer Breen, Richard Briffault, Scott Cummings, Nestor Davidson, Catherine Fisk, Kati L. Griffith, Patrick Gudridge, Laura Huizar, César F. Rosado Marzán, Joseph McCartin, Michael Oswalt, Richard Schragger, and Jocelyn Simonson for their insightful comments on an earlier draft, and Andrew Denny, Shanzay Pervaiz, and the Southern California Law Review editors for excellent research assistance. This project also benefitted from feedback at the 9th Annual State & Local Government Works-in-Progress Conference, the 2020 Southeastern Association of Law Schools Conference, and the University of Miami School of Law Legal Theory Workshop. All errors are the author’s.

Download

Unbundling Freedom in the Sharing Economy – Article by Deepa Das Acevedo

July 2018October 2018Southern California Law Review Admin

From Volume 91, Number 5 (July 2018)
DOWNLOAD PDF

Unbundling Freedom in the Sharing Economy

Deepa Das Acevedo [*]

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.

Drawing on a first-of-its-kind 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 non-interference and non-domination. 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 work.

TABLE OF CONTENTS

Introduction

I. Defining Work Relationships

A. What’s in a Name?

B. What’s the Matter with Control?

II. Freedom at Work in the Sharing Economy

A. Freedom as Non-Interference

B. Freedom as Non-Domination

C. Conflicting, Not Concentric Freedoms

III. Freedom(s) In, and Through, Work Law

A. Non-Interference and Non-Domination in Work Law

B. Tension, Confusion, or Failure?

Conclusion

Introduction

In 2015, the Northern District of California issued one of the most widely cited opinions on employment regulation in the sharing economy.[1] The dispute in Cotter v. Lyft was a relatively standard one—whether a company had misclassified a particular set of workers as independent contractors when in fact they ought to have been employees [2]—and the substance of the court’s analysis and ruling were similarly routine.[3] What made the Cotter opinion stand out, aside from its efforts to grapple with an unfamiliar economic space, was Judge Chhabria’s snappy summary of a widely recognized problem in worker classification law. Because the standard “control” based test for worker classification suggested that Lyft both did and did not control the drivers who operate on its platform (and that consequently the drivers could be either employees or independent contractors) “the jury,” Judge Chhabria observed in closing, “will be handed a square peg and asked to choose between two round holes.”[4]

The common law control test purports to distinguish employees from independent contractors on the grounds that employees enjoy less freedom in the “manner and means” of their work and thus merit a host of work-related safeguards.[5] Judge Chhabria argued that the misfit between legal categories and work practices stemmed from the fact that a “20th Century” test was being applied to a “21st Century problem” like the sharing economy [6]—but in truth, the control test seems to have always suffered badly from cubism. Before Lyft drivers, for instance, there were FedEx drivers whose facial hair and sock color were dictated by FedEx and McDonald’s workers whose speech and hand motions were mandated by McDonald’s, all of whom were sometimes found to be independent contractors (and sometimes not).[7] Indeed, for virtually the entirety of its existence, the control test has proven unsatisfactory to courts and scholars—and, at least once, to Congress—because it is inefficient and often seems inaccurate.[8] But if control-based analysis is so deeply problematic, why has it also been so tough to get away from?

The concept of control has proven both “faulty” and “sticky” when it comes to worker classification because it captures one—but only one—of the two conflicting ways in which courts, scholars, and workers themselves think about freedom at work. One of these ways, which is more prominent as well as adequately captured by the control test’s “manner and means” analysis, is a classically liberal understanding of freedom as non-interference.[9] The second, less influential (but still widely visible) model is a thicker vision of freedom as non-domination.[10] These competing conceptions shine through with striking clarity in the sharing economy, but they are also apparent in other business contexts and clearly discernible from a sky–view analysis of our labor and employment infrastructure. The tension between these two visions of freedom is why scholarship and jurisprudence on worker classification has been filled with criticisms of the control test, yet unable to meaningfully move beyond it.

This paper makes two contributions to legal scholarship. First, it speaks to labor and employment law scholars by showing that control-based worker classifications, problematic as they may be, are linked to a particular vision of individual autonomy that is very compelling in America. While the consequences of courts’ reliance on control often seem perverse (as when innumerable workers are denied employee status because they are not directly or sufficiently controlled by their respective employers), the conception of personal freedom behind that analysis demands serious and careful treatment. Critics of the current classification regime do themselves no favors by trying to eliminate, supplant, or declaw control-based analysis. This is not so much because doing so constitutes the usual mistake involving babies and bathwater, but because critics fail to recognize that the baby and the bathwater are in some ways indistinguishable.

Second, this paper contributes to a broader conversation within the legal academy about the role of qualitative social science in the study of law. As I have argued elsewhere, the kinds of insights gleaned from ethnographic research are different from those facilitated by other empirical (and especially quantitative) forms of social science, but they are hardly incommensurable with the interests or the intellectual values of legal scholars.[11] Here, I use ethnographic fieldwork on the sharing economy as well as legal analysis of our labor and employment infrastructure to reveal the twin conceptions of freedom described above and to show why the tension between them creates problems for employee classification doctrine. The type of “cultivated attentiveness” that makes such a doctrinal critique possible is precisely why ethnographic research is a different but profoundly valuable mode of interdisciplinary legal scholarship.[12]

Part I begins with a brief overview of the origins of our classification system that highlights the centrality of freedom as an analytic rubric. I then detail the stakes of employee status as well as the criticisms that the existing system has provoked. Part II contains the ethnographic heart of the Article. Section II.A uses ethnographic research to demonstrate that workers in the sharing economy sometimes value independent contractor status and associate it with freedom-as-non-interference, while Section II.B shows that sharing economy workers and their advocates rely on a conception of freedom that is more akin to non-domination when they express concern about the lack of autonomy in this type of labor. Part III draws on case law and statutory law to demonstrate that these conflicting visions of freedom also exist in our labor and employment law infrastructure.

I. Defining Work Relationships

The building blocks of work law are imports from elsewhere: the categories “employer” and “employee” arrived from the law of agency via vicarious liability, while the characterization of the employment relationship itself comes from contract law.[13] Labor and employment scholars have long bemoaned this lack of locally cultivated concepts (particularly as it relates to worker classification) because they believe that it creates a misfit at the foundation of our regulatory infrastructure.[14] And, they argue, the primary cause of that misfit is the importance of control in the allocation of the protections and benefits described below.[15]

But scholars and courts misdiagnose the precise nature of the problem: control is important, to be sure, and that importance derives from classification doctrine’s link with agency law—but control is really just a proxy for measuring worker freedom.[16] As the categories “employee” and “independent contractor” developed over the nineteenth century, placing individual workers into one bucket or the other was meant to reflect a sense that some workers were merely agents of their employers and not really free to act independently.[17] It followed that employers sometimes ought to be responsible for injuries caused or incurred by those workers (“employees”) who relinquished freedom in the performance of their tasks because, after all, it was the employers themselves who had dictated the “manner and means” in which tasks were to be performed.[18] As it turns out, however, “manner and means” analysis only captures one of the ways in which workers, scholars, judges, and even occasionally legislators have thought about what it means to be free at work.

That is where the trouble really lies—in the overlooked complexity of the concept of freedom. Unlike critiques that emphasize the narrowness of control-based analysis or the different goals of agency versus work law, an analysis that focuses on freedom can explain both the faultiness and the stickiness of the control test. Otherwise it becomes mystifying, as indeed it has been to generations of critics, why a test that dispenses the safeguards of employee status as inefficiently and stingily as the control test nonetheless retains such conceptual punch.[19]

A. What’s in a Name?

The United States funnels an extraordinary range of protections and benefits through work relationships. Moreover, the vast majority of these safeguards, at both federal and state levels, are only available to workers who are categorized as employees.[20] Core safeguards linked to employee status include anti-discrimination and harassment protections based on protected categories like race, religion, sex, national origin, disability, and age (including the duty to accommodate, where applicable);[21] job protections for family and medical leave;[22] equal pay guarantees as between men and women;[23] minimum pay guarantees and rules about when over-time rates of pay should kick in;[24] fiduciary standards regarding health and retirement benefits (as well as the bulk of such benefits themselves);[25] workplace safety protections;[26] and, of course, protections for workers who engage in concerted or union activity.[27] All of these and more hinge on being the right kind of worker for the right kind of employer and even, sometimes, being in the right kind of industry.

To be sure, some of these safeguards, like unionization rights or workplace safety protections, are self-evidently related to work, although not necessarily to employee status. Others, like the imposition of certain fiduciary standards regarding the management of health and retirement benefits, have no necessary connection to work at all—as Americans partly began to experience under the Affordable Care Act.[28] This is not the place to rehash longstanding debates on the wisdom of tying safeguards to work in general; for better or worse, our social safety net is unlikely to become meaningfully detached from the work relationship in the foreseeable future.[29] Rather, it is simply worth noting that the range of benefits tied to work is largely co-extensive with the range of benefits tied to employee status because doing so explains why so many scholars (to say nothing of workers, worker advocates, and governmental actors across branches and jurisdictions) have been vexed by the issue of worker classification: many of the procedural and substantive safeguards that greatly contribute to a decent life are funneled through employee status.[30]

Despite the undeniable importance of worker classification, it is notoriously difficult to determine whether any individual worker is an employee or an independent contractor.[31] Statutes are of little help: several of the most significant federal acts contain delightfully circular language like “[t]he term ‘employee’ means an individual employed by an employer.”[32] In a 1992 case involving the Employee Retirement Income Security Act (ERISA), the Supreme Court held that such circular language reflected congressional reliance on the “common understanding . . . of the difference between an employee and an independent contractor” that in turn mandated judicial reliance on the common law control test.[33] Courts soon extended the holding to statutes beyond ERISA so that now the control test is the default for federal work law protections.[34]

Case law has also been of little help despite the fact that “the real work of identifying ‘employees’ . . . has always been in the courts.”[35] In the course of trying to implement the Fair Labor Standards Act’s (“FLSA”) broader definition of what it means to be an employer—to “suffer or permit to work,” rather than to control the means and manner of performance—some courts developed the “economic realities” test as an alternative to control-based analysis.[36] This new test was meant to expand the scope of analysis by considering workers’ economic dependence on their employers and functional (rather than merely nominal) employer control.[37] But the economic realities test has also come to draw criticism, partly because its multiple factors are open to divergent interpretations and partly because many of those factors bear a curiously strong resemblance to factors that are considered under the common law test.[38]

B. What’s the Matter with Control?

The two criticisms of the economic realities test mirror the primary complaints about worker classification doctrine more broadly: it offers little guidance and it really always boils down to control-based analysis.[39] That tendency to revert to measuring and weighing control is in turn troubling because the control test seems prone to excluding workers with diminished freedom from the agreed upon suite of employment related safeguards.[40] Sometimes the exclusion simply occurs when workers are labeled independent contractors rather than employees of the companies they work for. This is the case with the decades-long litigation over FedEx delivery drivers, whom the Ninth Circuit described as being subjected to “exquisite” forms of control, notwithstanding FedEx’s claims that they were independent contractors.[41] But critics also fault the control test for narrowly construing who counts as an “employer” and thus absolving companies of their obligations under various statutes. This is the impetus behind efforts to hold franchisors like McDonald’s liable as joint employers of their franchisees’ direct employees.[42]

It is precisely this narrowness, critics argue, that led Congress to abandon the common law definition of “employee” when drafting the FLSA and to instead adopt the wider “suffer or permit” standard used in state child labor laws;[43] that led the Supreme Court in NLRB v. Hearst to argue for a “purposive” reading of the National Labor Relations Act, with its more expansive understanding of “employee” status;[44] and that led various federal courts to embrace an economic realities analysis that accounts for worker dependence.[45] A survey of worker classification literature brings such efforts to minimize or supplant control-based analysis into sharp relief, but it also reveals that courts, regulators, and even scholars continue to think about classification in terms of control.[46] Why?

One set of explanations argues that they keep returning to control because some particular feature of the law or its application pushes them to do so. The “feature” in question is often broad, like a failure to adapt given changing modes of production, or the fact that courts often engage in formalist rather than purposive analyses of employment statutes.[47] It is also often foundational to labor and employment law, like when scholars argue that our troubles arise from the inherent difficulty of distinguishing between the “contracting” and “producing” phases of employment relationships as the law essentially requires us to do.[48] Whatever the cause, the end result is that law fails to accurately regulate labor because it ties employee status to a kind of direct and active interference in worker autonomy.

Because law is the problem in these accounts, law is also the solution. Regulators should have different tests, different defaults, or different interpretive rubrics, so they can more accurately identify control in work relationships. In a pinch, they can draw on other areas of the law—antitrust is an emerging favorite—to mitigate the failings of the specific legal infrastructure governing work.[49] But arguing that some longstanding feature of “law” is responsible for failures to accurately understand and regulate some feature of “society” does not explain why even critics find it so difficult to let go of that feature, and it has the unfortunate side effect of reifying law as a thing that exists apart from and above the social world.

Conversely, another approach has been to say that courts, scholars, and even workers keep returning to control because they embrace the law’s narrow, formalist conception of freedom as non-interference and find it meaningful.[50] For example, some taxi drivers might prefer to be independent contractors because they genuinely feel this classification signals and enables greater autonomy than the category “employee.”[51] Likewise, courts might find independent contractor status to be both an accurate signal and effective source of “entrepreneurial opportunity.”[52] Since this type of argument also posits that legal categories are themselves historically contingent—say, in the way that the independent contractor classification became linked with entrepreneurship and freedom during the heyday of twentieth century neoliberalism—it is especially adept at acknowledging the mutually constitutive nature of law and society.[53] But precisely because it is so good at explaining why legal constructions of control gain social salience as well as how they are socially informed to begin with, this approach tells us little about why generations of scholars, workers, legislators, and judges have felt that control-based analysis just isn’t doing the trick.

In the end, we cannot explain the stickiness of control-based analysis without also accounting for the longstanding sense that it is inadequate. Likewise, we cannot explain control’s shortcomings without accounting for the fact that year after year, in court after court, and even for some of the workers whom it seemingly shortchanges, control and the categories it gives rise to continue to present a compelling vision of what it means to have or lose freedom at work. We can resolve both halves of the puzzle by understanding that our classification system has really been predicated on measuring freedom (not control), and that the common law control test captures one—but only one—of the two conflicting ways in which lay and legal actors think about freedom at work.

Because this is an exercise in chasing complicated concepts, it can be helpful to begin with the lived experiences of actual people and in environments that are relatively transparent. The ethnography that follows combines these advantages to reveal a tension in the way workers think about freedom that, in later sections, can also be seen in work law itself.

II. Freedom at Work in the Sharing Economy

The “sharing economy” refers to a broad set of companies that use technology to offer products and services in a highly disaggregated, individualized way. Not all sharing economy companies actually present work regulation issues, which is why most scholarly and policy commentary (not to mention judicial and legislative engagement) has been concerned with a limited subset of this space. I refer to those companies that actually pose labor and employment law issues as “platforms” and I distinguish them from others within the broader sharing economy (that I have elsewhere referred to as “renters” and “swappers”) on the grounds that platforms do more than apply new technology to old practices and are more than virtual bulletin boards for third parties.[54] Rather, platforms actively participate in the transactions they give rise to and occasionally substitute themselves for government safeguards.[55] For this reason, when we talk about work regulation in the sharing economy, we are really just talking about platforms.

The ethnography presented in this Article was conducted largely but not exclusively in Philadelphia from 2016 to 2017. I participated in application and training processes for sharing economy companies, worked for a few of those companies, and engaged in distance-education classes for aspiring online workers.[56] I also observed online chat forums and discussion threads catering to platform workers at a national (and sometimes international) level.[57] In addition to these forms of participant-observation, I conducted semi-structured interviews or informal conversations with platform workers, worker advocates, policy analysts, and municipal officials.[58] Lastly, I benefited from the prior efforts of journalists, analysts, industry experts, and advocates who conducted their own research and whose work, whether published for a general audience or directly shared with me, complemented and enriched my own ethnography.[59] One of these interlocutors rightly observed that fine-grained, qualitative data is essential to the task of questioning the cohesive, statistics-based narratives put forward by platforms regarding the true nature of this work and what it means for our regulatory system.[60] This Article uses ethnography to further that goal.

