Employees, Independent Contractors, and the Law of Roman Slavery: The Inversion of Liberty in Modern Classification Debates
Alexander T. MacDonald*
What is liberty? The word has meant different things to different people at different times. In the classical tradition, it meant freedom from the arbitrary decision-making power of another person.1 That idea of liberty held sway from the time of Cicero2 to John Locke.3 But that idea began to erode by the late eighteenth century.4 As entrenched political regimes faced increasing pressure from revolutionary challengers—including in America—they reconceptualized liberty to be something narrower: freedom from physical restraint.5 And still later, they reimagined freedom as something still narrower. As the nineteenth century dawned, they began to see liberty not as something natural, inborn, or inalienable, but as whatever was not prohibited by a valid law.6 That is, freedom was what the state defined it to be.7 The definition, then, had come full circle: rather than freedom from arbitrary power, liberty was what that arbitrary power deigned to give.8
That inversion is nowhere clearer than in the modern debate over worker classification. The modern debate equates workplace liberty with statutory rights.9 It treats workers as free only when they are classified as “employees,” with access to statutory protections like minimum wages, social insurance, and the right to bargain collectively.10 Workers who lack those statutory protections—independent contractors—are grouped into a subordinate category.11 They are seen as vulnerable, unprotected, even exploited.12 Without statutory rights, they are subject to the perditions of the market.13 They are, in short, less free.14
But beneath that view lies a fundamental irony. While the modern view treats employed workers as free and independent ones as subordinate, those ideas were historically reversed. The predecessors of independent contractors—artisans, shopkeepers, small entrepreneurs—wore the mantel of free labor.15 And the predecessors of employees—servants, hirelings, and laborers—were considered less than free.16 These proto-employees had little say over their pay, less say over their working conditions, and no say about how to allocate the fruits of their labor.17 They were effectively economic appendages of their paymasters.18 And indeed, the legal structure governing their work was built on a foundation meant for workers even less free than them—Roman slaves.
That connection will surprise many readers. Yet it is nonetheless true: the bones of modern classification law are built on the fossils of Roman slave law.19 Like every classification regime that followed it, Roman slave law was premised on subordination: the slave was an extension of the dominus, or master, who could acquire both property and liabilities through his slaves.20 That paradigm gave birth to common-law master-servant law, which shed the master’s ownership of the worker but retained the master’s ownership of the worker’s labor.21 Still later, master-servant law evolved into more the commercially oriented law of agency.22 But even agency law hinged on the principal’s power to control the agent’s work.23 And when market-focused ideology receded in the late nineteenth century, agency law was supplemented and ultimately supplanted by formal employment statutes,24 including the NLRA25.
Throughout this evolution, classification law held on to its original assumptions about subordination. Subordinate workers were not fully autonomous people; they had no legal right to the product of their own labor.26 In the ancient world, their lack of power made them little more than legal extensions of their masters.27. And in more recent times, it has been used to justify additional regulation to protect them.28. But all along, it has presumed that they lack some basic element of freedom in their working lives.29. The new paradigm flips that presumption, seeing employee status as the true form of workplace freedom.30.
That inversion is more than just a historical irony. It also distorts the debate about worker classification in our own day. It allows proponents of stricter classification tests to describe independent work as a lesser workplace status.31 In effect, they can define independent work as the absence of employment rights.32 That framing is not only wrong; it gets the historical record backward.33 And it allows the proponents of laws like the PRO Act to relegate independent contractors to second-class status.34
Roman Slavery and the Genesis of Vicarious Obligations
Anyone interested in studying the labor law of ancient Rome will inevitably walk away disappointed, or even horrified. That’s because the ancient Romans had no labor law.35 Nor, truly, did they have a law of agency.36 Instead, they had a law of slavery.37
Slavery was a pervasive feature of Roman life.38 By some estimates, in the early first century, as much as forty percent of all workers in Roman Italy were slaves.39 Indeed, slavery was so pervasive that scholars find it difficult to talk about a true Roman labor “market.” 40 Markets imply freedom of movement; and slaves were defined by their unfreedom to move. 41 Slaves were not workers but property: they had no ability to change jobs, no power to acquire property, and no right to the fruits of their labor. 42 What they produced belonged to their master. 43 What they acquired was his by law. 44
That isn’t to say that the Romans had no markets at all.45 To the contrary, the Roman economy had more sophisticated markets than many civilizations that would come later.46 By the second century A.D., the Roman Empire stretched from Britain to Jerusalem, encompassing most of the Western world.47 It encompassed dozens of nations and put them under common governance.48 And without national walls to slow down trade, commerce flourished.49 While wealth flowed to the capital in the form of tribute,50 much also flowed to the provinces through stable lines of trade.51 Peace also paid its dividends, freeing resources that might otherwise have been devoted to defense for more productive uses.52 So in some ways, the Roman Empire was more welcoming to markets than any civilization then known to history.
