Abstract
Black workers’ fortunes in the coming decades are tied to the expansion of the Gig economy, the impact of which is to destroy employee status. Because much antiracism law and policy has been transmitted to society through the medium of employment law, the disappearance of employee status should be of concern to all foes of racism. This short essay argues that Section 1981 of the Civil Rights Act of 1866 should be expanded to cover all forms of racist workplace conduct. Regulatory arbitrage will continue to challenge the definition of employment for the foreseeable future. It is fitting that one of the great antiracist laws in the history of the United States be modified to cut through the haze, ensuring that Black workers have remedies for racist workplace conduct, however the workplace may be fortuitously or strategically defined, now or in the future. Acceptable, but not quite as good, alternatives to expanding Section 1981 are to explicitly cover independent contractors with existing antiracist employment law (such as Title VII of the Civil Rights Act of 1964); or to embrace the “ABC” employment test, which makes it much more difficult for employers to inappropriately classify employees (entitled to the protections of antiracist and other employment laws) as independent contractors (who are not entitled to those protections).
Keywords: Gig economy, Title VII, Antiracism, employee status, Proposition 22, independent contractor
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