A. Freedom as Non-Interference

Workers suggest that the freedom afforded by platform labor is of three types: nobody tells me when to work, how to work, or how much I can earn. When stated this way, the autonomy-enhancing potential of the sharing economy is striking, as is the degree to which it contrasts with anything we might legally understand as employment. Although subsequent sections of this Article will show that this view of platform work rests on a narrow conception of freedom, there is no gainsaying the set of choices that platform workers can and do make as well as the real value of being able to describe your work using “I” statements.[61]

Consider Sam, a late 30s African-American man who drives for UberX (one of the company’s lower cost services) and occasionally works as a TaskRabbit tasker.[62] Sam has been driving for Uber ever since he lost his job last year as a technician for a major cable and internet provider, and he recently started doing some light furniture assembly and home repair work via TaskRabbit. He aims to drive around five hours per day and usually does this weekdays from 5–10 a.m. in order to catch the morning hospital and office crowds, and because it allows him to take care of his two children after school while his wife works. He never works weekends.

Driving is not Sam’s passion, but he enjoys chatting with passengers, setting his own schedule, and listening to his favorite music or playing games on his smartphone in between rides. He especially doesn’t miss the erratic schedules of his old technician job, which stressed him out and tied him up for most of the day, nor does he miss the local coordinator who (Sam feels) gave him especially rough timings because of personal animosity and who frequently criticized him for not completing jobs quickly enough. Moreover, he very much enjoys his TaskRabbit assembly work because it allows him to build tangible objects instead of just installing modems or fixing wires.

Sam does not know exactly how much he earns from his platform work. For a month before Christmas he also drove weekday afternoons, which got the family through the holidays but made it harder for him to estimate his average weekly take-home. He has not calculated his net income, but knows whether he earned less in a day than he spent on fuel that morning, he saves all his fuel receipts for tax purposes, and he figures that his TaskRabbit work involves no expenses at all except that new tool belt he bought two weeks ago.[63] When he first lost his job, Sam briefly thought about moving to an industry competitor or even getting a temporary retail or fast food job because of the hourly wage guarantee. In the end, however, he and his wife decided that their scheduling needs and his well-being pointed them towards platform work instead.

Sam’s story reads as one of intrepidity and relative convenience in the face of economic volatility, and indeed many platform workers (to say nothing of platform companies) articulate a similar, largely positive narrative of what it means to work in the sharing economy. But just as the glib presentation of platform work as easy and entrepreneurial hides far less pleasant realities, it also masks or trivializes the more meaningful positive aspects of this work.[64]

To begin with, setting one’s own schedule is about far more than mere convenience.[65] Indeed, many workers describe this aspect of their platform participation using language that smacks of empowerment and independence: “I never drive more than six hours a day” or “I only drive weekends.”[66] On the one hand, the ability to turn off an app or put a profile on hold allows workers to assert the primacy of their own priorities rather than allow them to play second fiddle to an employer’s timetable. On the other hand, platform work involves no reporting to supervisors—human or otherwise. There are no punch cards, no time sheets, and no bosses walking past desks. “I like Uber,” one driver said, “because [driving a] taxi is eight to eight, nine to nine.”[67] He added that he chose to drive full time rather than work in a casino like one of his brothers or in the family gas station business like another brother because he doesn’t like having to keep a schedule or deal with a boss.[68]

Likewise, not having a boss means more than having flexible schedules: it can also mean (within boundaries) the ability to embody flexible work styles to a degree where workers seem to be determining what the work is. An Uber driver can choose to put on some Hip Hop music in between passengers (or some high-decibel classical music with passengers in the car), just as she can decide to stay parked between rides instead of immediately driving to a high-density area or vice versa.[69] An Airbnb host can decide to allow guests to check themselves in (or not), to provide breakfast (or not), and to decide how many sets of linens are essential to successful hosting.[70] In other words, platform workers lack the over-the-shoulder supervision paradigmatic of traditional production or service jobs. Although this by itself does not make them unusual—taxi drivers and long-haul truckers are well–known examples [71]—it adds to the sense that they conduct their work lives in the relative absence of supervisory intervention.

Finally, just as there is no supervisor to set Sam’s schedule or tell him how to go about doing his work, there is also no supervisor rejecting his application for a raise or limiting his overtime hours. I do not mean to say that platform workers believe they can earn exceptionally large (much less unlimited) sums because they are only restricted by their own willingness to work or, more cynically, because they are only limited by their ability to game the platform’s algorithm. Some workers undoubtedly do still approach their platform labor with this attitude,[72] but they are likely rare; the conversation among workers and observers alike has come a long way from Uber’s childhood boasts of $90,000 annual incomes.[73]

Instead, when platform workers speak of their ability to control their own earning potential they tend to describe definite, but decidedly circumscribed goals: $200 per day, for example, or $200 per week, or enough to cover a particular expense like travel or car payments; the specificity of these goals represents a balance between their financial needs and their other priorities.[74] That is to say, the “freedom to earn” associated with the sharing economy is often understood as the freedom to set income ceilings rather than the freedom to break them, but it is nonetheless valuable to workers.

Platform workers are neither deluded nor unusual for valuing the freedom to make their own decisions regarding scheduling, work style, and earning potential—nor, for that matter, are they alone in associating this freedom with independent contractor classification. Non-white immigrant taxi workers in the Bay Area, for instance, have strongly preferred to be independent contractors rather than employees (to the point that San Francisco taxi drivers as a whole were unable to vote themselves into employee status when given the opportunity to do so by city government) because they attach symbolic and practical consequences to each classification.[75]

For these drivers, the often degrading experience of being a non-white taxi driver is somewhat mitigated by the knowledge that they do not work for anybody and by the cultural capital that this generates within their social circles.[76] More concretely, immigrant drivers worry that employee status will allow leasing officials to give free rein to their prejudices by enforcing specific dress and grooming requirements as well as by giving immigrant drivers the worst cars and schedules.[77] Drivers also (quite rightly) associate the universally despised practice of short-term or “day” leasing with employee status and worry that the problems of day leasing—such as long hours wasted in line waiting to be assigned a car, daily bribe payments to get better cars, and the generally demeaning treatment meted out by leasing officials—will only be exacerbated by a return to the classification scheme under which it was originally developed.[78]

As the worries of taxi drivers and the satisfactions of platform workers suggest, conceptualizing freedom at work as non-interference (“nobody tells me when to work, how to work, or how much I can earn”) is just that and no more: the freedom to not have another human being interfere in one’s work-related choices. Perhaps the salience of this limited vision of freedom means that it is uniquely disempowering to have a fellow person order us about.[79] This would certainly be in line with arguments that human action is uniquely effective at stopping the flow or impact of accountability—of acting as a “moral crumple zone” when essentially autonomous technologies malfunction—because it too emphasizes that our cultural and legal conceptions of responsibility are still centered on the individual agent.[80] Or, perhaps it suggests that interference is more demeaning when it is discrete and direct (like an order to report for work at 7 a.m), rather than when it is incremental, structural, or indirect (like when implicit bias in customer reviews eventually triggers deactivation from an app).[81] Regardless, the meaningfulness of this vision of freedom is real and it is reasonable, even if the underlying concept is exceptionally narrow and thus problematic. And because this understanding of freedom is explicitly defined by the presence or absence of control, it can make control-based categories powerfully meaningful for workers even when there is good reason to think those workers ultimately suffer as a result of a classification system based on control.

Even policy analysts and workers’ advocates sometimes find the idea of freedom-as-non-interference compelling, inasmuch as they sometimes use it to typologize platforms for the purposes of analyzing and responding to platform-related problems.[82] But separating “labor platforms” (like TaskRabbit and Rover) from “capital platforms” (most notably, Airbnb) is neither conceptually easy nor, if we are concerned with workers’ welfare, is it manifestly desirable. For instance, ridesharing is usually slotted into the “labor” category even though it requires a significant capital investment because ridesharing, like dog-walking or furniture assembly, involves personal services performed by the worker. But UberBLACK drivers can have commercial accounts listing multiple individuals who actually do the driving and who split earnings with the account holder;[83] conversely, many Airbnb hosts personally undertake part or all of the considerable labor involved in hosting.[84] The fact that most Uber drivers actually do the driving themselves while many Airbnb hosts outsource their maintenance work does not reflect anything intrinsic to the way the platforms work.

From a workers’ advocacy perspective, the suggestion that capital platforms are different—that they merely constitute a “side income” stream and are meaningfully less like employment than labor platforms—relies on the idea that a task is not “work” if someone has not directly forced you to undertake it at a given moment, in a given manner. Yet the same analysts and advocates who distinguish between labor and capital platforms often point out that algorithmic management techniques significantly restrict workers’ freedom (making them more like employees) even though the techniques generate few discrete, unavoidable demands and involve little direction by any human being.[85] Moreover, algorithmic management is hardly limited to a specific platform or even a specific kind of platform: Airbnb and Rover equally engage in algorithmic management when they rely on data-driven evaluation systems.[86] There may be other reasons to distinguish between “labor” and “capital” platforms, like understanding how class and race operate in the sharing economy, but understanding how to regulate work and how to safeguard workers’ rights are not self-evidently among them.[87]

This is not to say that any particular commentator wholly subscribes to a negative conception of freedom-as-non-interference—again, the central argument of this Article is that lay and legal actors do not wholly subscribe to any one way of thinking about what it means to be free at work (and neither does our work law). Rather, it simply goes to show that the idea of individual autonomy undergirding control-based analysis tends to inform analytic categories regardless of both one’s policy preferences and the role one inhabits with respect to the sharing economy.

There is also no question that the freedom described here is thin, not simply because it is contained in a few discrete and sometimes trivial types of decision-making, but also because those instances of decision-making are only free from interference if we draw a tight circle around what actually constitutes “interference.”[88] Platforms restrict workers’ choices by establishing cutoffs and penalties for various behaviors, including the rate at which workers accept client requests, the speed with which they accept them, and the rate at which they cancel accepted requests.[89] Some platforms establish fairly specific codes of conduct or limit the services a worker can offer unless she reaches an elite status.[90] And of course, Uber and Lyft seek to manipulate drivers’ personal choices regarding where and when to drive by using dynamic pricing.[91] The thinness of freedom-as-non-interference is such that the very things workers value—say, the ability to set earnings goals—are the means for platforms to shape worker behavior in ways that benefit platforms but not workers.[92]

Although scholars and policy analysts increasingly view these practices as restricting worker choice in meaningful ways, the practices are unevenly viewed as interferences in personal freedom by workers themselves and (with the equally uneven exception of ridesharing) are unrecognized as such by courts.[93] But that is precisely the point: platform control remains largely invisible because it does not follow the model of a X dictating to a Y on discrete matters at particular moments.[94] This does not mean that workers and observers feel that platform labor involves no loss of freedom—simply, as we will see, that the freedom they see being threatened is of a very different sort than the type of non-interference described above.

B. Freedom as Non-Domination

Critics of the sharing economy argue that the liberating potential of this space has been drastically oversold and that platform labor generates uncertainty, conformity, and obsequiousness—all symptoms of domination—that are incompatible with freedom at work. According to this view, it does not matter so much that Uber, Rover, and Airbnb regularly discipline workers who cancel client requests, or that customers on these platforms discipline workers who do not meet their personal expectations—it is not the actual interference in worker choice that produces domination.[95] Rather, it is that platforms and customers have the power to discipline (and thus the power to restrict choice) if and when they feel like it and in essentially unpredictable or unknowable ways.[96] As a result of this unchecked authority, workers live in a state of uncertainty to which they respond by conforming their desires to the limits of the system and by behaving with obsequiousness towards those who dominate them.[97]

Take Alex, a retired Caucasian woman who rents her family’s spare bedroom via Airbnb and is also a Lyft driver.[98] After a few years of retirement, Alex and her husband decided to try homesharing because they felt they should do more to ensure their own financial stability during their golden years and because they wanted to help their struggling son with his daughter’s college tuition. Once they were more or less settled with their Airbnb listing, Alex decided to give ridesharing a try as well, mostly out of curiosity. Her husband does the cleaning and maintenance for their rental, while Alex manages their online profile and is primarily responsible for interacting with their clients.[99]

Alex has always considered herself a friendly, easy-going person so she was somewhat surprised to discover how invasive it initially felt to have strangers in her car and her home. She understood how some drivers could say that inviting strangers into their cars and making small talk for money made them feel like “pimps,” and although she didn’t feel quite as strongly, she was very aware of the fact that she had to provide a “service” while in her own home and her own car.[100]

Eventually, though, she started focusing on how to be a better host and driver. She would look carefully for mannerisms and word choices that indicated her clients’ moods, and experiment with different behaviors, questions, and phrasings to see what reactions she got.[101] As she got better at doing all of this, and as she started thinking of her work as providing something that people really needed, she started to enjoy herself more. One of her favorite tricks now is to ask for restaurant recommendations from her rideshare passengers but give restaurant recommendations to her homeshare guests—she doesn’t need to ask any more than her guests (who could always check Yelp) need to be told, but in each context her tactics seem to make clients feel good.

Still, Alex remains slightly worried about some aspects of her platform work. For instance, she is especially sensitive to the fact that guests might complain about food odors in her home since her husband is Indian and cooks often.[102] One of her very first guests did in fact note the smell in his review. It wasn’t a major criticism—he made a few other suggestions as well—but Alex is convinced that the smell was the reason he gave her a four–star rating. More experienced hosts whom she encountered on an online chat forum reassured her by saying that four stars was fine for an early review and even gave her tips on how to moderate food odors. Still, Alex is always a bit anxious when a guest walks in for the first time—and also when they walk out for the last time at the end of their stay.

She’s also a little concerned that one of her guests will have a problem with the fact that her family is interracial. She hasn’t faced any explicit instances of discrimination yet, but she has heard stories of frosty guests and inexplicably low reviews and is wary. Still, she knows that there is little she can do since Airbnb’s anti-discrimination policy—which she has read in painstaking detail—is more geared towards protecting guests than protecting hosts.[103] So she does her best to preempt the situation by being extra friendly and accommodating.

Food odors and prejudices against interracial couples are obviously not a problem in her work as a driver but Alex is worried that, now that she’s finally got the hang of it, Uber is going to switch to driverless cars and all the other rideshare companies, including Lyft, will follow suit. She’s actually really grown to like her driving: doctors rushing to work in the morning and businesspersons late for meetings are always so grateful that she feels like a hero, and thanks to Lyft’s tip feature they can and do express their gratitude.[104] There was a week back in December when the money was so good (and their granddaughter’s spring tuition was almost due) that she couldn’t stop driving and started to get worn down from the lack of sleep.[105]

Alex’s story does not read as one of terrible sadness or subordination to either her platforms or her customers, and it is not meant to. Yet the absence of freedom is a terrible thing—if Alex is not considerably unhappy and does not feel constantly thwarted in her work by being made to do things or obey orders that impinge upon her autonomy, why would we consider her unfree?[106]

In a word: uncertainty. Workers and observers are noting with heightened frequency and levels of eloquence that the experience of providing services in the sharing economy is marked by an overwhelming level of uncertainty—uncertainty regarding the requirements for gaining or maintaining access to the app, uncertainty regarding client expectations, uncertainty regarding situations where the two clash, and even uncertainty regarding how long the entire system will exist in its current form.

None of these uncertainties need actually produce bad outcomes for workers. The unknown platform requirements might be effortlessly met, clients might not have idiosyncratic expectations, the two sets of demands might never come into conflict, and (notwithstanding Alex’s fear of driverless cars) major changes might always hover just beyond the horizon.[107] Indeed, regulatory and technological hurdles make the worry about rideshare drivers training their own replacements less compelling than is sometimes suggested.[108] Nevertheless, it remains that the only thing that workers like Alex can be sure of is the power of the platform and of the client to constrain their options in any circumstance. It is an authority that is always there, waiting to be exercised, and the waiting creates uncertainty.[109]

To be sure there is uncertainty in all things and all jobs, and it is equally true that American work law has a peculiarly high tolerance for uncertainty as signaled by its embrace of at-will employment.[110] The problem is not so much that workers lack a script laying forth all the future twists and turns of their gigs, jobs, or working lives, but that the script they do have, bare bones as it is, is also at any time susceptible to alterations that are not of their choosing and may be intentionally hidden from them.

Uncertainty of this type constrains autonomy without ever rising to the level of direct interference because it makes it impossible for workers to exercise meaningful choice. When an Uber driver accepts every ride request she receives but is told she did not meet the acceptance rate requirement to qualify for a guaranteed hourly wage, she has no information with which to counter Uber’s assertion and, consequently, no way to judge her best future course of behavior.[111] Her safest bet is to continue accepting all possible ride requests in the hope that Uber’s assessment and her own assessment of her acceptance rate will eventually match up. Similarly, when a Fiverr worker does not know what will catapult her into the highest category of elite workers (“Top Rated Seller”) she has no way of choosing among an array of possible behaviors or business decisions in order to access the very real benefits that come with Top Rated Seller classification.[112]

Inasmuch as it forces workers to operate blindly, uncertainty also leads workers to literally and figuratively embody the domination they experience.[113] One paradigmatic way to respond to the unchecked authority of another is to curry favor with the authority figure so that she will minimize her interference in your choices.[114] Obsequiousness is neither necessarily painful nor gaudy: most of us like to please, and—as many rideshare drivers attest—sometimes silence itself is pleasing enough. What obsequiousness (even the silent variety) expresses, however, is the powerlessness of the person who embodies it. “Several [Uber] drivers said the best way to behave is like a servant,” noted one journalist, before going on to quote a driver in Sacramento who characterized her own role by saying that “‘[t]he servant anticipates needs, does them effortlessly, speaks when spoken to, and you don’t even notice they’re there.’”[115]

Though it may seem otherwise, obsequiousness is about more than exercising “natural” tact. Rather, it is a way of recognizing the particular social game being played and of obeying its rules.[116] Smiling to make others happy, curating conversations to boost others’ egos—the emotional labor performed by platform workers concretizes the power of clients and algorithms through the worker’s own physical gestures and speech patterns.[117] For instance, after a Lyft driver noted a sudden decrease of 0.1 in his rating, he started attempting to establish a conversational rapport with passengers “very quickly” because “[t]hat’s what they”—meaning both passengers and Lyft—“want. Accommodate and connect.”[118] Emotional labor is nothing new, of course, and even within the sharing economy, it is hardly limited to either rideshare drivers or verbal interactions.[119] But the sheer ubiquity of emotional labor makes it no less telling a sign of dependence on another’s will.

Because emotional labor and obsequiousness are unsuccessful where they are obviously insincere, workers must also at least partly conform their preferences to the constraints, actual or potential, that are placed upon them.[120] This too is neither necessarily painful nor outlandish. If one’s options are good ratings that produce a host of benefits—more income, elite statuses, perhaps an hourly wage guarantee—and bad ratings that produce their inverse—and perhaps deactivation—then it is natural to honestly prefer the former, and indeed, it is difficult to do otherwise.[121] Account after account of platform work emphasizes how seriously workers take such markers of success, not only because they translate into more desirable outcomes, but because they validate the decision to commit to platform labor itself. “I’ve got currently twelve excellent-service and nine great-conversation badges,” boasted one Uber driver (who is nonetheless looking for another job).[122] “It tells me where I’m at.”[123] But in the neo-republican account, while happiness—or at least, reduced frustration—may lie in learning to want what you have rather than having what you want, freedom emphatically does not.[124]

This is not to say that platform workers are automatons who feel what is wanted and want what is given (even though it can sometimes seem that way).[125] Critique and resistance abound, whether this consists of venting on chat forums, contesting client accounts of interactions, strategizing within the bounds of the system—as when workers try to game the algorithms that determine search results or that allot front page placement on their platforms’ websites—and it may even involve operating outside the bounds of the system itself—as when workers go “off app.”[126] But these acts of agency occur within a particular framework and using a particular set of idioms and intuitions; they are part and parcel of the system they ostensibly subvert. Consequently, while they might demonstrate dissatisfaction with the rules of the game, they do not fundamentally break with the game itself.[127]

When critics decry the imbalance of power between clients and platforms on the one hand and workers on the other, they are appealing to an understanding of freedom of non-domination rather than as non-interference. If only interference was at issue, the ability to ingratiate oneself with clients (and also with algorithms) and to thereby pursue one’s livelihood relatively unmolested would draw analogies to liberation, not servility. Likewise, if the sum total of freedom was the ability to avoid frustration, it would be enough to constantly recalibrate one’s preferences in light of new constraints and interferences. That neither the one nor the other is the case suggests that workers and observers also subscribe to a vision of freedom that the sharing economy does not enable. It is this failure that drives talk of regulatory dysfunction or breakdown with respect to platform work, and that underlies dissatisfaction with control-based classification even outside the platform context.

C. Conflicting, Not Concentric Freedoms

Taken together, Sam and Alex reflect worker experiences across a range of platforms, but, more importantly, they embody two distinct ways of experiencing (or not experiencing) freedom at work. Sam’s ability to make choices about when he works, how he works, and how much he earns, as well as the absence of a supervisor monitoring his performance, all reasonably contribute to a sense that he is free because someone else is not directly forcing him to engage in or refrain from particular actions. Conversely, Alex’s worries about dealing with prejudicial or idiosyncratic clients, her reservations about having to behave obsequiously in her own car and home, and even her gradual enjoyment of the subservient role she had initially disliked, all signal her loss of freedom–as–non-domination. One is not simply broader than the other; rather, freedom–as–non-interference and freedom–as–non-domination are conflicting rather than concentric or additive concepts.

Non-interference is grounded in discrete, direct exercises of authority (“Pick up Joe Smith on Main Street, now!”). This is the kind of instruction someone like Sam is glad to be rid of, and labor and employment scholars rightly associate it with industrial and factory-based forms of labor that are a diminishing component of our work landscape. But the sort of freedom that someone like Alex is missing out on, freedom-as-non-domination, would not be captured by a broader “functional” understanding of authority because it is fundamentally distinct.

For example, even though Alex may not be given a specific order to “pick up Joe Smith,” she might know that if she does not pick up a large enough percentage of Joe, Jack, and John, she will be terminated from the app. The trouble is that Alex is not quite sure what that magic percentage is or whether she and Lyft will agree on when she’s met it, so Alex is not really free to reject any of those passengers. A broader definition of control would not solve her problem. Likewise, the constraints on her freedom do not arise from whether or not Lyft actually directs her to “pick up Joe on Main Street, now.” What would make Alex feel freer in the non-domination sense if she knew beforehand that picking up Joe and Jack would ensure that she met her daily acceptance rate.

This means that the difference between freedom-as–non-interference and freedom-as-non-domination is one of kind rather than degree. More importantly, it means that regulators cannot satisfy both conceptions of freedom by simply expanding the circle of “employees” or by understanding “control” more expansively. Control-based analysis is inherently tied to the idea that a worker’s freedom is impinged upon when an employer dictates the “how, when, and where” of her work—that is to say, the “means and manner” of performance. freedom-as-non-domination need have nothing to do with this sort of means and manner analysis. And because workers are not alone in valuing both types of freedom, our labor and employment statutes and case law reflect traces of freedom-as-non-interference as well as freedom-as-non-domination.

III. Freedom(s) In, and Through, Work Law

This Part explores how the ethnography discussed above illuminates a fundamental tension in labor and employment law itself. It is one thing to say that platform workers and observers are genuinely attached to different visions of freedom at work, another thing to suggest that this dynamic can also be found in our work law, and yet a third thing to argue that the tension between these two conceptualizations of freedom explains our fixation—and our dissatisfaction—with control-based analysis. So far, I have only made the first of these claims, but in what follows I will make the second and third. These arguments necessarily take us from the fine-grained, ethnographic study of platform labor to the historical and doctrinal analysis of labor and employment law writ large.

A. Non-Interference and Non-Domination in Work Law

Freedom–as–non-interference is undoubtedly more prominent within labor and employment law (and arguably beyond it) than freedom-as-non-domination. Few things convey the centrality of this way of thinking as well as the overall primacy of the common law control test, but we can pick out other, more specific instances where an understanding of freedom at work as non-interference shines through with especial clarity. Take the practice of upfront contractual specifications (“UCS”), in which detailed descriptions of the way work is to be done are included in independent contractor agreements, but are presented by companies and often understood by courts as evidence of the end product or service that is contracted for.[128] When courts read UCS clauses as detailing the “ends” rather than the “means” of performance, they understand them to support independent contractor classification because, in part, UCS obviates the need for human monitoring and scheduling.[129] In other words, some courts—like some platform workers—conceptualize freedom at work to be the absence of direct, interpersonal authority rather than as the absence of the power to exert such authority indirectly and without restriction.

For example, FedEx has successfully argued in several courts that the terms of its lengthy and non-negotiable Operating Agreement did not transform its drivers into employees because, among other things, the agreement “suggested a limited need or interest in real-time supervision.”[130] To be sure, FedEx’s position has been widely criticized and the judicial tide may have started to turn against the company on this issue,[131] but UCS is hardly limited to one company or even one industry.[132] Moreover, once we grant the paramount importance of identifying control over the means of performance, the frequently counterintuitive results in UCS cases become an intractable—because they are unavoidable—problem.[133]

We can see the importance of control and freedom-as-non-interference outside the realm of worker classification, too. Consider the practice of having workers contractually waive statutory protections like the ability to litigate rather than arbitrate future claims, or the ability to mount claims based on current or prior employment decisions in any forum.[134] The logic in doing so is that when waivers are signed under conditions that are not explicitly coercive, they represent choices made free of interference.[135] They may even be said to advance freedom, inasmuch as they empower workers to assess and realize the value of certain statutory protections by their own lights.

But of course, waivers are signed in situations where choice is severely constrained by asymmetrical knowledge and by asymmetrical power over goods like jobs and severance packages.[136] (There is also the very real concern that waivers defeat public interests even when they truly advance private ones, but “deregulat[ion] by contract” is an entirely different sort of objection to statutory waivers.[137]) Even where there is no interference of the stranger-in-a-back-alley variety, it requires single-minded focus on the bare act of assent to be able to say that the waiver itself expresses worker autonomy.[138] That assent is important, to be sure, and it meaningfully differentiates contractual waivers from agreements made under conditions of actual intimidation. But for our purposes, contractual waivers are interesting for their signaling value more than for their substantive effect: the fact that courts almost universally enforce waivers suggests that courts dealing with employment contracts—like lay actors dealing with consumer contracts—find a strictly non-interference model of free choice to be compelling in some circumstances, however thin that freedom might appear to critics.[139]

While work law is undoubtedly flush with examples of freedom-as-non-interference, it is also relatively easy to spot instances where individuals have tried—with varying success—to push the law toward a conception of freedom-as-non-domination.[140] Perhaps most strikingly, labor republicans of post-Civil War America directly drew on and refined the classical republican understanding of freedom as part of their efforts to advertise the “structural and personal domination to which a modern wage-laborer was subject.”[141] The open-ended authority of the labor contract, according to this new, more radical interpretation, merely replaced the unfreedom of slavery with the unfreedom of wage slavery.[142]

Nevertheless, republicanism petered out as the labor struggles of the late nineteenth–century segued into the Lochner era and later on as New Deal legislation sustained legislative and judicial onslaughts that revived the common law test and its control-based analysis.[143] The star surviving example of this is the FLSA’s definition of an employee as anyone who an employer “suffer[s] or permit[s] to work,” as well as its accompanying, judicially-created test, that purports to measure the “economic realities” of a work relationship rather than the quantum of control it involves.[144] The FLSA’s emphasis on knowledge and power along with the economic realities test’s complementary emphasis on dependence make the overarching—and not always actually exercised—authority of the employer the basis of worker classification.[145] As Section I.B noted, both the Act and the test are open to numerous criticisms, not least of which is that their vagueness produces judicial analysis suspiciously similar to what happens under the common law test. But it remains that the FLSA and the economic realities test represent concerted efforts to move away from a system that compensates only for the loss of freedom represented by direct interferences in a worker’s will.[146]

A similar conceptual move underlies the 2015 reassessment of the standard for determining “joint employer” relationships as well as the NLRB General Counsel’s investigation regarding McDonald’s liability for the working conditions of its franchisees’ employees. Together, Browning-Ferris [147] and the consolidated McDonald’s inquiry created uproar in the franchising world because they discarded an analytic framework that based employee classification on direct interference in worker autonomy as the basis for labor and employment protections.[148] Browning-Ferris announced that the NLRB (“the Board”) would henceforth only require a potential joint-employer “possess the authority to control employees’ terms and conditions of employment” rather than actually exercise such authority.[149] Likewise, it announced that the Board would acknowledge forms of control that were not directly and immediately exercised by the potential employer; instead, control exercised via an intermediary would count as well.[150] The McDonald’s investigation put this approach into practice (although it is worth noting that the General Counsel had initiated its inquiry well before a decision was issued in Browning-Ferris).[151]

In both instances, the Board abandoned a narrower understanding of freedom where only direct commands framed as commands are held to impinge a worker’s autonomy, and instead adopted a broader understanding of freedom in which the ability to elicit desired behavior warrants protection even if it is not exercised via direct command or remains unexercised altogether. The shift has been questionably successful: even though the Board confirmed its approach in subsequent cases,[152] Browning-Ferris was eventually overturned by Hy-Brand Industrial Contractors (which was itself later vacated).[153] But even though the new joint employer standard has been neither particularly impactful nor long lasting—in fact, especially because it has been neither impactful nor long lasting—it speaks to both the gravitational pull of control-based analysis and the dissatisfaction it occasionally produces.

B. Tension, Confusion, or Failure?

Even if distinct visions of freedom-as-non-interference and as non-domination exist inside and outside work law, how can we be sure that the tension between them is responsible for critics’ seeming desire—and inability—to move beyond control-based analysis? Perhaps legislators are just responding to political pressure when they enact laws that promote control and non-interference in spite of its poor fit with the realities of work. Or, perhaps judicial actors are simply doing the best they can with vague laws and complicated facts, but their efforts also fit poorly with the realities of work. Bad statutes or bad case law—with “bad” meaning sinister, ill-conceived, archaic, or subject to internal contradiction (among other things)—are, overwhelmingly, the way labor and employment scholars have explained the continuing fixation and dissatisfaction with control-based analysis among themselves and decisionmakers.[154] Both of these explanations are undoubtedly part of the answer, but they are not, individually or even together, the whole answer. What’s more, considered by themselves, they paint a crude and starkly ungenerous view of all parties involved.

Take the idea that control-based analysis persists because labor and employment statutes overwhelmingly reflect the interests of elite actors (the “legislative failure” argument).[155] Political interests and constraints can certainly explain some of the stranger features of our classification system, including, for example, the exclusion of domestic and agricultural workers from the NLRA or that of tipped servers and farm workers from the FLSA.[156] Politics can even explain some of the back-and-forth between differing approaches to freedom at work, like the Taft-Hartley Act’s restrictions of the meaning of “employee” under the NLRA and Hearst.[157]

But “legislative failure,” though it offers some insights about our love‑hate relationship with control-based analysis, cannot explain that relationship on its own. Suggesting otherwise invites a kind of legal nihilism because it requires viewing law as nothing but a tabula rasa waiting to be written on by select actors. It also invites a kind of legal exceptionalism because it would mean that law has a singular power to change hearts as well as actions even among those whose interests it undermines. In other words, this explanation requires us to think of law as both acultural and as wholly constitutive of cultural traditions, and it calls on us to view any values discernible in law as little more than “glosses on property relations.”[158] To write this down is to demonstrate its impossibility. Beyond all this, “legislative failure” sadly underestimates the importance of courts in constructing, defending, and reformulating the building blocks of labor and employment law.[159]

The second argument (“implementation confusion”) corrects for that last shortcoming by putting the blame squarely on the way courts handle labor and employment cases. In one understandably popular version of this explanation, judges both perpetuate control-based analysis and occasionally undermine it because the relevant legal precedent is confusing and statutory guidance is in woefully short supply.[160] Another less frequently articulated version of this argument suggests that courts have repeatedly embraced a restricted vision of freedom-as-non-interference because it better aligns with employers’ interests and because, consciously or not, judges are predisposed to sympathize with employers.[161] When courts recognize thicker understandings of freedom at work—as in Hearst, for instance, or in the FedEx litigation, Browning-Ferris,[162] or Cotter [163]—it is because the realities of work (and the interests of workers) have managed to assert themselves despite these limitations.