With such a great potential for commerce over such a vast stretch of territory, one might have expected the Romans to develop a sophisticated law of agency. Agency, after all, allows people to deal with one another through intermediaries over long distances.53 But in fact, the Romans never developed true agency law—in part because they didn’t have to.54 Instead, they used the tool most readily available: their enormous pool of slave labor.55
Because slaves were legal nonentities, they could not make deals in their own right.56 Instead, many contracts a slave made were considered contracts with the slave’s master.57 Likewise, wrongs committed by a slave could be treated as if committed by the master himself. 58 That dynamic made slaves uniquely useful trade agents.59 A master could dispatch a slave to manage one of his ships.60 The ship could then sail to far-flung ports and dispose of its cargo.61 Any profits reaped by the enterprise automatically belonged to the master.62 The same was true for a tavern, a workshop, or any other commercial enterprise.63 Though Roman contract law was intensely personal,64 the master didn’t need to be personally involved. He could still contract with third parties because the slave—an extension of his person—could do the dirty work for him.65
Though convenient for Roman masters, this system had pernicious social effects. Beyond the social tragedy of slavery itself, it also cast a pall over commercial work.66 Trade and commerce came to be seen as things that free men didn’t do.67 Indeed, it was a rule for centuries that no free man could acquire obligations through another free person.68 There were exceptions, of course, the most important being acquisition through members of a man’s own household—people who were also seen as having no independent legal status.69 But by and large, trading on behalf of another person was not something a free man did.70 The Roman form of proto-agency was the work of unfree people.71
Status and Ownership in Master-Servant Law
After the Empire’s fall, slavery played an increasingly smaller role in commercial life. Though it never quite disappeared, it took a back seat to other forms of labor.72 So, by the time William Blackstone wrote his magisterial treatise, Commentaries on the Laws of England, he could say that “pure and proper slavery does not, nay cannot, subsist in England.”73 But that didn’t mean slave law had left no marks on the common law. Rather, the fundamentals of slave law continued to reverberate through the law in Blackstone’s day—most obviously in the law of master and servant.74
The traces of Roman slave law show through in Blackstone’s structure. Blackstone divided personal relationships into three main categories: husband and wife, parent and child, and master and servant.75 In each of these groups, one party was dominant: the husband, the parent, and the master.76 The other party was subordinate: the wife, the child, and the servant.77 This same division had appeared in Justinian’s Institutes, and before that, in the Institutes of Gaius.78 The main difference was a change of three letters. Where Blackstone used the word “servant,” Justinian and Gaius had used “servus.”79 And of course, servus means “slave.”80
As described by Blackstone, the servant occupied a position in English common law much like his slave forebears.81 He owed a strict duty of loyalty and obedience to his master, on whom he depended for his upkeep.82 He also had little choice over whom his master was: he typically served a fixed term and could be compelled to finish it on pain of imprisonment.83 Nor did he have much say over his compensation. While he was, unlike a slave, paid for his work, he could not demand higher pay: wages were set by justices of the peace, and asking for more was a crime.84
Master-servant law also carried forward Rome’s rules of vicarious obligation.85 Because the servant was part of the master’s household, anything he did was the master’s responsibility.86 He could, of course, make contracts in the master’s name and at the master’s direction.87 But he could also commit torts.88 For example, he might serve bad wine to the master’s customers, or run over a bystander with the master’s horse.89 In either case, the resulting harm was the master’s responsibility.90
But not every transaction carried this kind of vicarious responsibility. Like Roman law, master-servant law recognized that truly independent people could not bind one another (at least, not without consent).91 So, a person might hire a stagecoach to carry goods from one town to another without necessarily being liable for every mistake committed along the way.92 The question was whether the stagecoach driver was a servant, and if so, whether the mistake was in the scope of his servitude.93
