The Antitrust Division and the Potential Implications of a Labor Ruling for Gig Worker Organizing: A Look at the Atlanta Opera Amicus Brief

The Antitrust Division of the Department of Justice’s amicus brief in an appeal before the National Labor Relations Board (the “NLRB” or the “Board”) weighs in on a potential NLRB decision regarding who is an “employee” or an “independent contractor” under the National Labor Relations Act, a ruling that may have significant implications for the gig economy. Although the Antitrust Division did not take a position on the criteria that should be applied to determine if a worker is an employee or an independent contractor, the brief reflects that the Division considered a broader definition of an “employee” to generally be pro-competitive. This article examines the implications of the Division’s arguments regarding the reach of federal antitrust law with respect to worker organizing, the impact of alleged misclassification on competition, actions that might be brought against workers or companies, and the potential need for “modernization.” Looking forward, the article considers how the Division may proceed with respect to the gig economy.

By Elspeth Hansen^[1]

The Antitrust Division of the Department of Justice weighed in on a National Labor Relations Board (the “NLRB” or the “Board”) appeal that may have significant implications for “gig economy” workers, as the NLRB considers changing its approach to determining which workers are entitled to collectively organize under federal labor law. ^[2] In its February 10, 2022 amicus b