“Implementation confusion” cannot offer an exhaustive solution to the puzzle of control-based analysis any more than “legislative failure” because it repeats the latter’s errors, albeit in more complex fashion. To the idea that the stickiness of control originates in legal infrastructure, “implementation confusion” adds a new type of law (adjudicatory outcomes, whether by courts or by agencies) and a new type of actor (courts, rather than just legislatures). This adds nuance to the legal nihilism and exceptionalism from earlier, but it does not fundamentally challenge the premise that law may construct social norms without also being constructed by them. Likewise, to the argument that the faultiness of control-based analysis stems from a class-inflected divide between law and reality, “implementation confusion” adds subtlety via implicit bias—“judges naturally think like employers”—rather than explicit preference. But of course, this merely casts lures to the legal realists inside many of us without doing justice to the sort of measured, multivariate analysis of judicial behavior pursued by many New Legal Realists themselves.[164]

Perhaps the most significant problem with these two explanations is that they do not really notice or explain the fact that the tension between non-interference and non-domination exists outside the law itself, in the vast realm of “society.” As Parts I and II showed, workers—and even some commentators—who might be expected to find a thicker vision of freedom at work uniquely compelling (and who often do find it compelling) also often think of freedom-as-non-interference. This matters. Since critics of control-based analysis fail to see that its faultiness and stickiness exist outside the law as well as within it, they reasonably view the tension in work law as emanating from a disjuncture between law and society. Once we see that this tension exists both inside and outside the law, it becomes impossible to think that a disjuncture between law and society—whether stemming from statutes and legislators or case law and judges—is all that lies behind it. Something else must also be at issue, something that does not reduce law to “glosses on property relations,” lawmakers to puppets (or puppeteers), or lay actors to dupes. The missing piece of the puzzle is that we—workers, scholars, and decision makers alike—have genuine commitments, visible in law and in everyday practice, to two different conceptions of freedom at work.

Conclusion

The tension between non-interference and non-domination that I have outlined here explains decisions like Cotter v. Lyft far better than any transformations in technology or employment practices. Precisely because it was thorough and measured, Judge Chhabria’s analysis exemplifies how work law uses a single concept (“control”) to try to capture a complex empirical phenomenon (“freedom”) as well as how the attempt often produces stalemates and confusion.

For instance, several of the factors Judge Chhabria considered link the concept of control to an understanding of freedom–as–non-interference: the “great flexibility” drivers enjoy regarding “when and how often to work;”[165] their ability to select “parts of San Francisco in which they accepted ride requests;”[166] and the “minimal contact with Lyft management” while working as drivers.[167] All of these factors interpret control to mean discrete or direct restraints on driver autonomy; because the restraints did not exist, control was also found to not exist.

Conversely, other factors considered by Judge Chhabria link control to an understanding of freedom–as–non-domination: the “right to penalize” that Lyft reserves to itself (whether or not that right is actually exercised);[168] the ambiguous standards on which such penalties can be based;[169] and, above all else, the power that comes from the ability to terminate at will.[170] All of these factors interpret control to mean a potential, and potentially unrestrained, ability to limit driver autonomy; because Lyft did indeed possess such an ability, it was found to enjoy control over its drivers.

Cotter makes clear that work law cares about how people experience freedom, that there are distinct ways to experience freedom, and that decisionmakers cannot effectively subsume these distinct visions under a single concept like control. When they do so, as Judge Chhabria was forced to do based on prevailing California law, they are left with little but a morass of crossed signals and repeat errors. So where do we go from here?

First, we acknowledge that freedom-as-non-interference is a relatively thin concept with a remarkably thick and rich tradition in the United States. This is true both among lay and legal actors, as well as in “law on the books” and “law in society.” It is simply not productive to dismiss a Lyft driver’s valuation of, say, scheduling flexibility on the grounds that it seems like a shallow sort of freedom.

Second, we recognize that middle-of-the-road attempts to fix classification doctrine by introducing new tests or new factors do not succeed. This is not because non-interference and non-domination are mutually exclusive in the abstract, but because, in practice, it is difficult to consistently identify losses of freedom when freedom means two distinct things. Decades of classification case law and scholarship attest to this fact. The failure of median approaches suggests that our options for improving classification doctrine lie at the extremes: either we enact piecemeal regulatory reforms that address specific aspects of work relationships but leave core conceptual issues as they are,[171] or we undertake the profoundly challenging task of regulating work relationships on the basis of something other than the amount of control and freedom they permit.[172] Piecemeal regulations need not be inconsequential, and conversely, systemic change may not be better or feasible, but either approach would depart from previous reform efforts by respecting and building on our dual conception of what it means to have freedom at work.

[*] *.. Sharswood Fellow, University of Pennsylvania Law School; A.B. 2006, Princeton; Ph.D. 2013, University of Chicago; J.D. 2016, University of Chicago. My thanks to Daniel Abebe, Brad Areheart, Shyam Balganesh, Stephanos Bibas, Richard Carlson, Miriam Cherry, Ryan Doerfler, Veena Dubal, Eric Feldman, Lee Fennell, Andrea Freeman, Camille Gear Rich, Michael Green, Dave Hoffman, Genevieve Lakier, Sophia Lee, Brian Leiter, Serena Mayeri, Sandy Mayson, César Rosado Marzán, Shayak Sarkar, Paul Secunda, Beth Simmons, Megan Stevenson, Lior Strahilevitz, Julia Tomasetti, Laura Weinrib, Tess Wilkinson-Ryan, Noah Zatz, Adnan Zulfiqar, and, as always, John Felipe Acevedo, for comments on various aspects or versions of this paper. Commentators at the 2016 and 2017 Law & Society Association meetings, 2017 AALS meeting, Third Labor Law Research Network Conference, Fifteenth Annual Marco Biagi Conference, Michigan Law Young Scholars Conference, 2017 Southeastern Association of Law Schools Conference, the University of Pennsylvania Law School, and the University of Chicago Law School also provided valuable feedback. This research was funded in part by the generous support of Dean Ted Ruger and the University of Pennsylvania Law School.

[1]. See generally Cotter v. Lyft, Inc., 60 F. Supp. 3d 1067 (N.D. Cal. 2015). Cotter has been cited in at least twelve decisions and as many as thirty-seven law review articles in the three years following the decision. See, e.g., Bowerman v. Field Asset Servs., Inc, 242 F. Supp. 3d 910, 928 (N.D. Cal. 2017); Bekele v. Lyft, Inc., 199 F. Supp. 3d 284, 303 (D. Mass. 2016); Ryan Calo & Alex Rosenblat, The Taking Economy: Uber, Information & Power, 117 Colum. L. Rev. 1623, 1626 n.14 (2017).

[2]. Cotter, 60 F. Supp. 3d at 1069.

[3]. See id. (“We generally understand an employee to be someone who works under the direction of a supervisor, for an extended or indefinite period of time, with fairly regular hours, receiving most or all his income from that one employer . . . .”). See also Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989) (listing various factors that courts consider in making determinations of employee status); United States v. Silk, 331 U.S. 704, 716 (1947) (same); Restatement (Second) of Agency § 220(2) (Am. Law Inst. 1958) (same); Richard R. Carlson, Why the Law Still Can’t Tell an Employee When It Sees One and How It Ought to Stop Trying, 22 Berkeley J. Emp. & Lab. L. 295, 310 (2001) (same).

[4]. Cotter, 60 F. Supp. 3d at 1081.

[5]. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (citing Reid, 490 U.S. at 740). While there is no definitive articulation of the control test, I will refer to it in the singular for ease of reading and because all versions of the test emphasize the importance of employer control over the “manner and means” of performance. Accord Carlson, supra note 3, at 299.

[6]. Cotter, 60 F. Supp. 3d at 1081. See also Senator Mark R. Warner, The American Dream Is Fading for Millions of Freelancers. Portable Benefits Could Save It, Senate.gov (July 5, 2017), https://www.warner.senate.gov/public/index.cfm/2017/7/the-american-dream-is-fading-for-millions-of-freelancers-portable-benefits-could-save-it (calling the United States’ approach of linking social safety benefits to employers a “20th-century approach” that is “failing workers in the 21st-century economy”).

[7]. See Deepa Das Acevedo, Invisible Bosses for Invisible Workers, or Why the Sharing Economy Is Actually Minimally Disruptive, 2017 U. Chi. Legal F. 35, 50, 58 (discussing specific work practices that allow franchisors like McDonald’s to exercise control over their franchisees’ direct employees as well as some companies like FedEx to exercise control over their independent contractors). Compare Alexander v. FedEx Ground Package Sys., 765 F.3d 981, 997 (9th Cir. 2014) (finding FedEx drivers are employees), and Ochoa v. McDonald’s Corp., 133 F. Supp. 3d 1228, 1241 (N.D. Cal. 2015) (denying summary judgment for defendant McDonald’s on grounds that McDonald’s may be liable for labor code violations involving its franchisees’ employees under a theory of ostensible agency), with FedEx Home Delivery v. NLRB, 849 F.3d 1123, 1124 (D.C. Cir. 2017) (finding FedEx drivers are independent contractors), and Salazar v. McDonald’s Corp., No. 14-cv-02096-RS, 2016 U.S. Dist. LEXIS 108764, at *49–50 (N.D. Cal. Aug. 16, 2016) (finding that McDonald’s is not a joint employer of its franchisees’ employees).

[8]. See infra notes 14, 15, 30, 31, 47 and accompanying text (discussing scholarship and jurisprudence critical of the existing classification regime and control based analysis). See also Bruce Goldstein et al., Enforcing Fair Labor Standards in the Modern American Sweatshop: Rediscovering the Statutory Definition of Employment, 46 UCLA L. Rev. 983, 1106 (1999) (arguing that in adopting the much broader “suffer or permit” standard of employee status instead of the control test, “Congress’s purpose was precisely to expand coverage under the [Fair Labor Standards Act] far beyond the common law”).

[9]. Throughout this paper I will rely on Isaiah Berlin’s canonical definitions of positive and negative freedom and Philip Pettit’s interpretation of freedom as non-domination. Isaiah Berlin, Two Concepts of Liberty 7–8, 16 (1958); Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy 1–18 (2012); Philip Pettit, Republicanism: A Theory of Freedom and Government 19–27 (1997). See also Alex Gourevitch, From Slavery to the Cooperative Commonwealth: Labor and Republican Liberty in the Nineteenth Century 7–17 (2015); Gerald M. Stevens, The Test of the Employment Relation, 38 Mich. L. Rev. 188, 197–98 (1939) (arguing that American courts have “turned for guidance to a more certain and indisputable principle” in which “control must have meant . . . actual interference and superintendence”).

[10]. Non-domination is most concerned with the presence or absence of boundaries on external interferences rather than with the interferences themselves. For illustrations using the sharing economy, see infra Section II.C. See also Pettit, On the People’s Terms, supra note 9, at 1–18.

[11]. Deepa Das Acevedo, Temples, Courts, and Dynamic Equilibrium in the Indian Constitution, 64 Am. J. Comp. L. 555, 560 (2016).

[12]. Kaushik Sunder Rajan, Anthropological Fieldwork Methods 1 (2015) (unpublished syllabus) (emphasis in original) (on file with author). Ethnography is often described as a research method based on participant-observation, and this description is not wrong. But Kaushik Sunder Rajan offers a far more nuanced take on the ethnographic method and its value in his syllabus for a graduate-level methods class at the University of Chicago. “What makes good ethnography work . . . ,” Sunder Rajan writes, “is the fact that the ethnographer is capable of attending to things that her interlocutors might attend to differently (ignore, naturalize, fetishize, valorize, take for granted, etc.).” Id. Consequently, “the fundamental problem of fieldwork involves the cultivation of attentiveness.” Id.

[13]. See Coppage v. Kansas, 236 U.S. 1, 17 (1915), noted in Alan Story, Employer Speech, Union Representation Elections, and the First Amendment, 16 Berkeley J. Emp. & Lab. L. 356, 406–07 n.264 (1995); Bower v. Peate, 1 Q.B.D. 321 (1876), noted in O.W. Holmes, Agency, 4 Harv. L. Rev. 345, 347 n.3 (1891) (discussing the proposition that a master/servant relationship is no different than other agency relationships inasmuch as the servant’s actions are attributable to the master).

[14]. See, e.g., Brishen Rogers, Am. Constitution Soc’y, Redefining Employment for the Modern Economy 3 (2016); Franklin G. Snyder, The Pernicious Effect of Employment Relationships on the Law of Contracts, 10 Tex. Wesleyan L. Rev. 33, 36 (2003); Roscoe T. Steffen, Independent Contractor and the Good Life, 2 U. Chi. L. Rev. 501, 507 (1935); Noah D. Zatz, Beyond Misclassification: Tackling the Independent Contractor Problem Without Redefining Employment, 26 ABA J. Lab. & Emp. L. 279, 282 (2011).

[15]. V.B. Dubal, Wage Slave or Entrepreneur?: Contesting the Dualism of Legal Worker Identities, 105 Calif. L. Rev. 65, 93 (2017); Julia Tomasetti, The Contracting/Producing Ambiguity and the Collapse of the Means/Ends Distinction in Employment, 66 S.C. L. Rev. 315, 356 (2014); Nancy E. Dowd, The Test of Employee Status: Economic Realities and Title VII, 26 Wm. & Mary L. Rev. 75, 86 (1984).

[16]. On the centrality of “freedom” in American work law see Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic, at xv (1993) (describing various areas of nineteenth century law as “tending during the period under study to move toward a representation of working life in voluntaristic terms . . . [an] empowering definition of individual freedom”) and Marion Crain, Work, Free Will and Law, 24 Employ. Resp. & Rts. J. 279, 280 (2012) (discussing competing meanings of “work” in the United States but stating that “[t]he dominant image of work in American law is as an exercise of free will”).

[17]. See, e.g., Boswell v. Laird, 8 Cal. 469, 489 (1857) (holding that “[s]omething more than the mere right of selection, on the part of the principal, is essential” to a master and servant relationship). Boswell added that “[t]he relation between the parties was that of independent contractors” because the co-defendants “were engaged in an independent employment in the construction of a work which was entrusted entirely to their skill.” Id at 490, 494. For discussions of the development of “employee” as a category of free labor during the nineteenth century, see generally Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (1991); Robert J. Steinfeld, The Invention of Free Labor: The Employment Relation in English & American Law and Culture, 1350–1870 (1991); Tomlins, supra note 16; Christopher L. Tomlins, Law and Power in the Employment Relationship, in Labor Law in America 71 (Christopher L. Tomlins & Andrew J. King, eds., 1992); John Fabian Witt, Rethinking the Nineteenth-Century Employment Contract, Again, 18 Law & Hist. Rev. 627 (2000).

[18]. Gasal v. CHS Inc., 798 F. Supp. 2d 1007, 1013 (D.N.D. 2011) (“The rationale for the doctrine of respondeat superior is based on the employer’s right to control the employee’s conduct.”).

[19]. Perhaps the best indication that the control test’s persistence is itself an object of puzzlement and anxiety for labor and employment scholars is the frequency with which they refer to its inadequacy, complexity, unfairness, and attempted replacement. See, e.g., Guy Davidov, The Reports of My Death are Greatly Exaggerated: ‘Employee’ as a Viable (Though Overly-Used) Legal Concept, in Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work 133 (Guy Davidov & Brian Langille eds., 2006); Marc Linder, Dependent and Independent Contractors in Recent U.S. Labor Law: An Ambiguous Dichotomy Rooted in Simulated Statutory Purposelessness, 21 Comp. Lab. L. & Pol’y J. 187, 190 (1999); Stevens, supra note 9, at 203; Tomasetti, supra note 15, at 317–18.

[20]. See infra notes 22–27 and accompanying text.

[21]. Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2–3 (2012). Note that the Civil Rights Act of 1866 does not limit its protection against racial discrimination in the formation of contracts (including employment contracts) to “employees.” 42 U.S.C. § 1981(a) (2012).

[22]. Family and Medical Leave Act of 1993, 29 U.S.C. § 2611(4) (2012). Note that the FMLA adopts the FLSA’s “suffer or permit” definition of “employ.” Fair Labor Standards Act of 1938, 29 USC § 201, § 203(g) (2012).

[23]. Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2012).

[24]. 29 USC § 201, §§ 203(d)–(e) (2012) (defining “employees” and “employers” to whom the Act applies); id. § 206 (establishing minimum wage provisions for employees); Portal to Portal Act of 1947, 29 U.S.C. §§ 251–262 (2012).

[25]. Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1002 (2012) (stating that ERISA only applies to “employees”). Note that ERISA does not require employers to offer any kind of health or retirement benefit plan at all—“it merely regulates retirement promises that are made.” Paul M. Secunda, The Behavioral Economic Case for Paternalistic Workplace Retirement Plans, 91 Ind. L.J. 505, 540 (2016). This is why “[t]he aggregate national retirement deficit number is currently estimated to be $4.13 trillion for all U.S. households where the head of household is between 25 and 64.” Id. at 507–08. Employer sponsored health and welfare plans were similarly voluntaristic; however, this began to change as a result of the “employer mandate” contained within the Patient Protection and Affordable Care Act, 42 U.S.C. §18001 (2012).

[26]. Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–52 (2012).

[27]. National Labor Relations Act of 1935, 29 U.S.C. § 157 (2012).