This same distinction carried into the common law of agency.94 As the common law spread through Britain’s imperial colonies, so did its ideas about vicarious liability.95 In American colonies, judges and lawyers continued to tie vicarious liability to the scope of a servant’s duties.96 Over time, however, the old doctrine’s nomenclature came to chafe on American ears.97 Calling people “masters” and “servants” offended the New World’s budding republican sensibilities.98 So, increasingly, master-servant law was wrapped in the more egalitarian vocabulary of “agency.”99
Of course, American agency law didn’t differ only in its terminology. It also grounded its rules in different rationales.100 Like Roman slave law, English master-servant law had been premised on status: servants owed duties to masters (and vice versa) because of their respective places in the legal hierarchy.101 But agency law framed the issue instead as a matter of contract.102 An agent didn’t act on a principal’s behalf because of any fundamental status or duty.103 Instead, the agent acted on the principal’s behalf because he had agreed to do so.104 When that agreement ended, so did his duty.105 The right to his labor reverted to him.106 His relationship with his principal was bounded by a contract; nothing more, nothing less.107
While that approach sounds egalitarian in theory, it ultimately failed to satisfy the demands of an evolving economy.108 As the nineteenth century wore on, the American economy increasingly industrialized.109 People moved from farms into cities, shedding agricultural and craft work for industrial production.110 That change transformed working life in many ways, including by separating production from ownership.111 While workers once predominantly owned the tools of their trade, they increasingly worked with machines owned by others.112 In the eyes of some, that division of labor and capital left workers vulnerable and open to exploitation.113 Masters no longer owed a duty of care or upkeep; they could instead limit their liability to the extent of an arm’s length agreement.114 The market may have sounded fairer in theory; but in practice, it left workers with fewer legal protections.115
That tension would prove unsustainable. Though the law of agency spoke of work relationships in terms more suitable to Republican audiences, it put workers in a position no less subordinate than had the old master-servant law.116 Workers were still subject to the whim and control of a dominus—this time, a corporate one.117Erecting the Edifice of Employment Law
Thus was born employment law. Reacting to the changing economy, federal and state legislators intervened at an unprecedented pace.118 They passed laws to regulate whole fields of economic life that had once been left to private agreement.119 Those fields included transportation, agriculture, competition, and yes, labor.120 At the state level, legislators passed unprecedented workplace laws, including minimum-wage, maximum-hour, and workplace-injury laws.121 And at the federal level, lawmakers adopted such monumental statutes as the National Industrial Recovery Act,122 the Fair Labor Standards Act (FLSA),123 the Social Security Act (SSA),124 and the NLRA.125 These laws adopted a range of regulatory protections for vulnerable and dependent industrial workers.126 And uniformly, they extended those protections not to independent businesspeople, but to “employees.”127
In its haste, however, Congress largely failed to thoroughly define its terms. Though many of these laws offered a definition of “employee,” the definitions were largely elliptical, even circular.128 To take one example, the FLSA defined “employee” as “any individual employed by an employer.”129 The NLRA was mildly more descriptive, but only in its exclusions: it carved out agricultural and public workers, but said little about the covered mass of “employees.”130
One might think that Congress didn’t bother with definitions because it didn’t need to. After all, it was working against a centuries-old backdrop of agency and master-servant law.131 Whatever else might be said of those bodies of law, they had developed well-worn tests for distinguishing between dependent and independent workers.132
Yet that was not the initial view of the Supreme Court. In a series of decisions in the 1940s, the Supreme Court rejected the common-law approach.133 It reasoned that by passing remedial social legislation, Congress had meant to extend statutory protections to more than just workers who might have qualified as common-law servants.134 These statutes weren’t just the master-servant doctrine in new clothes; they were broad social reforms aimed at rebalancing the national workplace.135 They were meant to be transformative, and the Supreme Court interpreted them as such.136
