Abstract
This Note does not take a stance on the issue of whether rideshare drivers should be classified as “employees” under either employment statutes or the doctrine of respondeat superior. It argues, rather, that if the protection of employment statutes is to be extended to rideshare drivers, this should be done by Congress’s creation of new worker categories in the statutes, rather than by squeezing rideshare drivers into the existing “employee” category. The use of the same binary distinction between employee and independent contractor in both employment statutes and respondeat-superior cases is a practice which should ultimately be abandoned, and recognizing a new statutory category is a commendable first step toward this aim. The creation of a third category is not a new proposal. Others have argued in favor of this, highlighting the difficulties courts face in applying outmoded multifactor tests for “employee” status to novel types of work (such as driving for rideshare companies). Concerned about the lack of protections currently available to economically vulnerable rideshare drivers, these scholars argue that the existing binary division between employees and independent contractors doesn’t account for the realities of the modern workforce—that it is a “vestige of the early law of ‘masters’ and ‘servants’ that is as archaic as the words suggest.” Rideshare companies are able to take economic advantage of their drivers, and therefore the law should be amended to prevent this.
Avoiding the economic question, this Note identifies a different danger posed by use of the same binary distinction in both contexts. Because the terms used to define the coverage of employment statutes are the same as those used to delineate the applicability of respondeat superior, courts regularly view caselaw interpreting employment statutes as being directly on point in respondeat-superior cases, and vice versa. But this practice overlooks a theoretical difficulty: even if justice demands that rideshare drivers receive certain statutory protections, this does not necessarily mean that justice also demands that third parties injured by such drivers should have a right of recovery against the rideshare company. The word “employee” means very different things in the employment-statute and respondeat-superior contexts. In the former case, “employee” is the label ascribed to a category of workers who, for various policy reasons, are deemed to possess certain statutory rights. In the latter case, however, saying that a worker is an “employee” means that, in the interest of justice, the employer should be held liable to the injured third party, notwithstanding the fact that the employer did not directly cause the injury. Rather than defining the rights of the worker, this latter use of the term defines the rights of a third party. Thus, although distinct policy considerations are in play in each of the two contexts, the current practice of drawing from a single body of precedent for both types of cases obscures these policy differences.
The advent of the rideshare industry gives the law an opportunity to begin to separate questions of employment-statute coverage from those of vicarious liability. By creating a new category of worker which can encompass rideshare drivers, Congress would put the courts in a position where they would be able to begin to separate employment-statute caselaw from respondeat-superior caselaw—this would allow the respective policy considerations to be viewed in isolation. Part I traces the history of employment statutes in the common-law tradition, highlighting the fact that earlier employment statutes recognized a range of worker categories broader than the binary distinction between employee and independent contractor which is common today. Part I also traces how the distinction between employee and independent contractor eventually migrated from agency law to twentieth-century American-employment statutes. Part II illustrates the danger posed by failing to create a third statutory category to account for rideshare drivers. Finally, Part III shows how creating a third category can obviate this danger.
Recommended Citation
Nathaniel Reyes,
A Third Category for Rideshare Drivers: Untying Employment Statutes from Agency Law,
98
Notre Dame L. Rev.
1823
(2023).
Available at:
https://scholarship.law.nd.edu/ndlr/vol98/iss4/14