[28]. Although the Affordable Care Act did not entirely detach health insurance savings from work relationships, it created a system of “exchanges” on which individuals can purchase health insurance plans that are not contingent on employer sponsorship. King v. Burwell, 135 S. Ct. 2480, 2487 (2015) (“[T]he Act requires the creation of an “Exchange” in each State where people can shop for insurance, usually online.”) (citing 42 U.S.C. § 18031(b)(1)).

[29]. See Alain Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe 26–57 (2001) (not rejecting the logic of tying safeguards to work even though one of its central conclusions was that the “employment relationship in its existing form has reached its limits”), noted in David Marsden, Introduction: Can the Right Employment Institutions Create Jobs?, in Labour Law and Social Insurance in the New Economy: A Debate on the Supiot Report 1, 3, 9 (David Marsden & Hugh Stephenson eds., 2001).

[30]. Catherine K. Ruckelshaus, Labor’s Wage War, 35 Fordham Urb. L. J. 373, 378–83 (2008) (discussing the prevalence, costs to workers, and advantages to employers of misclassifying employees as independent contractors).

[31]. See, e.g., NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968); NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 120–22 (1944), overruled in part by Nationwide Mut. Ins. Co., v. Darden, 503 U.S. 318 (1992); FedEx Home Delivery v. NLRB, 563 F.3d 492, 496–99 (D.C. Cir. 2009). Indeed, the Supreme Court of Mississippi’s frustration was such that it declared (in 1931) that,

[t]here have been many attempts to define precisely what is meant by the term “independent contractor;” but the variations in the wording of these attempts have resulted only in establishing the proposition that it is not possible within the limitations of language to lay down a concise definition that will furnish any universal formula, covering all cases.

Kisner v. Jackson, 132 So. 90, 91 (Miss. 1931).

[32]. For this type of circular definition see, for example, Age Discrimination in Employment Act (ADEA) § 11(f), 29 U.S.C. § 630(f) (2012); Family and Medical Leave Act, 29 U.S.C. § 2611(3) (2006); Title VII, 42 U.S.C. § 2000e(f) (2012); Americans with Disability Act (ADA) § 101(4), 42 U.S.C. § 12111(4) (2012); Employee Retirement Income Security Act (ERISA) § 3, 29 U.S.C. § 1002(6) (2012).

[33]. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 325, 327 (citing Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) for the principle that “Congress means an agency law definition for ‘employee’ unless it clearly indicates otherwise” and stating that “[a]gency law principles comport . . . with our recent precedents and with the common understanding, reflected in those precedents, of the difference between an employee and an independent contractor”).

[34]. See, e.g., Slingluff v. Occupational Safety & Health Review Comm’n, 425 F.3d 861, 867–68 (10th Cir. 2005) (applying Darden to the Occupational Safety and Health Act of 1970); Birchem v. Knights of Columbus, 116 F.3d 310, 312–13 (8th Cir. 1997) (applying Darden to the American with Disabilities Act of 1990); Frankel v. Bally, Inc., 987 F.2d 86, 89–90 (2d Cir. 1993) (applying Darden to the Age Discrimination in Employment Act of 1967).

[35]. Carlson, supra note 3, at 298.

[36]. See, e.g., West v. J.O. Stevenson, Inc., 164 F. Supp. 3d 751, 763 & n.6 (E.D.N.C. 2016) (noting that “in the labor relations context, the Fourth Circuit has instructed courts to examine only the economic realities of the employment relationship” because of “the more expansive definition of ‘employ’ used in the labor relations statutes” including the “FMLA or similarly-defined [FLSA]”).

[37]. See id. See also U.S. v. Rosenwasser, 323 U.S. 360, 362–63 (1945) (noting that the FLSA definition of employment was created intentionally broad in order to fulfill the remedial purpose of the act); Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 66 (2d Cir. 2003) (same).

[38]. See, e.g., Lewis L. Maltby & David C. Yamada, Beyond “Economic Realities”: The Case for Amending Federal Employment Discrimination Laws to Include Independent Contractors, 38 B.C. L. Rev. 239, 249–50 (1997) (citing the pre-Darden case, Broussard v. L.H. Bossie, Inc., 789 F.2d 1158 (5th Cir. 1986), as an example of the continued importance of control even under the economic realities test).

[39]. See id. at 249.

[40]. See NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 127 (1944) (“Unless the common-law tests are to be imported and made exclusively controlling, without regard to the statute’s purposes, it cannot be irrelevant that the particular workers in these cases are subject, as a matter of economic fact, to the evils the statute was designed to eradicate . . . .”). See also Keith Cunningham-Parmeter, From Amazon to Uber: Defining Employment in the Modern Economy, 96 B.U. L. Rev. 1673, 1677 (2016); Guy Davidov, The Three Axes of Employment Relationships: A Characterization of Workers in Need of Protection, 52 U. Toronto L.J. 357, 363–64 (2002); Linder, supra note 19, at 190.

[41]. Alexander v. FedEx Ground Package Sys., 765 F.3d 981, 990–91 (citing Estrada v. FedEx Ground Package System, Inc., 64 Cal. Rptr. 3d 327, 336 (Ct. App. 2007), in which drivers subject to the same Operating Agreement as the Alexander plaintiffs were found to be employees based on “FedEx’s control over every exquisite detail of the drivers’ performance”).

[42]. Ochoa v. McDonald’s Corp., 133 F. Supp. 3d 1228, 1239–40 (N.D. Cal. 2015) (allowing plaintiffs to move forward with their claim that McDonald’s is a joint employer alongside its franchisees on a theory of ostensible agency); Browning-Ferris Indus. of Cal., Inc., 362 N.L.R.B. No. 186, at 2 (2015) (revising the Board’s joint employer standard to require only “[r]eserved authority to control terms and conditions of employment” and that such control need not “be exercised directly and immediately”) (emphasis added).

[43]. Goldstein et al., supra note 8, at 1094–1101 (arguing that Congress adopted the FLSA’s “suffer or permit” language from state child labor laws with the specific intention to ensure that the Act would cover workers not considered employees under the common law control test). Similarly, a 2016 Administrator’s Interpretation (AI) issued by the Obama Department of Labor specified that the Department would henceforth distinguish between “vertical” and “horizontal” joint employment and apply the “economic realities” test to determine vertical joint employer status instead of current FLSA regulations—a move that commentators immediately interpreted as reflecting “the agency’s longstanding priority to loosen joint employment standards.” Tammy McCutchen & Michael J. Lotito, DOL Issues Guidance on Joint Employment Under FLSA, Littler (Jan. 20, 2016), https://www.littler.com
/publication-press/publication/dol-issues-guidance-joint-employment-under-flsa. The AI was later withdrawn by the Trump Department of Labor. News Release, U.S. Dep’t of Labor, US Secretary of Labor Withdraws Joint Employment, Independent Contractor Informal Guidance, Release No. 17-0807-NAT (June 7, 2017), https://www.dol.gov/newsroom/releases/opa/opa20170607.

[44]. Dubal, supra note 15, at 85. A similar impulse led the Fourth Circuit to find that although Darden probably would not qualify as an employee under the control test, that outcome was inconsistent with ERISA’s purpose; consequently, they rejected it. Darden v. Nationwide Mut. Ins. Co., 796 F.2d 701, 705–06 (4th Cir. 1986), overruled in part by Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992).

[45]. Davidov, supra note 40, at 367–68 (“Over the years, however, some courts—unsatisfied with the tests in their arsenal—have begun formulating a second test, this one aimed at the economic dependence of the worker.”).

[46]. See, e.g., Cotter v. Lyft, Inc., 60 F. Supp. 3d 1067, 1075 (N.D. Cal. 2015); Cunningham-Parmeter, supra note 40, at 1677 (“scrutinizing the many sublayers of control” in order to outline “new methods for thinking about the concepts of ‘control’ and ‘employ’ that remain central to modem employment”).

[47]. See, e.g., Katherine V. W. Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace, at ix (2004) (discussing changes in work practices that demand new forms of regulation); Cynthia L. Estlund, The Ossification of American Labor Law, 102 Colum. L. Rev. 1527, 1530–32 (2002). On the importance of purposive statutory analysis, see, e.g., Brian A. Langille & Guy Davidov, Beyond Employees and Independent Contractors: A View From Canada, 21 Comp. Lab. L. & Pol’y J. 7, 12 (1999); Linder, supra note 19, at 187. See also Rachel Weiner & Lydia DePillis, How Congress Can Make Life Better for Uber Drivers and Bike Messengers, Wash. Post (June 3, 2015), http://wapo.st/1cytlM6?tid=ss_tw-bottom&utm_term=.3e485df68733 (quoting Sen. Mark Warner, D.-Virginia, as saying that “[the sharing economy] is a tidal change in the relationship between an individual and the workplace . . . . It’s stunning that nobody in Washington is talking about this”). It might even be that courts misrecognize the purpose of work law, in that they wrongly prioritize efficiency over other values like the ability to be free from subordination in a democratic society. Stephen F. Befort & John W. Budd, Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy into Focus 4–7 (2009) (making a similar argument with respect to work law’s devaluation of equity and voice); Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 Harv. L. & Pol’y Rev. 479, 500–05 (2016).

[48]. Tomasetti, supra note 15, at 315.

[49]. See, e.g., Sanjukta M. Paul, Uber as For-Profit Hiring Hall: A Price-Fixing Paradox and its Implications, 38 Berkeley J. Emp. & Lab. L. 233, 235 (2017); Dubal, supra note 15, at 123 (“Advocacy on behalf of taxi workers, for example, may involve engaging antitrust laws, regulatory laws, unfair competition laws, and even corporate laws.”). See also Ryan Calo & Alex Rosenblat, The Taking Economy: Uber, Information, and Power, 117 Colum. L. Rev. 1623, 1675 (2017) (advocating the use of consumer protection law). Intriguingly, both the antitrust and consumer protection arguments depend on taking seriously the platform argument that workers are consumers vis-à-vis the platforms through which they provide services.

[50]. See Dubal, supra note 15, at 112 (drawing on ethnographic research among San Francisco taxi drivers for the observation that “though many [immigrant and non-white] drivers recognized the potential stability of being an employee, the status made them feel more out of control of their everyday lives”).

[51]. Id. See also Yuval Feldman et al., What Workers Really Want: Voice, Unions, and Personal Contracts, 15 Emp. Rts. & Emp. Pol’y J. 237, 248 (2011) (“In other words, employees might gain more from personal contracts in terms of sense of influence and control, although in many cases they will have more limited bargaining power compared to unionized employees.”).

[52]. FedEx Home Delivery, Inc. v. NLRB, 563 F.3d 492, 497 (D.C. Cir. 2009).

[53]. Dubal, supra note 15, at 89–95 (tying the increasing importance of entrepreneurial opportunity in classifying workers to the rise of neoliberal ideology beginning in the 1970s).

[54]. See Deepa Das Acevedo, Regulating Employment Relationships in the Sharing Economy, 20 Emp. Rts & Emp. Pol’y J. 1, 3–10 (2016) (arguing that platforms participate in the transactions they facilitate and substitute themselves for governmental safeguards, in contrast to “Renters” like Zipcar or “Swappers” like Couchsurfer).

[55]. Id. It has become commonplace to preface any discussion of the sharing economy with the claim that there are no satisfactory taxonomies or definitions of this new space and by presenting a new taxonomy that can fill this definitional gap. See, e.g., Calo & Rosenblat, supra note 49, at 1466. But scholarship on the sharing economy is a few years old now and most commentators speaking from within scholarly or policy contexts have an understanding of what they and others are really interested in, even if that understanding is Potter Stewart-like in its articulation. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

[56]. I applied for admission to the following sharing economy companies, not all of which are “platforms” according to the definition I use here and elsewhere, see supra note 54 and accompanying text: TaskRabbit, Instacart, Postmates, Rover, and Gigwalk. I was accepted by Instacart, Rover, and Gigwalk, and completed Instacart’s in-store training session, but did not work any shifts; I performed one “gig” on Gigwalk; and I established one client relationship (involving multiple visits) on Rover. I also viewed videos and completed online quizzes for the introductory course offered by Samaschool, an online provider of digital skills and internet-based work training that heavily incorporates platforms into its curriculum but does not exclusively focus on them. See Samaschool, http://www.samaschool.org (last visited Aug. 14, 2018).

[57]. Scholars working on the sharing economy are increasingly mining online chat forums because of the relative difficulty in accessing sufficient numbers of platform workers for large-scale analysis and because opinions voiced on the forums have not been elicited for research purposes. See, e.g., Shu-Yi Oei & Diane M. Ring, The Tax Lives of Uber Drivers: Evidence from Internet Discussion Forums, 8 Colum. J. Tax L. 56, 66–72 (2017) (using data from Reddit.com, Uberpeople.net, and the Intuit TurboTax AnswerXchange Forum and discussing methodological approaches to the use of online discussion forums as data sources); Alex Rosenblat & Luke Stark, Algorithmic Labor and Information Asymmetries: A Case Study of Uber’s Drivers, 10 Int’l J. Comm. 3758, 3760 (2016) (using data from five unnamed Uber driver chat forums).

[58]. Although all the non-workers with whom I spoke are identified by name in this Article, I have anonymized all conversations with workers. This choice reflects a concern expressed to me by many workers about being identified while making critical comments regarding their platforms, even in the context of an academic research project. Indeed, I generally did not note down worker names in my field notes even though many of the workers I spoke with gave me their personal phone numbers for follow up conversations (I instead identified them by an interlocutor number, date, and location of interaction, much as they are referenced in footnotes below). I did record names for a few workers with whom I developed closer relationships, but our conversations continued based on an assumption of anonymity and are presented here accordingly.

[59]. A few of these interlocutors, all of whom have been giving the issues surrounding platform labor careful thought for some time now and were generous enough to share their insights with me, include Kate Bahn, Todd Brogan, Harry Campbell, Ben Davis, Nicole DuPuis, Emily Guendelsberger, Kirk Hovenkotter, Michael McCall-Delgado, Jeremy Mohler, Mel Plaut, Alex Rosenblat, Becki Smith, and Katie Unger.

[60]. Telephone Interview with Alex Rosenblat, Analyst, Data and Society (Aug. 11, 2016). See also Calo & Rosenblat, supra note 49, at 1634 (drawing on Rosenblat’s ethnography of Uber drivers).

[61]. A survey of nearly 1,200 Uber and Lyft drivers revealed that 75.9 percent prefer to be independent contractors. Harry Campbell, 2018 Uber and Lyft Driver Survey Results, TheRideshareGuy (Feb. 26, 2018), https://therideshareguy.com/2018-uber-and-lyft-driver-survey-results-the-rideshare-guy.

[62]. Sam is a composite figure based on my conversations with many platform workers. Sam’s demographic qualities are not intended to be representative of workers in any industry vertical or region: the few independent, large scale surveys we have of platform workers suggest that they are mostly young, white, and male. Still, his story reflects those of many of my interlocutors. On the profile of sharing economy workers, see, for example, Diana Farrell & Fiona Greig, JP Morgan Chase & Co. Inst., Paychecks, Paydays, and the Online Platform Economy: Big Data on Income Volatility 22 (2016); Andrew Jiang et al., The 2015 1099 Economy Workforce Report, Requests For Startups 30–39 (2015); Campbell, supra note 61.

[63]. Many observers comment on the degree to which worker participation and satisfaction is dependent on a poor grasp of the financial realities of platform work or, at the very least, as a kind of bimodal distribution where the peaks represent considerable savvy and considerable ignorance. One researcher noted that many workers’ “financial logic is ‘whenever you’re making money you’re doing well’” but that “former professionals . . . are keeping spreadsheets at home.” Another felt that “even the folks who are making it work” fail to account for things like sick days, unexpected expenses, and vacation time as lost earning time. Telephone Interview with Alex Rosenblat, Analyst, Data and Society (Aug. 11, 2016); Telephone Interview with Katie Unger, Independent Labor Consultant (Aug. 8, 2016). My own fieldwork reflects the bimodal distribution of financial sophistication. See, e.g., Telephone Interview with TaskRabbit Tasker #1 (Sept. 12, 2016) (“I don’t do enough to pay any taxes on it, I’m exempt from taxes on it . . . because (a) I’m on a woman-owned business . . . and (b) I don’t make enough . . . to pay B&O taxes on it . . . I still have to claim the income but you know it’s nominal.”); Interview with Uber Driver #8, in Phila., Pa. (July 30, 2016) (“I’m supposed to be [tracking my expenses but] it’s too complicated . . . I’m gonna see after tax season how it worked out.”).