But evidently, the Court misunderstood its assignment. Congress reacted to the Court’s decisions by amending the SSA and the NLRA to exclude independent contractors.137 And while it took no action on the FLSA,138 its basic message was clear. When Congress used the word “employee,” it was referring to common-law servants.139 That is, it meant to reach workers who had been treated as subordinate under the old laws.140 Subordinate workers were to receive the new statutory protections.141 And independent workers, who had always been their own masters, were left untouched.142
Regulatory Rights and Inverted Freedom
That divide has persisted to the modern day. Under most state and federal employment laws, the rules apply only to employees.143 Independent contractors are left on their own.144 Of course, the historical reason for excluding contractors was their autonomy: they were considered independent economic actors with full control over their own labor.145 By contrast, servants, agents, and later employees depended on their employers. They relied on their employers for their livelihood, sometimes even for their daily sustenance.146 They also owed certain legal duties to their employers, such as the duty of loyalty or the duty to obey.147 As a result, they needed more protection.148 The law recognized both their subordination and their vulnerability.149
But now, that historical division has been increasingly obscured by a focus on regulatory “rights.”150 Modern employment law is neither status based, like its ancient predecessors, nor contract based, like nineteenth-century agency law.151 It is instead the product of deliberate regulatory intervention.152 State and federal regulators increasingly dictate the terms of working relationships.153 They regulate everything from minimum wage and overtime to the minimum amount an employer must spend on healthcare.154 Employment benefits have become their own byzantine practice area.155 The law has become studded with fixed rules and minimum “rights.”156 And those rights are increasingly described not as protections for vulnerable, dependent workers, but as the positive entitlement of every working American.157
That inversion has come full circle in debates over the “ABC” test. As regulators have come to see employment laws as an entitlement, they have tried increasingly to move workers into employee status.158 One way they’ve done that is by changing the legal test.159 Multiple states have abandoned the common-law agency test in favor of a three-part presumption (hence, “ABC”) that treats workers as employees unless each part is met.160 The test is openly designed to reclassify independent contractors as employees.161 The goal, it seems, is no longer to help workers in subordinate relationships with statutory protections.162 The goal instead is to extend those protections to all workers.163 The protections have become the ends rather than the means: they define what it means for a modern worker to be free.164
Whether or not that change is normatively good, it is historically ironic. Subordinate work was once seen as undesirable—the absence of real freedom.165 After all, its historical ancestor was Roman slavery.166 But today, subordinate workers are seen as enjoying true workplace freedom. And it is the independent worker who is seen as unfree.
*Alex MacDonald is a shareholder in the Washington, DC offices of Littler Mendelson, PC, and co-chair of the firm's Workplace Policy Institute. He is a graduate of the William & Mary School of Law (2012).
1Quentin Skinner, Liberty as Independence: The Making and Unmaking of a Political Ideal 1 (2025) (describing the concept of liberty as it was understood leading up to the late eighteenth century as “independence”).
2See id. at 17 (explaining that the view of liberty as freedom from being subject to another’s will is rooted in classical Roman works);Marcus Tullius Cicero, Paradoxa Stoicorum (1465), reprinted in2 Cicero de Oratore in Two Volumes Book III Together With De Fato; Paradoxa Stoicorum De Partitione Oratoria 254, 284–87 (H. Rackham trans., 1960) (describing freedom as the “power to live as you will” and slavery as the “obedience of a[n] . . . abject spirit that has no volition of its own”).
3See Skinner, supra note 1, at 52 (explaining that Locke shared the “classical view” of liberty); cf. John Locke, Second Treatise of Government § 17 (1690), reprinted in Piers Norris Turner, Public Reason in Political Philosophy 108, 113 (2018) (describing total subjection to another’s power as against man’s natural right of freedom).
4SeeSkinner, supra note 1, at 190, 271.
5 See id. at 1–2.
6 See id. at 174–75 (describing how those who opposed the American Revolution adopted a narrowed conception of liberty which took a position of “ideological dominance” by the 1790s).
