Independent-contractor workers—those who provide principally their labor services without significant capital investment—can form unions and insist on bargaining with the companies using their services (“platform” or “user” companies) without violating federal (or state) antitrust laws. Irrespective of whether they are properly classified as independent contractors under federal or state labor and employment law, these providers of personal services remain engaged in “labor” within the shelter of the so-called “statutory” labor exemption or immunity from the antitrust laws, derived from the 1914 Clayton and 1932 Norris-LaGuardia Acts. Employer classification of workers as “independent contractors” is irrelevant to the labor-antitrust inquiry, as long as the workers in question are providing principally their own personal services without significant capital investment typically associated with the running of a business. Such business investment does not include provision of a car or a hammer or saw—equipment fungible for personal use as well. Our position is supported by a close textual analysis of the Acts and contemporaneous usage, is bolstered by the Supreme Court’s 2019 interpretation of the Federal Arbitration Act in New Prime Inc. v. Oliveira, and is consistent with the Court’s decisions concerning the scope of the labor-antitrust exemption. The relevant statutory language, understood in light of the meaning of “labor” and “employment” at the time the Acts were passed, does not distinguish between employees and independent contractors, and the factors that inform whether service providers are statutory employees do not generally bear on whether the antitrust exemption applies. In addition, if the contractors are not statutory employees under the National Labor Relations Act, as amended, federal labor law preemption principles (drawn from that statute and its amendments) are inapplicable to state and local laws that protect the workers from management discipline and establish a framework for collective dealing with platform or other user companies on the terms and conditions of the workers’ provision of services. Recognition of the antitrust immunity for independent-contractor workers would mark an important step forward in the economic freedom of these workers, without requiring any statutory change, to engage in collective action for their betterment.