[64]. Some of the more striking accounts of the realities of platform work include, Josh Dzieza, The Rating Game: How Uber and Its Peers Turned Us into Horrible Bosses, The Verge (Oct. 28, 2015), https://www.theverge.com/2015/10/28/9625968/rating-system-on-demand-economy-uber-olive-garden; Emily Guendelsberger, I Was an Undercover Uber Driver, My City Paper (May 7, 2015), http://mycitypaper.com/uberdriver; Sarah Kessler, Pixel and Dimed: On (Not) Getting By in the Gig Economy, Fast Company (Mar. 18, 2014), https://www.fastcompany.com/3027355/pixel-and-dimed-on-not-getting-by-in-the-gig-economy.

[65]. Some commentators have suggested that platform workers enjoy even more freedom than the ability to decide when they will be available for work by opening a smartphone app or activating an online profile. In this view, even when workers are “active” on the platform, they can decide not to work because they have the option to decline client requests. However, as others have pointed out, this is simply the freedom we all possess to resist the demands of our jobs knowing that such resistance will produce disciplinary action or termination. Compare Seth D. Harris & Alan B. Kreuger, The Hamilton Project, A Proposal for Modernizing Labor Laws for Twenty-First-Century Work: The “Independent Worker” 9 (2015) (“Even if she does not turn off either app, she is not obligated to pick up any particular customer.”), with Ross Eisenbrey & Lawrence Mishel, Uber Business Model Does not Justify a New ‘Independent Worker’ Category, Econ. Pol’y Inst. (Mar. 17, 2016), https://www.epi.org/publication/uber-business-model-does-not-justify-a-new-independent-worker-category (“Uber drivers cannot keep their app on and monitoring potential riders and refuse to accept rides without incurring serious consequences, including being deactivated (i.e., fired) for having too low an ‘acceptance rate.’”). Note that Uber changed its official policy regarding deactivation in 2016 and that now, drivers should not be deactivated for low acceptance rates, but rather be subject to the smaller disciplinary measure of a temporary “time out” by being involuntarily logged out of the app. Harry Campbell, How to Take Advantage of Uber’s New Acceptance Rate Policy, TheRideshareGuy, (Aug. 5, 2016), https://therideshareguy.com/how-to-take-advantage-of-ubers-new-acceptance-rate-policy (describing the old acceptance rate policy, the new “time out” policy, and the benefits of being able to take longer to accept requests).

[66]. Interview with Uber Driver #19, in Phila., Pa. (Aug. 14, 2016) (stating no more than 6 hours per day); Interview with Uber Driver #34, in Phila., Pa. (Sept. 3, 2016) (stating only weekends).

[67]. Interview with Uber Driver #35, in Phila., Pa. (Sept. 3, 2016).

[68]. Id.

[69]. Interview with Uber Driver #42, in Phila., Pa. (Sept. 12, 2016) (“You leave, I put on some Spanish music . . . some hip hop . . . . I like it.”); Interview with Uber Driver #37, in Phila., Pa. (Sept. 4, 2016) (playing loud classical music during the ride); Interview with Uber Driver #57, in Phila., Pa. (Oct. 3, 2016) (waiting for twnty to thirty minutes, then targeting high-demand areas); Interview with Uber Driver #14, in Phila., Pa. (Aug. 6, 2016) (remaining parked in between rides).

[70]. See generally What 2 Things Do You Wish You Knew Before You Started Hosting, Airbnbhostsforum.com (Sept. 27, 2016), https://airhostsforum.com/t/what-2-things-do-you-wish-you-knew-before-you-started-hosting/8133/37 (allowing users to recommend how to host).

[71]. Marc Linder, Towards Universal Worker Coverage Under the National Labor Relations Act: Making Room for Uncontrolled Employees, Dependent Contractors, and Employee-Like Persons, 66 U. Det. L. Rev. 555, 556 (1989).

[72]. See, e.g., Over/Uber, Comment to Advice to Addictive Personalities, UberPeople.net (Jan. 30, 2017), https://uberpeople.net/threads/advice-to-addictive-personalities.137449 (describing the “rush of thinking the ‘system’ or competing drivers have been outsmarted, the rider outwitted”).

[73]. See Matt MacFarland, Uber’s Remarkable Growth Could End the Era of Poorly Paid Cab Drivers, Wash. Post (May 27, 2014), https://wapo.st/TOpLVu?tid=ss_tw-bottom&utm_term
=.282f4583ee7d (“According to Uber, the median wage for an UberX driver working at least 40 hours a week in New York City is $90,766 a year.”).

[74]. Interview with Uber Driver #34, in Phila., Pa. (Sept. 3, 2016) (describing a $200 per week goal); Interview with Uber Driver #51, in Phila., Pa. (Sept. 30, 2016) (describing a $200 per day goal); Interview with Lyft Driver #2, in Phila., Pa. (Mar. 22, 2017) (stating that he drives enough to cover his car payments).

[75]. Dubal, supra note 15, at 69, 112–20. There may be parallel divisions in the rideshare context based on full-time versus part-time status rather than on race. See Campbell, supra note 61 (“When comparing full-time vs part-time drivers, we see a slight preference toward employee status from full-time drivers but a majority still want to be independent contractors.”).

[76]. Dubal, supra note 15, at 117–20.

[77]. Id. at 113–15.

[78]. Id. at 111–14.

[79]. Indeed, Pettit—quoting Kant, who was responding to Rousseau—says something like this when he observes that “[f]ind himself in what condition he will, the human being is dependent on many external things . . . But what is harder and more unnatural than this yoke of necessity is the subjection of one human being under the will of another. No misfortune can be more terrifying . . . .” Pettit, On the People’s Terms, supra note 9, at 44.

[80]. M.C. Elish, Moral Crumple Zones: Cautionary Tales in Human-Robot Interaction 1–2 (We Robot, Working Paper Presented at We Robot Conference, 2016) (on file with author) (explaining “moral crumple zones” in the context of human-machine systems like airplane cockpit control and nuclear plant emergency protocols, and stating that “humans at the interface between customer and company are like sponges, soaking up the excess of emotions that flood the interaction but cannot be absorbed by faceless bureaucracy or an inanimate object”). Not having a human “crumple zone” is important for “employer” perceptions of self as well as lay or legal perceptions of the alleged employer. See, e.g., Lilly Irani, Difference and Dependence among Digital Workers: The Case of Amazon Mechanical Turk, 114 S. Atl. Q. 225, 226–27 (2015) (“The transformation of workers into a computational service . . . serves not only employers’ labor needs and financial interests but also their desire to maintain preferred identities; that is, rather than understanding themselves as managers of information factories, employers can continue to see themselves as much-celebrated programmers, entrepreneurs, and innovators.”).

[81]. Noah Zatz, Beyond Misclassification: Gig Economy Discrimination Outside Employment Law, On Labor (Jan. 19, 2016), https://onlabor.org/beyond-misclassification-gig-economy-discrimination-outside-employment-law (discussing “the simmering concern about how customer feedback ratings may hard-wire discrimination into the supervisory techniques of gig economy platforms”).

[82]. Farrell & Greig, supra note 62, at 5; Aaron Smith, Gig Work, Online Selling and Home Sharing, Pew Research Ctr. (Nov. 17, 2016), http://www.pewinternet.org/2016/11/17/gig-work-online-selling-and-home-sharing; Interview with Sarah Leberstein, Attorney, Nat’l Emp’t Law Project, in N.Y.C., N.Y. (July 28, 2016); Telephone Interview with Rebecca Smith, Deputy Director, Nat’l Emp’t Law Project (Aug. 30, 2016).

[83]. Add Me to Another Driver-Partner’s Profile, Uber, https://help.uber.com/h/c736a696-3eac-422a-a7f7-7d61e532d7c8 (last visited Aug. 16, 2018).

[84]. Indeed, the personal labor of Airbnb hosts has interesting implications for the acceptability of pink- and blue-collared work. Juliet B. Schor, Does the Sharing Economy Increase Inequality Within the Eighty Percent?: Findings from a Qualitative Study of Platform Providers, 10 Cambridge J. Regions, Econ. & Soc’y 263, 272–75 (2017) (discussing how platforms are getting white collar workers to perform pink- and blue-collar work by presenting the work as novel and technologically advanced). Pink collar work is work that is neither “white collar” (professional or managerial) nor “blue collar” (manual, whether skilled or unskilled); it is traditionally associated with clerical and secretarial office work, but often extends to other forms of personal service work that are similarly dominated by women. Emily Stoper, Women’s Work, Women’s Movement: Taking Stock, 515 Ann. Am. Acad. Pol. & Soc. Sci. 151, 156 (1991) (discussing pink collar jobs in the course of analyzing approaches to reducing the wage gap between men and women).

[85]. Rebecca Smith & Sarah Leberstein, Nat’l Emp. L. Project, Rights On-Demand: Ensuring Workplace Standards and Worker Security in the On-Demand Economy 4 (2015).

[86]. Lee et al., who first applied the term “algorithmic management” to platform work, describe it as a phenomenon enabled by “software algorithms that assume managerial functions and surrounding institutional devices that support algorithms in practice.” See Min Kyung Lee et al., Working with Machines: The Impact of Algorithmic and Data-Driven Management on Human Workers, 33 Ann. ACM Conf. on Hum. Factors in Computing Sys. 1603 (2015). They go on to study three “algorithmic features” of rideshare platforms: “passenger-driver assignment, the dynamic display of surge-priced areas, and the data-driven evaluation that uses acceptance rates and ratings.” Id at 1604. See generally Rosenblat & Stark, supra note 57 (seeming to expand this understanding of algorithmic management by also including minimum fares, rate cuts, and dispute resolution within its ambit). Regardless of one’s exact definition of algorithmic management, both “labor” and “capital” platforms clearly engage in it.

[87]. Indeed, not all of the labor and employment problems considered by commentators who draw this distinction pertain to the regulation of work: sometimes, as with the JPMorgan report, labor and capital platforms are distinguished from one another because doing so tracks meaningful differences in who is participating, as well as how and why they are participating.

[88]. I understand interference as the “removal, replacement or misrepresentation of one or more options” available to an individual. Pettit, On the People’s Terms, supra note 9, at 46. It is worth noting that Pettit views the attachment of a penalty as the “replacement” of one option with another that is different and less desirable (though perhaps not by much). Id. at 53. He also considers “misrepresentation” to include any action that “denies you the possibility of making a choice on the basis of a proper understanding of the options on offer” and lists “mesmerizing you with the prospect of extraordinary rewards” as one way of doing this. Id. at 55.

[89]. Das Acevedo, supra note 7, at 42–43 (discussing these and other types of discipline established by platforms); Rosenblat & Stark, supra note 57, at 3761.

[90]. Id. at 43–44 (discussing elite statuses). On codes of conduct, see Katie Benner, Airbnb Adopts Rules to Fight Discrimination By its Hosts, N.Y. Times (Sept. 8, 2016), https://nyti.ms/2cw2IsD, for a description of Airbnb’s new “community commitment” to non-discrimination that new and returning users must agree to before they can make bookings on the platform and Airbnb’s Nondiscrimination Policy: Our Commitment to Inclusion and Respect, Airbnb https://www.airbnb.com/help/article
/1405/airbnb-s-nondiscrimination-policy–our-commitment-to-inclusion-and-respect (last visited Aug. 16, 2018), for a description of Airbnb’s detailed non-discrimination policy—mostly geared towards hosts—that is powerfully reminiscent of Title VII and the ADA.

[91]. See Rosenblat & Stark, supra note 57, at 3765–71 (discussing surge pricing). This is not to say that surge pricing succeeds in “mesmerizing” drivers into behaving according to the wishes of platforms—“don’t chase the surge” is standard advice to new drivers—but interference is not predicated on successful manipulation. Pettit, On the People’s Terms, supra note 9, at 55–56; Rosenblat & Stark, supra note 57, at 3766.

[92]. Noam Scheiber, How Uber Uses Psychological Tricks to Push Its Drivers’ Buttons, N.Y. Times (Apr. 2, 2017), https://nyti.ms/2nMmDtc (discussing the use of earnings goals, among other things, to shape driver behavior “without giving off a whiff of coercion”).

[93]. For instance, rideshare drivers complain frequently about acceptance rate and surge pricing policies, but seem to take less issue with elite status policies. See Lee et al., supra note 86, at 1603, 1608 (discussing disapproval of acceptance rate and surge pricing policies).

[94]. An English employment tribunal poked fun at the interpretation of worker behavior as the result of good, but independently exercised business sense rather than as the product of a centralized authority, stating that “[t]he notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous.” Aslam v. Uber B.V., No. 2202550/2015, at 28 (Emp.’t Tribunals Oct. 28, 2016).

[95]. In the neo-republican account, domination destroys freedom because it involves the power to restrict choice regardless of whether or not that power is actually exercised. To be sure, where domination leads to actual interference, the interference is itself also a manifestation of unfreedom. See, e.g., Pettit, On the People’s Terms, supra note 9, at 50.

[96]. Much of the neo-republican literature refers to this state of affairs as vulnerability to the “arbitrary” will of another being, but Pettit rightly points out that modern English usage makes arbitrary a misleading choice of words: what matters isn’t the irrationality or unpredictability of the external will imposing itself upon you, but the fact that that will is uncontrolled by you in any meaningful sense. Compare Rogers, supra note 47, at 500 (using “arbitrary”), with Pettit, On the People’s Terms, supra note 9, at 58 (preferring “uncontrolled interference” to “arbitrary interference”).

[97]. Pettit uses the terms “adaptation” and “ingratiation” instead of servility, but—at least in the employment context—these do not quite capture the sense of self-abnegation that I think worries critics. Pettit, On the People’s Terms, supra note 9, at 64–65.

[98]. Like Sam, Alex is a composite figure.

[99]. See Schor, supra note 84, at 272–74 (discussing the performance of pink and blue-collar tasks by white collar platform workers).

[100]. One of the Uber drivers I interviewed said just this about his early experiences as a driver. He coped by switching off the app after completing just one ride per day until, after a few days, he felt he was sufficiently desensitized to handle more passengers without communicating his discomfort through his conversation. It took two more weeks for him to be comfortable driving full time. Interview with Uber Driver #24, in Phila., Pa. (Aug. 20, 2016).

[101]. Another driver who emphasized his interests in psychology noted: “Sometimes somebody gets in your car and the best customer service you can provide is to say nothing . . . you can tell almost automatically . . . some people don’t have that gear but I know when to talk, when not to talk.” Interview with Uber Driver #26, in Phila., Pa. (Aug. 31, 2016).

[102]. Food smells are a common topic of conversation on the Airbnb hosts’ forum. See, e.g., Guest Refuses to Stay Due to Smell?, Airbnbhostsforum.com (June 28, 2016), https://airhostsforum.com
/t/guest-refuses-to-stay-due-to-smell/5859; How Much Does Indian Food Smell Matter to Others?, Airbnbhostsforum.com (Oct. 11, 2016), https://airhostsforum.com/t/how-much-does-indian-food-smell-matter-to-others/8855.

[103]. See Airbnb’s Nondiscrimination Policy, supra note 90.

[104]. Workers—not just within the sharing economy—do often describe their efforts in somewhat heroic language. See, e.g., Dubal, supra note 15, at 119 (“As a taxi driver, I’m navigating San Francisco streets. My customer’s lives are in my hands as I take them from place to place. I am handling a weapon.”); Interview with Uber Driver #50, in Phila., Pa. (Sept. 19, 2016) (“I’m a superhero [because I get people to work].”). Uber has also added a tip feature in its app. Darrell Etherington, Uber Tipping Is Rolling Out to 121 U.S. and Canadian Markets Today, TechCrunch (July 6, 2017), https://techcrunch.com/2017/07/06/uber-tipping-is-rolling-out-to-121-u-s-and-canadian-cities-today.

[105]. One of the drivers I spoke with expressed all these sentiments at once. Interview with Uber Driver #55, in Phila., Pa. (Oct. 1, 2016) (“I was Ubering so much I wasn’t getting much sleep . . . . Sometimes I do get a little angsty, I wanna get out there . . . you know, tuition’s due. The sad part [is that] I was thinking about retiring in four years . . . now Uber’s talking about driverless cars in four years so what I’m gonna do?”).

[106]. To be clear, I am not using “unfree” in the sense that historians of nineteenth century labor law do. See, e.g., Robert J. Steinfeld, Coercion, Contract and Free Labor in the Nineteenth Century 33 (2001) (calling “unfreedom” the “coercion of labor through threats of corporal punishment or confinement”). Rather, I am using “unfreedom” to signal a less technical sense (albeit more aligned with agency law) that an individual’s actions are not her own to control.