7 See id.
8 See id.; cf. id. at 183 (“The only liberty we can hope to enjoy is civil liberty, the liberty of subjects.”).
9See, e.g., The NLRA, Employee Misclassification and the PRO Act, AFL-CIO (Apr. 1, 2021), https://aflcio.org/card-stacks/pro-act-and-abc-test (on file with the Regent University Law Review) (indicating that the bill would prevent employers from misclassifying workers as independent contractors, protecting their liberty only on the basis of applicable statutes); see also William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age 1985 Wis. L. Rev. 767, 768–69, 807–10 (explaining that, leading up to the twentieth century, labor leaders advocated for collective action and legislative reform to combat conditions they described as “wage slavery”); Herbert Hovenkamp, The Opening of American Law: Neoclassical Legal Thought,1870–1970, at 270 (2015) (describing how a New Deal conception of “free labor” undergirded the labor policy allowing states to promulgate right-to-work laws).
10See, e.g., National Labor Relations Act, 29 U.S.C. § 151 (equating freedom of contract with right to bargain collectively provided by statute); Educ. & Workforce Comm. Democrats, Protecting the Right to Organize Act: Fact Sheet (2025), https://democrats-edworkforce.house.gov/imo/media/doc/protecting_the_right_to_organize_act_of_2025_fact_sheet.pdf (on file with the Regent University Law Review) (arguing that the bill “prevents employers from misclassifying their employees” and sets “the right to collectively bargain” with the companies in control of the employment terms).
11 See, e.g., Jennifer Sherer & Margaret Poydock, Flexible Work Without Exploitation 1 (2023),https://files.epi.org/uploads/Flexible-work-without-exploitation-1.pdf (on file with the Regent University Law Review) (arguing that classifying workers as independent contractors is equivalent to “denying workers fundamental rights and protections”); N.J. Dep't of Lab. & Workforce Dev., State of N.J., Report of Gov. Murphy's Task Force on Employee Misclassification 1 (2019), https://www.nj.gov/labor/assets/PDFs/Misclassification%20Report%202019.pdf (on file with the Regent University Law Review) (explaining that misclassification “deprives workers of a suite of rights guaranteed to employers, but not independent contractors”).
12SeeMd. Dep't of Lab., Joint Enforcement Task Force on Workplace Fraud: 2024 Annual Report 5, 14–15 (2024), https://www.labor.maryland.gov/workplacefraudtaskforce/wpftfannrep2024.pdf (on file with the Regent University Law Review).
13See Sec’y of Lab., U.S. Dep’t of Lab. v. Lauritzen, 835 F.2d 1529, 1544–45 (7th Cir. 1987) (Easterbrook, J., concurring) (observing that FLSA was premised on desirability of overriding private employment contracts on the theory that some otherwise voluntary agreements were bad for employees, because without that statutory protection, employees would bear the risk of the changing market).
14 See, e.g., 78 Cong. Rec. 3679 (1934) (printing an address by Senator Robert Wagner, principal author of the NLRA, in which he argued that statutory bargaining rights were necessary for “equality of freedom,” and that absence of such rights was equivalent to “slavery by contract”); Stuart J. Schwab, The Union as Broker of Employment Rights, in Research Handbook on the Economics of Labor and Employment Law 248, 256 (Cynthia L. Estlund & Michael L. Wachter eds., 2012) (indicating that the NLRA was created in part to strengthen workers’ bargaining power because, on the individual level, they would be pressured to give up freedom of contract if they did not have further statutory protections); see also Forbath, supra note 9, at 768–69 (explaining that the statutory-based labor approach is contrary to the market-based approach, and that they believed statutory reform was the way to vindicate workers’ liberty in labor).
15 See Forbath, supra note 9, at 776–77.
16 See id. at 775–76.
17 See Evelyn Atkinson, Out of the Household: Master-Servant Relations and the Employer Liability Law, 25 Yale J.L. & Humans. 205, 207 (2013) (describing restrictions in English law stemming from the Statute of Laborers (1349) and the Statute of Artificers (1563)); Lea VanderVelde, Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment’s Labor Vision Immediately After Its Enactment, 27 Wm. & Mary Bill Rts. J. 1079, 1079 (2019) (describing pre-Civil War master-servant doctrine as “a system of subordination” principles made “to command and capture” workers’ labor).
18 See VanderVelde, supra note 17, at 1095–96 (“The structure of master-servant law was premised upon a framework of inherently property-like rights that masters held in the services of their employees.”).
