Employee Status Preconditions: A Critical Assessment


Pnina Alon-Shenker
Guy Davidov


Date added: 

Tuesday, January 23, 2024


Much has been written about the legal tests that exclude independent contractors from employment and labor law coverage. Less attention has been devoted to courts’ use of classification processes that invoke some preliminary requirements (i.e. preconditions for employee status) and result in the exclusion of various categories of workers from potential coverage. Those workers include volunteers, prisoners, persons with disabilities, interns, trainees and apprentices, business owners, corporate directors and officeholders. This Article brings these preconditions together into a coherent framework by critically examining their different variations in the U.S. as well as the UK, Canada, and the EU. Further, this Article proposes a narrower set of preconditions which will better advance the purpose of employment and labor laws and increase consistency and predictability in its application. The three proposed preconditions are: (1) performing work or providing services that benefit an employer (regardless of whether there is also a personal benefit for the worker) unless such benefits are negligible; (2) the work should be remunerated (regardless of whether wages are paid in practice or have been promised or not); and (3) the work is substantially performed personally.