[107]. Changes need not only be of the job-negating variety. When TaskRabbit overhauled its system in 2014 from a bidding format to a selection and assignation format, it too effected systemic changes of the type being discussed here. Colleen Taylor, Through the Fire: What TaskRabbit Learned From Its Big Backlash, TechCrunch (Jan. 21, 2015), https://techcrunch.com/2015/01/21/through-the-fire-what-taskrabbit-learned-from-its-big-backlash.

[108]. But cf. Calo & Rosenblat, supra note 49, at 1631. As rideshare expert Harry Campbell notes, technological obstacles to driverless cars are often both overestimated and underestimated. On the one hand, Tesla models are just a shade away from being able to do the work of navigating roadways. On the other hand, driving—especially driving for hire—involves far more than successfully decelerating or changing lanes. What happens when an Uber passenger vomits in a driverless vehicle? Or when a temporary roadblock is erected halfway down a one-way street? There will surely be technological fixes for these issues, but Campbell suggests that we are far from having them on hand. Moreover, he suggests that given the thickness of regulatory infrastructure in the United States, driverless transportation—whether in the form of individual cars or something analogous to Hyperloop—is likely to debut in a more flexible environment (with his personal pick being Dubai). Telephone Interview with Harry Campbell, TheRideshareGuy.com (Apr. 17, 2017).

[109]. There are certainly strong connections between “uncertainty” on the one hand and “vulnerability” (as in the work of Martha Albertson Fineman) and “dependence” (as under the economic realities test) on the other hand. However, I have used uncertainty because it seems to best capture the source of platform workers’ vulnerability to and dependence on their platforms and consumers. See generally Sec’y Labor v. Lauritzen, 835 F.2d 1529, 1534 (7th Cir. 1987) (“For purposes of social welfare legislation, such as the FLSA, ‘employees are those who as a matter of economic reality are dependent upon the business to which they render service.’”) (citations omitted); Martha Albertson Fineman, The Vulnerable Subject and the Responsive State, 60 Emory L.J. 251 (2010) (arguing that vulnerability and dependence are inescapable aspects of the human condition and criticizing the extent to which they are overlooked in liberal law and policy analysis). Vulnerability has also been important to calls for a purposive approach to worker classification. See, e.g., Davidov, supra note 40, at 361.

[110]. Over the course of the nineteenth century, the default rule for employment in the United States came to be that it exists “at will”—that is, so long (and only so long) as both parties are willing to uphold the contract. An employer does not have to offer cause or notice for terminating an employee, and vice versa. This principle, often called Wood’s Rule for its ostensible origins in Horace Gray Wood’s 1877 treatise Master and Servant, is usually captioned as allowing termination for “good reason, bad reason, or no reason at all.” See, e.g., Paul M. Secunda, Constitutional Employment Law: Zimmer’s Intuition on the Future of Employee Free Speech Law, 20 Emp. Rts & Emp. Pol’y J. 393, 405 (2016). The uniquely American nature of Wood’s Rule does not explain the dissatisfaction with control-based analysis I describe here because similar criticisms of control as an analytic rubric have been voiced in other contexts lacking at-will employment. See Jeremias Prassl, The Concept of the Employer 1–7 (2015) (discussing, primarily in the context of English law, the problem with control-based analysis that seeks to identify “employees”); Rachel Arnow-Richman, Just Notice: Re-Reforming Employment at Will, 58 UCLA L. Rev. 1, 48–57 (2010) (discussing the non-at-will systems in Canada, the UK, and various European countries); Langille & Davidov, supra note 47, at 15–16 (noting the importance of control to Canadian worker classification doctrine in a section titled “Our ‘Traditional’ Problem”).

[111]. Calo & Rosenblat, supra note 49, at 1665.

[112]. Fiverr’s Level System, Fiverr, https://www.fiverr.com/levels (last visited Aug. 16, 2018). Fiverr is an odd-job platform where clients can hire workers to perform a range of tasks, including anything from translating a document to designing a website. The platform began with the premise that all tasks would cost just $5, but it has since expanded its pricing approach into a complex system whereby workers gain the right to tailor the cost and nature of the services they offer as they climb Fiverr’s internally constructed hierarchy of elite service provider statuses. See Das Acevedo, supra note 7, 42–43 (discussing vetting and termination standards and the benefits that come with elite statuses across several platforms).

[113]. See Noopur Raval & Paul Dourish, Standing Out From the Crowd: Emotional Labor, Body Labor, and Temporal Labor in Ridesharing, 19 ACM Conf. Comp.-Supported Cooperative Work & Soc. Computing 101 (“‘Pleasing the passenger’ is clearly an aspect of any ridesharing system, including traditional taxis, but it plays a much bigger role in crowd labor due to the specific intermediation of quantitative scores.”).

[114]. Pettit, On the People’s Terms, supra note 9, at 64–67.

[115]. Dzieza, supra note 64.

[116]. Erving Goffman’s classic account of face-to-face encounters as “games” is particularly visible in the one-to-one or one-to-many interactions of the sharing economy. Goffman notes that in games like checkers or chess, the rules of the outside world are more or less suspended during the course of the interaction. Erving Goffman, Encounters: Two Studies in the Sociology of Interaction 26 (1961). When platform workers perform emotional labor, they are following their own internal “rules of the game” by ignoring gender and class stereotypes attached to pink and blue-collar tasks. Schor, supra note 84, at 272–74.

[117]. Arlie Hochschild’s understanding of emotional labor remains definitive, as does her classic “flight attendant” illustration:

The flight attendant does physical labor when she pushes heavy meal carts through the aisles, and she does mental work when she prepares for and actually organizes emergency landings and evacuations. But in the course of doing this physical and mental labor, she is also doing something more, something I define as emotional labor. This labor requires one to induce or suppress feeling in order to sustain the outward countenance that produces the proper state of mind in others—in this case, the sense of being cared for in a convivial and safe place. This kind of labor calls for a coordination of mind and feeling, and it sometimes draws on a source of self that we honor as deep and integral to our individuality.

Arlie Russell Hochschild, The Managed Heart: Commercialization of Human Feeling 6–7 (1983).

[118]. DRider85, Comment to Uber and Lyft Should Get Rid of 5 Star Ratings, UberPeople.net (Feb. 1, 2017), https://uberpeople.net/threads/uber-and-lyft-should-get-rid-of-5-star-ratings.137751.

[119]. Written communication style—punctuation, vocabulary, and the use of politeness conventions, for example—reflects and shapes “real-world” dynamics. Naomi S. Baron and Rich Ling, Necessary Smileys and Useless Periods: Redefining Punctuation in Electronically-Mediated Communication, 45 Visible Language 46, 55 (2011) (observing that female study participants “were vocal about the importance of using emotion-tinged punctuation markers . . . both to express their ‘enthusiasm’ for the communications they were crafting as well as to soften messages that might otherwise seem overly direct”). When a TaskRabbit tasker texts immediately after receiving a client request with a series of short, enthusiastic questions liberally sprinkled with exclamation marks, she is not simply responding in a naturally excited or voluble way, she is trying to ingratiate herself with her client by demonstrating her interest in service as much as the Uber driver who unnecessarily asks her clients about restaurants.

The centrality of emotional labor simply places platforms at the tail end of a very long line of service jobs in which the work to be done encompasses much more than the cleaning of a bathroom or the distribution of in-flight beverages, and where the affective dimensions of that work—and the display of pleasure in service—serve to refashion power disparities as good customer service. See generally Hochschild, supra note 117; Robin Leidner, Emotional Labor in Service Work, 561 Annals Am. Acad. Pol. & Soc. Sci. 81 (1999) (discussing McDonald’s fast food restaurants).

[120]. In this vein, Hochschild distinguishes “surface acting”—in which “we deceive others about what we really feel, but we do not deceive ourselves”—from “deep acting”—in which “we make feigning easy by making it unnecessary.” Hochschild, supra note 117, at 33. She notes that “[t]he matter would be simpler and less alarming” if workers were “allowed to see and think as they like and required only to show feeling (surface acting) in institutionally approved ways” but that “[s]ome institutions have become very sophisticated in the techniques of deep acting; they suggest how to imagine and thus how to feel.” Id. at 49.

[121]. Indeed, in one of the earliest first-hand journalistic accounts of platform work (and in the context of an article that was otherwise rather critical of the workings of ridesharing), Emily Guendelsberger observes that she was “weirdly proud” of the fact that she maintained a perfect five-star rating during her first few days as an Uber driver. Emily Guendelsberger, supra note 64.

[122]. Scheiber, supra note 92.

[123]. Id.

[124]. Pettit, On the People’s Terms, supra note 9, at 65.

[125]. See Scheiber, supra note 92 (describing various tools or approaches that Uber has developed using behavioral science insights to control driver desires as well as driver actions, including: having Uber employees adopt female personas when interacting with drivers, exploiting the “ludic loop” phenomenon by setting random, but concrete and constantly-shifting goals (e.g., “you’re $5.25 away from earning $330!”), offering work statistics and feedback in formats akin to video game scores to trigger competitive urges, and capitalizing on inertia and loss aversion by using automatic queuing features like “forward dispatch” to keep drivers on the road).

[126]. Anthropologists have been thinking of resistance as more than self-conscious group protest for some time now. Sally Engle Merry, Resistance and the Cultural Power of Law, 29 Law & Soc’y Rev. 11, 15 (1995) (describing the movement toward understanding resistance as consisting of “subtle, unrecognized practices, such as foot-dragging, sabotage, subversive songs, and challenges to the law’s definition of personal problems in court”). See generally Rosenblat & Stark, supra note 57 (conducting a study of Uber driver chat forums that also speaks to the way drivers contest passenger and platform narratives). On “gaming” the system, see, for example, Nick Loper, How I Got on the Homepage of Fiverr and Earned $920 in 10 Days, Side Hustle Nation (Apr. 21, 2014), https://www.sidehustlenation.com
/fiverr-homepage-earned-920-in-10-days (describing several strategies for achieving a high-ranking on search results or a platform webpage). See also Advice to Addictive Personalities: Post of Over/Uber, UberPeople.net (Jan. 30, 2017), https://uberpeople.net/threads/advice-to-addictive-personalities
.137449 (describing the “rush of thinking the ‘system’ or competing drivers have been outsmarted, the rider outwitted”).

Lastly, several commentators as well as several of my own interlocutors have described the practice of “going off app” by concluding an initial transaction or establishing repeat transactions directly between the worker and consumer. See, e.g., Kessler, supra note 64 (describing her initial guilt at accepting payment “off app,” but subsequent willingness to do so because of the unexpected difficulty in acquiring gigs); Conversation with Rover client #1, in Phila., Pa. (Jan. 19, 2017) (during which the client assumed we would schedule all sessions off the app); Interview with Uber Driver #25, in Phila., Pa. (Aug. 31, 2016) (describing the same practice involving ridesharing); Telephone Interview with Blow Me Worker #1 (Aug. 11, 2016) (describing how the stylist met new clients via the app and scheduled subsequent sessions with them directly).

[127]. In other words, the uncertainty generated by the power dynamics of platform work—as well as the conformity and obsequiousness it prompts—constitute a “habitus,” or system of embodied tendencies that are “structured structures predisposed to function as structuring structures.” Pierre Bourdieu, Outline of a Theory of Practice 53 (1977).

[128]. Tomasetti, supra note 15, at 366 (describing UCS as “the setting forth of detailed and extensive work rules in the written contract governing the work” and noting that it “is not just artifice disguising the alleged employer’s open-ended authority over production . . . but to some extent meaningfully directs the worker”).

[129]. Id. at 368 (describing how many courts view upfront specification as removing the need for supervision rather than encoding supervision into the contract).

[130]. Id. at 374 (discussing In re FedEx Ground Package Sys., Inc., 869 F. Supp. 2d 942 (N.D. Ind. 2012)).

[131]. See, e.g., Alexander v. FedEx Ground Package Sys., 765 F.3d 981, 997 (9th Cir. 2014) (finding that FedEx drivers are employees).

[132]. Tomasetti, supra note 15, at 368–76 (discussing several other examples of UCS analysis, including EEOC v. North Knox School Corp., 154 F.3d 744, 748 (7th Cir. 1998) (describing UCS analysis in a case involving school bus drivers); SIDA of Hawaii, Inc. v. NLRB, 512 F.2d 354, 358 (9th Cir. 1975) (containing similar analysis involving taxi drivers); and Brown v. Sears, Roebuck & Co., 31 Employee Benefit Cas. (BNA) 2467, 2470 (N.D. Ill. Sept. 24, 2003), aff’d, 125 F. App’x 44 (7th Cir. 2004) (containing similar analysis, but involving the employees of a Sears contractor that was responsible for selling and installing home improvements like roofs, gutters, and fences)).

[133]. Tomasetti, supra note 15, at 325 (noting that the “UCS poses an intractable quandary for evaluating claims of control in employment status disputes and that the conundrum is rooted in the contradictory incorporation of master-servant authority into contract”). The results in FedEx cases where drivers are not found to be employees despite various forms of UCS-enabled authority seem counterintuitive because they clash with a vision of freedom as non-domination. Take two of the practices that FedEx presents in support of its position: drivers are free to subcontract their routes and they are not required to work specified hours. Alexander, 765 F.3d at 984–85. Both rightly suggest that FedEx does not engage in the kind of over-the-shoulder monitoring that would constitute violations of freedom-as-non-interference because the company is not telling a particular driver that she herself has to work these particular hours. Id. at 985. But drivers—and many commentators—feel that their freedom is nonetheless compromised for reasons that reflect an understanding of freedom as non-domination. For instance, drivers’ ability to subcontract is at the unlimited discretion of company officials, which raises familiar concerns like uncertainty and obsequiousness. Id. at 994. Likewise, drivers are not really free to work any hours they want because FedEx engages in highly sophisticated calculations to ensure that every driver works 9.5–11 hours daily, reports for pickup in the mornings, remains until all her packages are collected, and delivers certain packages at specific times—in other words, FedEx artificially and unilaterally limits drivers’ freedom ex ante so that they can “choose” to do exactly what FedEx desires. Id. at 984–85.

[134]. See Eileen Silverstein, From Statute to Contract: The Law of the Employment Relationship Reconsidered, 18 Hofstra J. Lab. & Emp. L. 479, 482 (2001).

[135]. Id. at 511.

[136]. Waivers are generally assessed for indications that they were “knowing and voluntary,” and most courts make this determination using the capacious (and thus employer-friendly) “totality of the circumstances” standard. Id. at 484, 491 n.67. Congress did enact more stringent requirements for determining that a waiver was “knowing and voluntary” via the Older Workers Benefit Protection Act of 1990 (OWBPA), but most courts only apply the OWBPA’s seven-step analysis in cases involving the Age Discrimination in Employment Act. Id. at 488–92 & nn. 61–67.

[137]. Id. at 493.

[138]. And indeed, situations in which X changes the set of options available to Y (even by attaching a reward to one of the options) or situations in which X deceives or manipulates Y into picking a specific option are equally unlikely to constitute “free choice” under a vision of freedom as non-domination. Pettit, On the People’s Terms, supra note 9, at 50–56.

[139]. See Silverstein, supra note 134, at 484; Tess Wilkinson-Ryan, Intuitive Formalism in Contract, 163 U. Pa. L. Rev. 2109, 2110, 2127 (2015) (stating that just as modern contract doctrine posits that “potentially enforceable deals (i.e., those that are supported by consideration and not illegal or unconscionable)” should be upheld “when the parties have objectively manifested assent,” “[t]he fact of assent seems, for the average consumer, to cleanse the transaction—to press the reset button, morally as well as legally” on the issue of enforceability).

[140]. Gourevitch, supra note 9, at ch. 4. See also Carlson, supra note 3, at 310 (noting that “control over work was never the exclusive test of status for either respondeat superior or other statutory purposes”).

[141]. Gourevitch, supra note 9, at 103.

[142]. Id.

[143]. See infra notes 155–56, 159–60.

[144]. Fair Labor Standards Act of 1938, 29 USC § 201, §§ 203(d)–(e) (2012); Rutherford Food Corp. v. McComb, 331 U.S. 722, 727–30 (1947) (applying the economic realities test to the FLSA). Of course, the economic realities test was not originally limited to, or even articulated with respect to, the FLSA. See, e.g., United States v. Silk, 331 U.S. 704, 717–20 (1947) (elaborating the economic realities test in a case involving the Social Security Act); NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 127–29 (1947) (articulating the rationale underlying the economic realities test in a case involving the NLRA); Carlson, supra note 3, at 311–14 (discussing analysis consonant with the economic realities test in Lehigh Valley Coal v. Yensavage, 218 F. 547 (2d Cir. 1914).