19See Mitchell H. Rubinstein, Employees, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland Between an Employer-and-Employee Relationship, 14 U. Pa. Bus. L. 605, 615 (2012) (“[T]he distinction between employee and independent contractor . . . dates back to Roman law.”); Jonathan Burnett, Comment, Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v. Boylan Nominees, 29 Sydney L. Rev. 163, 172–73 (2007) (explaining that the rule allowing employers to be held liable for employees originated in part from Roman master-slave relations).
20 See J. Inst. 1.8.1 (Peter Birks & Grant McLeod trans., 1987) (providing that masters had the power of life and death over their slaves and had rights over whatever property their slaves obtained); G. Inst. 1.52 (W.M. Gordon & O.F. Robinson trans., 2015) (“Slaves are in the power of their owners.”); Rules of Ulpian XIX.17–18 (J.T. Abdy & Bryan Walker trans., 1876) (explaining that, when a person holds another under his potestas or mancipium, that is, his power, the property gained by the one so subject belongs to the one in power); W.W. Buckland & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline 26–28 (2d ed. 2008) (describing how slaves stood in for masters as agents to acquire property and that, under Roman slave law, masters could be liable on their slaves’ contracts); Barry Nicholas, An Introduction to Roman Law 69 (1976) (explaining that Roman slaves had essentially no legal existence except as objects of their masters’ rights).
21See 1 William Blackstone, Commentaries *431 & n.m (St. George Tucker ed., 1803) (drawing on Roman law for principles undergirding master-servant doctrine, the precursor to agency law); 2 James Kent, Commentaries on American Law 209 & n.b, 201, 211 & nn.a, d (O. Halsted 1827) (drawing on English common law with Blackstone as a chief source for the American law of master and servant, and emphasizing the contractual nature of their relationship rather than complete personal ownership). See generally VanderVelde, supra note 17, at 1095 (explaining that the common-law master-servant law rested on the structure prevalent in Blackstone’s Commentaries).
22 See Joseph Story, Commentaries on the Law of Agency as a Branch of Commercial and Maritime Jurisprudence with Occasional Illustrations from the Civil and Foreign Law 597 (3d ed. 1846) (drawing on Roman law relating to masters and servants for principals underlying American agency law); Timothy Walker, Introduction to American Law 241–42 (2d ed. 1846) (relating the legal relationship between master and servant to the increasingly more prominent one between an employer and an employee and describing agents as a class of servants); cf. David Cabrelli, Employment Law: A Very Short Introduction 8 (2022) (describing evolution of employment philosophy from status-based, master-servant doctrine to contract-based doctrine in nineteenth century).
23See Restatement (Second) of Agency § 220(1) (A.L.I. 1958) (“A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.”).
24 Cf. Edward L. Glaeser & Andrei Shleifer, The Rise of the Regulatory State, 41 J. Econ. Lit. 401–02, 404, 407 (2003) (describing the late-nineteenth-century legal shift from a market-based system to a regulatory system); Douglas Hay & Paul Craven, Master and Servant in England and the Empire: A Comparative Study, 31 Labour/Le Travail 175, 175, 177–80 (1993) (describing how the law of master and servant was preserved and incorporated into modern statutory employment law); Mary Clare Gartland, Note, Independent Contractors and Qualifying Corporate Pension Plans Under the Employee Retirement Income Security Act After Vizcaino v. Microsoft, 49 Cath. U.L. Rev. 505, 508 (2000) (“Common-law agency principles influenced many statutes intended to regulate . . . modern employment relationships.”).
25National Labor Relations Act, Pub. L. No. 74-198, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151–169).
26 See VanderVelde, supra note 17, at 1079–80, 1095–96 (highlighting that master-servant law continues to inform both modern employment law and the imbalance of property rights in labor between servants and masters); id. at 1096 (“What is the difference between owning a man and owning his services if his services occupy a considerable extent of his life?”).
