The Enduring Ambiguities of Antitrust Liability for Worker Collective Action

This Article examines the regulation, by antitrust law, of collective action by low-wage workers who are classified as independent contractors, and who therefore presumptively do not receive the benefit of the labor exemption from antitrust law. Such workers find themselves in the position of most workers prior to the New Deal: at once lacking labor protections, yet exposed to antitrust liability for organizing to improve their conditions. I argue that this default rule is the legacy of a problematic history that is taken for granted by the contemporary antitrust framework. In Part I, I show that the threat of antitrust liability is a powerful constraint upon contemporary independent contractor workers’ own ability to take action to address their working conditions. In Part II, I trace the application of antitrust liability to worker collective action to the time before the labor exemption, arguing that pre-New Deal courts imported fundamentally hierarchical and coercive tenets from the common-law tradition into the fledgling antitrust law in order to apply it to contain worker organizing, thereby creating tensions with their own freedom of contract principles. In Part III, I show how the legal framework of the labor exemption reinforced the underlying assumption that antitrust regulates worker collective action, even as it immunized most workers from such liability (so long as they continued to be considered employees). In Part IV, I argue that the modern framework for antitrust does not compel the continued application of this default rule, and indeed supplies materials for a fresh, more balanced reconsideration of it. Ultimately, the situation of these workers is a test of what antitrust fundamentally says about labor, absent a specific exemption. Because that exemption is currently rooted in the New Deal network of labor regulation, antitrust’s treatment of labor becomes a baseline for critical conversations about how to reform our current framework of labor regulation—in the same way that it was the baseline for those conversations prior to the New Deal itself. In particular, antitrust functions as an outer limit for any such reform, and also for specific policy proposals to address the increasing prevalence of working relationships outside the bounds of employment