[145]. See, e.g., Katherine V. W. Stone, Legal Protections for Atypical Employees: Employment Law for Workers Without Workplaces and Employees Without Employers, 27 Berkeley J. Emp. & Lab. L. 251, 257–59 (2006).

[146]. Bruce Goldstein et al., Enforcing Fair Labor Standards in the Modern American Sweatshop: Rediscovering the Statutory Definition of Employment, 46 UCLA L. Rev. 983, 1043 (1999) (tracing the historical meaning of “suffer or permit” and arguing that, in the state child labor statutes from which it originates, the phrase meant that “when a business owner had the means to know and the power to prevent acts proscribed by the legislature, it made no difference whether the owner’s employee or an independent contractor engaged a minor child to perform the work”).

[147]. Browning-Ferris Indus. of Cal., Inc., 362 N.L.R.B. No. 186 (2015).

[148]. Erin Conway & Caroline Fichter, Surviving the Tempest: Franchisees in the Brave New World of Joint Employers and $15 Now, 35 Franchise L.J. 509, 515 (2016) (observing that the “change in the NLRB employer test is vehemently opposed by the International Franchise Association (IFA) and bemoaned as the end of franchising altogether by some”) (citations omitted); David J. Kaufmann et al., A Franchisor Is Not the Employer of its Franchisees or Their Employees, 34 Franchise L.J. 439, 448–52 (2015) (discussing the dangerous implications of Browning-Ferris and the McDonald’s inquiry on business-format franchisors).

[149]. Browning-Ferris, 362 N.L.R.B. No. 186, at 2 (emphasis in original).

[150]. Id.

[151]. NLRB Office of the General Counsel Issues Consolidated Complaints Against McDonald’s Franchisees and Their Franchisor McDonald’s, USA, LLC as Joint Employers, NLRB.gov (Dec. 19, 2014), https://www.nlrb.gov/news-outreach/news-story/nlrb-office-general-counsel-issues-consolidated
-complaints-against.

[152]. In 2016, the Board affirmed and built on its Browning-Ferris precedent by holding that solely employed workers and jointly employed workers need not obtain employer assent if they wish to form a single (and otherwise appropriate) bargaining unit. Miller & Anderson, Inc., 364 N.L.R.B. No. 39, at 13–14 (2016).

[153]. See generally Hy-Brand Indus. Contractors, 365 N.L.R.B. No. 165 (2017). However, the NLRB later vacated Hy-Brand and in 2018 undertook an unusual notice-and-comment rulemaking process on the joint-employer standard. Board Vacates Hy-Brand Decision, NLRB.gov (Feb. 26, 2018), https://www.nlrb.gov/news-outreach/news-story/board-vacates-hy-brand-decision; NLRB Considering Rulemaking to Address Joint-Employer Standard, NLRB.gov (May 9, 2018), https://www.nlrb.gov
/news-outreach/news-story/nlrb-considering-rulemaking-address-joint-employer-standard.

[154]. See infra notes 155, 159–60.

[155]. See, e.g., Linder, Towards Universal Worker Coverage Under the National Labor Relations Act, supra note 71, at 555 (calling the Taft-Hartley amendments to the NLRA “[s]tatutory encouragement” for “[o]ne of the successful tactics employers have used in recent years to rid themselves of existing labor unions and to avoid collective bargaining”—namely the reclassification of employees as independent contractors).

[156]. Sean Farhang & Ira Katznelson, The Southern Imposition: Congress and Labor in the New Deal and Fair Deal, 19 Stud. Am. Pol. Dev. 1, 12–15 (2005) (describing southern efforts to shield the remnants of antebellum work structures from the New Deal by carving out statutory exclusions for predominantly black labor); Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 Tex. L. Rev. 1335, 1336 (1987) (same). See also Vivien Hart, Minimum-Wage Policy and Constitutional Inequality: The Paradox of the Fair Labor Standards Act of 1938, 1 J. Pol’y Hist. 319, 337 (1989) (discussing the original version of the FLSA and observing that “because of the segregated, stereotyped, and regional structure of the job market, excluded workers were disproportionately women and from minorities”).

[157]. NLRB v. Hearst Publ’ns, 322 U.S. 111 (1944); Carlson, supra note 3, at 322–24 (discussing Taft-Hartley as a response to Hearst); Dubal, supra note 15, at 82–84 & nn. 48–53 (discussing the importance of business interests in motivating the 80th Congress’s efforts to unravel New Deal legislation and referencing prior scholarship arguing the same).

[158]. Clifford Geertz, Deep Play: Notes on the Balinese Cockfight, in The Interpretation of Cultures 412, 449 (1973).

[159]. Carlson, supra note 3, at 298; Jeffrey M. Hirsch, Employee or Entrepreneur?, 68 Wash. & Lee L. Rev. 353, 360–61 (2011) (discussing the power of federal appellate courts, and especially of the D.C. Circuit, with respect to labor law generally and the NLRB in particular).

[160]. See, e.g., Cunningham-Parmeter, supra note 40, at 1704 (“Many judges narrowly construe the meaning of control because no clear standard exists to outline the boundaries of employer-employee relationships.”); Tomasetti, supra note 15, at 336 & n.110 (citing various scholars who argue that one explanation for “the legal uncertainty regarding employment status is that the legal standards are hopelessly imprecise and unwieldy”).

[161]. Charles W. McCurdy, The “Liberty of Contract” Regime in American Law, in The State and Freedom of Contract 161, 165 (Harry N. Scheiber ed., 1998) (“[N]o amount of thoughtful revisionism can erase the fact that the ‘principle of neutrality’ did not have a uniform operation . . . the freedom of contract decisions handed down by American courts beginning in the 1880s showed ‘a definite bias of policy’ against statutes favoring ‘the interest . . . of labor.’”); Matthew J. Lindsay, In Search of “Laissez-Faire Constitutionalism,” 123 Harv. L. Rev. F. 55, 55, 57 (2010) (describing the “progressive” critique of Lochner era jurisprudence as emphasizing the judiciary’s identification “with the nation’s capitalist class” and its “contempt for any effort to redistribute wealth or otherwise meddle with the private marketplace,” and juxtaposing this with a second critique, according to which “the Lochner era is best understood not as a politically motivated binge of judicial activism, but rather as a sincere and principled, if sometimes anachronistic effort” to distinguish valid economic legislation and invalid “class” legislation).

[162]. Browning-Ferris Indus. of Cal., Inc., 362 N.L.R.B. No. 186 (2015).

[163]. Cotter v. Lyft, Inc., 60 F. Supp. 3d 1067 (N.D. Cal. 2015).

[164]. Scholars who might subscribe to the label “New Legal Realist” employ a variety of approaches. See, e.g., Bryant Garth & Elizabeth Mertz, Introduction: New Legal Realism at Ten Years and Beyond, 6 U.C. Irvine L. Rev. 121, 123 n.10 (2016) (describing a “big tent” New Legal Realism that extends beyond the quantitative and economics-oriented framework represented by Miles and Sunstein); Thomas J. Miles & Cass R. Sunstein, Introduction: The New Legal Realism, 75 U. Chi. L. Rev. 831, 831, 834 (2008) (describing the understanding of judicial personality using “testable” metrics as “[a] distinguishing feature of the New Legal Realism”).

[165]. Cotter, 60 F. Supp. 3d at 1081.

[166]. Id.

[167]. Id. See also id. at 1078–79 (listing various behavioral controls imposed by Lyft, like “not to talk on the phone with a passenger present”).

[168]. Id. at 1079.

[169]. See id. (observing that “Lyft reserves the right to ‘investigate’ and ‘terminate’ drivers who have ‘behaved in a way which could be regarded as inappropriate’” and that termination might result from declining or accepting and then declining “too many” ride requests).

[170]. Id. The “at-will” rule has interesting, shifting implications for the dual conceptions of freedom I describe here. At-will employment is characterized by uncertainty and potential power—formally enjoyed by both parties, but in practice mostly beneficial to the employer. When the at-will nature of a particular relationship is used to characterize it as one of employer-employee, the at-will rule is indexing a loss of freedom as non-domination. But when taken generally, the rule represents a valuation of freedom as non-interference: it is liberty-enabling because it eliminates all but the most minimal intrusions on an employee’s decision to work and an employer’s decision to offer work. On the practical effect of the at-will rule see, e.g., Jay M. Feinman, The Development of the Employment-at-Will Rule Revisited, 23 Ariz. St. L.J. 733, 736 (1991) (“Whatever its status as a formal presumption, Wood’s rule represented a signal to the courts to view skeptically employees’ evidence of contracts of long duration.”).

[171]. Whether they are “piecemeal” or “systemic,” the approaches I have in mind would focus both on (1) reducing the importance of the “employer”–worker binary as a funneling mechanism for safeguards and (2) searching for an analytic rubric other than control and freedom with which to funnel those safeguards. In terms of piecemeal reforms, we might continue to distance health and retirement benefits from worker classification in the vein of the Affordable Care Act and various “portable benefits” plans. See supra note 28 and accompanying text; Deepa Das Acevedo, Addressing the Retirement Crisis with Shadow 401(k)s, 92 Notre Dame L. Rev. Online 38, 41& nn. 16–17 (2016). Or, we might say that since Uber creates public risk when it facilitates transportation, it has to account for that risk to the public by providing auto insurance or personal liability coverage to individual drivers. That kind of rule would not require use to measure the amount of control in an “employer”–worker binary, but it would still use that binary to channel work-related safeguards.

[172]. Constructing a new analytic rubric for determining who gets work-related safeguards and obligations may not be an impossible task, but it is certainly a daunting one and outside the scope of this Article.

Transnational Labor Citizenship – Article by Jennifer Gordon

March 2007February 2018Prabhjyot Singh

From Volume 80, Number 3 (March 2007)
DOWNLOAD PDF

On the parched plaza outside the U.S. Consulate in Monterrey, Mexico, hundreds of men and women lean against tree trunks or press their backs into the consulate wall, seeking any sliver of shade. They wait to be fingerprinted, interviewed, and – with luck – approved as one of the 175,000 guest workers admitted to the United States each year. An ordinary day in May 2005 – or perhaps not quite. Under one tree, a meeting is underway. At the center of a circle stands a labor organizer, copy of a contract in hand. Asegúrense que sus derechos sean respetados, he urges the crowd, all of whom are bound for North Carolina. “Make sure that your rights are respected.” Another man, his crisp shirt and spotless jeans belying the previous sixteen hours spent on a bus from his hometown, stands up and offers advice to the others. Cuidado con el patrón en Ranch Farm. “Careful with the boss at Ranch Farm.” He continues: “He’s still trying to get away with piece rate when he’s supposed to be paying us by the hour. Call the union’s North Carolina office if it happens to you.” Others nod assent. After half an hour of sharing information and reestablishing bonds, the group disperses. Before the week’s end, they will be thinning tobacco plants in the hot Carolina fields. For the first time in history, guest workers are about to cross the border into the United States as union members.

Over one million new immigrants arrive in the United States each year. This spring, Americans saw several times that number pour into the streets, protesting proposed changes in U.S. immigration and guest work policies. As the signs they carried indicated, most migrants come to work, and it is in the workplace that the impact of large numbers of newcomers is most keenly felt. For those who see both the free movement of people and the preservation of decent working conditions as essential to social justice, this presents a seemingly unresolvable dilemma. In a situation of massive inequality among countries, to prevent people from moving in search of work is to curtail their chance to build a decent life for themselves and their families. But from the perspective of workers in the country that receives them, the more immigrants, the more competition, and the worse work becomes.

80_503

Equality in the Workplace: Why Family Leave Does Not Work – Note by Erin Gielow

September 2002February 2018Southern California Law Review Admin

From Volume 75, Number 6 (September 2002)
DOWNLOAD PDF

In 2001, more than thirty years after the passage of Title VII of the Civil Rights Act, women still have not achieved equality in the workplace. Many statistics emphasize the divide: Last year, 95% of all venture capital went to men; of the top 2,500 corporate executives in America, only sixty-three are women; only three Fortune 500 companies are headed by women; and Congress is 90% male.

While many factors undoubtedly contribute to this disparity, one factor in particular stands out: Women are more likely to take family leave after the birth or adoption of a child, and are far more likely to serve as the primary caregiver for children. The American Bar Association (“ABA”) commented in its 1998 study, Facts About Women and the Law, that, “in reality women bear the greater burden of balancing career and family.” The number of fathers staying home to raise children is relatively small, fluctuating between 2 and 5%.

Powerful societal assumptions about gender roles are still alive and well today. Men are presumed to be the family’s main source of income, and women the primary child care providers. Scholars agree: “Women shoulder the primary responsibility for family,” whereas “[t]raditional culture mandates insist that men act as the primary breadwinner of the family.”

1000314

Introduction

I. The Persistent Nature of Workplace Harassment

A. The Historical Origins of Harassment

B. The Current Landscape of Workplace Harassment

C. Harassment as a Workplace Hazard

II. Legal Constraints Fail to Provide Accountability

A. The Individuation of Harassment Evidence

B. Mandatory Arbitration Provisions

C. Coverage Gaps Constrain Workers’ Access to Courts

D. Retaliation Law and Its Effect on Underreporting

E. Rigid Administrative Exhaustion Requirements Block Access to Justice

F. Severe or Pervasive Requirement Excludes Strong Claims

G. The “Objectively” Hostile or Abusive Standard is Out of Touch

H. The Standard for Vicarious Liability

I. Damage Caps Fail to Remedy Harms

J. Implied Hierarchy of Harassment Claims

III. An Empirical Analysis of State and Federal Gender Equity Legislative Activity, 2016–2022

A. Methodology

B. Volume of Gender Equity Legislation Post #MeToo

Federal Reforms

State Reforms

i. General Trends

C. Political Trends in Gender Equity Legislation Post #MeToo

Political Party

Representation of Women Lawmakers

D. Topical Analysis of Gender Equity Legislation Post #MeToo

IV. Discussion & Implications

A. Did States Fill Any Gaps?

B. Legal Gaps in Need of Greater Attention

Symbolic Action and Individuation of Harassment Continues, and Even Worsens?

Greater Focus on Intersectional Harms

Navigating an Employer-Friendly Judiciary

Dealing with Retaliation is Required for Reforms to Work

Conclusion

Appendix A. Search Terms Used to Identify #MeToo Related Legislation

Appendix B. Search Terms Used on Bill Corpus to Verify Topic Coding

98 S. Cal. L. Rev. 761

Introduction

I.A Historic Influx of Unaccompanied Children

II.The Legal Foundation Underpinning ORR’s Apprehension, Custody, and placement of Unaccompanied Children

A.The Flores Settlement Agreement of 1997

B.The Homeland Security Act of 2002

C.The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

D.ORR’s Role in Child Custody and Placement

III. Labor Law’s Role in protecting Unaccompanied Children

A. The Fair Labor Standards Act of 1938 and Related Child Labor Policies

B. Varying State Child Labor Laws

C. Anti-Trafficking Laws Protecting Unaccompanied Children

IV. ISSUES WITH and possible solutions for ORR’s PLACEMENT OF UNACCOMPANIED MINORS AND Federal enforcement of Child LABOR LAWs

A.Issues with ORR’s Custody, Placement, and Post-Release Supervision of Unaccompanied Minors

1.Proper Vetting of Sponsors Versus Speed of Release

2.Keeping Track of Migrant Children Paroled into Sponsor Homes

3.Implementing Reporting Requirements for Sponsors

4.Enforcement Mechanism Needed

B. Inadequacies in FLSA Penalties and DOL Enforcement Capabilities

1.DOL’s Chronic Underfunding Increases the Risk that Unaccompanied Minors Go Unnoticed by Federal Investigators

2. Current FLSA Penalties Are Inadequate to Deter Bad Actors from Committing Child Labor Law Violations

C. Summary of Solutions

CONCLUSION

98 S. Cal. L. Rev. 761

Introduction

I. Deputization

A. What Is Deputization?

B. Who Would Deputize?

1. California Bureau of Field Enforcement

C. Who Would Be Deputized?

II. Deputization to Perform Outreach

III. Deputization to Investigate

A. The Municipal Nondelegation Doctrine

Legislative Actions

Municipal Actions

Private Parties

Standard for Delegation

Conclusion

98 S. Cal. L. Rev. 725

INTRODUCTION

I. HISTORY OF THE ENTERTAINMENT INDUSTRY

A. The Economics of the 1930s Studio System

B. Modern Talent Contracts

1. Film

From Volume 91, Number 5 (July 2018)
DOWNLOAD PDF

From Volume 80, Number 3 (March 2007)
DOWNLOAD PDF

From Volume 75, Number 6 (September 2002)
DOWNLOAD PDF