To state the obvious, continued contraction of employee status in the national economy diminishes in importance all domains of employment law. Why would anyone need workers' compensation if we did not have statutory employees? The glib response to this concern is that the Gig economy is not nearly so expansive as "alarmists" contend. But if you take a minute to see what a nightmare data collection on "contingent" employees has been, you would be forgiven for doubting the doubters. In a nutshell, workers responding to BLS survey questions don't even know what they're being asked. And just as has been the case over the last year in the context of pandemic related unemployment estimates, official numbers have obscured the scope of the contingent workplace in the United States. Back in 2015, for example, the Government Accounting Office estimated the contingent workforce at a much higher figure (than those suggested by BLS figures) of 35.3 percent of employed workers in 2006 and 40.4 percent in 2010. Does anyone think the Gig economy has become smaller since 2010? Then of course there is the very fact that during the pandemic it was deemed necessary to create an entire unemployment fund substantial dedicated to compensating the unemployment claims of Gig workers — you know, the part of the economy that is claimed to be smaller than what our eyes and experiences reveal anecdotally.
Well, people "on the ground with workers" know what is happening and I'll devote the remainder of this post to a letter written by some such folks. They are writing predominantly from a federal law perspective but the points apply with equal force to workers excluded from state workers' compensation laws. You can read it below the fold: