Misclassified Workers and Antitrust Federalism: Local Pathways to Unionization



Federal antitrust law currently constrains organizing efforts among workers misclassified as independent contractors—an increasingly large share of the low-wage workforce. While advocates and scholars have called on federal and state governments to intervene, this Article examines an additional means for addressing the problem: the state action doctrine of federal antitrust law gives municipalities a way to let such workers unionize. Yet, as shown by the Ninth Circuit’s recent decision blocking Seattle’s attempt to authorize Uber and Lyft driver unionization, the doctrine currently treats states and municipalities differently in ways that can limit municipalities’ interventions. This Article explains why this differential treatment is fundamentally unjustified and why courts should resolve an ambiguity in the doctrine in favor of municipalities’ authority to let misclassified workers unionize.

Many commentators have criticized the state action doctrine’s differential treatment of municipalities and states in other contexts. This Article builds on that scholarship in two ways. First, although commentators have noted that the doctrine usurps states’ role in policing municipal lawmaking, those commentators have not given thorough accounts of why federal courts can trust state legislatures and state courts to adequately police the concerns motivating the doctrine’s differential treatment of municipalities. This Article gives such an account.

Second, this Article explains why Supreme Court decisions that postdate the seminal commentary criticizing the doctrine’s differential treatment of municipalities strengthen the argument that such treatment is unjustified. These decisions include the Court’s rulings on anticommandeering and on states’ ability to structure their internal governance. They also include the Court’s recent state action doctrine decision. The first two sets of decisions highlight how state action doctrine’s differential treatment of municipalities is in tension with the Court’s federalism jurisprudence, while the latter decision shows how state action doctrine’s own logic counsels against one limit on municipal authority that some lower courts have required.

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From the 2016 Symposium: Dishwashers, Domestic Workers, and Day Laborers: Can Alternative Organizing Revive the Labor Movement? Panel II: Friend or Foe: Labor Law and Non-Union Workers March 25, 2016 Wilma B. Liebman[1]             Is the Depression-era National Labor Relations