The Federal Trade Commission (FTC) issued a policy statement that says that independent contractors who engage in protected labor organizing and activity are exempt from antitrust liability. While employees engaging in protected labor activity has long been exempt from antitrust liability, the FTC’s recent statement extends the exemption to independent contractors. The FTC policy states:
The Commission believes that workers who provide labor services are not subject to antitrust liability when engaging in protected collective action—such as seeking better compensation and job conditions—even if the firm whose labor practices the workers seek to improve classifies (or misclassifies) them as independent contractors. This view is not only the best reading of the labor exemption’s text and history, but it is also sound policy. As the NorrisLaGuardia Act recognizes, workers must be free to organize and to bargain collectively as a counterbalance to the power of “owners of property . . . organize[d] in the corporate and other forms of ownership association.”76 That is no less true simply because a firm seeks to classify such workers as independent contractors; for example, many gig workers face significant power imbalances in securing adequate compensation and safe, secure working conditions.77
Reading the labor exemption as categorically excluding all independent contractors would give employers both the incentive and the opportunity to exploit such asymmetries. Under such a reading, firms could absolve themselves of responsibilities under employment and labor laws by classifying their workforce as independent contractors. Firms could also simultaneously wield antitrust law to prevent those same workers from organizing to attain the rights afforded to employees under such laws. Additionally, businesses would have an opportunity and incentive to classify (or misclassify) their workers as independent contractors to suppress wages and to gain an unfair advantage against competitors who provide better compensation and job conditions to workers.78 Just as Congress did nearly a century ago, the Commission emphasizes that the antitrust laws should not be used to disrupt collective action by workers who provide labor services to improve their terms and conditions of employment. Accordingly, the Commission will not challenge collective action by independent contractors who provide labor services and are seeking better compensation and job conditions because such activities are exempted under the Clayton Act and the Norris-LaGuardia Act.