27 See G. Inst. 1.52; Nicholas, supra note 20.
28 See, e.g., Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316 (1965) (observing that one of the purposes of the NLRA was to “redress the perceived imbalance of economic power between labor and management”); Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1175–76 (7th Cir. 1987) (observing that one of the FLSA’s purposes was to “protect the workers from themselves”). See generally Mary L. Hirschfeld, Aquinas and the Market: Toward a Humane Economy 31, 33–34, 48 (2018) (explaining a social-welfare rationale based on Thomistic economic theory that though markets may efficiently give people what they want, what people want isn’t always good for them).
29 See, e.g., 29 U.S.C. § 151 (noting in the statute’s declarations of purpose that employees, having unequal bargaining power, lack “full freedom of association or actual liberty of contract”); cf. Peter Temin, The Roman Market Economy 130 (2013) (“Roman slaves appear to be like long-term employees.”).
30 See, e.g., Press Release, Bobby Scott, Representative, House of Representatives, Bipartisan Labor Leaders Introduce Bill to Protect Workers’ Right to Organize (Mar. 5, 2025) [hereinafter Scott Release], https://bobbyscott.house.gov/media-center/press-releases/bipartisan-labor-leaders-introduce-bill-protect-workers-right-0 (on file with the Regent University Law Review) (emphasizing the broad right held by those characterized as employees to freely organize and indicating that this right helps them obtain the benefits they deserve); Press Release, Brad Sherman, Representative, House of Representatives, Sherman & Labor Caucus Colleagues Introduce Bill to Protect Workers’ Right to Organize (Mar. 5, 2025) [hereinafter Sherman Release], https://sherman.house.gov/media-center/press-releases/sherman-labor-caucus-colleagues-introduce-bill-protect-workers-right (on file with the Regent University Law Review) (emphasizing employees’ rights to work union jobs and to receive protections and benefits unlike workers classified as independent contractors); Cal. Lab. Code § 923 (West 2025) (noting that “individual unorganized worker[s]” are “helpless to exercise actual liberty of contract” or “protect [their] freedom of labor” and therefore need protection).
31 See, e.g., Veena Dubal, The New Racial Wage Code, 15 Harv. L. & Pol'y Rev. 511, 511, 530 (2021) (arguing that laws allowing app-based workers to work under the independent contractor classification that denied benefits retained by those classified as “employees”–yet also lacked full independent contractor rights—are propagated by and allow for continued “racial subjugation”); Sherer & Poydock, supra note 11; Md. Dep't of Lab., supra note 12, at 6 (asserting that misclassification of workers as independent contractors essentially robs workers of protections and their wages); Misclassification of Employees as Independent Contractors Under the Fair Labor Standards Act, U.S. Dep't of Lab.: Wage and Hour Div., https://www.dol.gov/agencies/whd/flsa/misclassification (on file with the Regent University Law Review) (last visited Nov. 1, 2025) (stating that misclassifying workers as independent contractors is a “serious problem” because it denies the workers “protections to which they are entitled under the law”).
32 See, e.g., Dubal, supra note 31, at 513, 530 (describing a voter initiative that would categorize some workers as independent contractors as a mechanism for “tak[ing] away the employment rights” of workers under employment laws); Examining Biden’s War on Independent Contractors: Hearing Before the H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. & the Workforce 118th Cong. 65–66 (2023) (statement of Laura Padin, Director of Work Structures, Nat’l Emp. L. Project) (claiming that, when employers can misclassify their employees as independent contractors, those employees are denied “bedrock” employment rights and protections).
33 See Forbath, supra note 9,at 774–76 (describing the historical view as true free labor belonging to independent producers, such as artisans and shopkeepers).
34 See, e.g., AFL-CIO, supra note 9 (indicating that the PRO Act would prevent employers from misclassifying workers as independent contractors, thereby “excluding their workforce from the NLRA’s protections”); Adewale A. Maye et al., Misclassifying Workers as Independent Contractors is Costly for Workers and States, Econ. Pol'y Inst. (Jan. 22, 2025), https://www.epi.org/publication/misclassifying-workers-2025-update/ (on file with the Regent University Law Review) (recommending the passage of the PRO Act and claiming that independent contractors are “far more vulnerable” than employees given their comparative lack of “basic rights on the job”).
35 See Matthew W. Finkin, The Death and Transfiguration of Labor Law, 33 Comp. Lab. L. & Pol'y J. 171, 182 (2011) (reviewing The Idea of Labour Law (Guy Davidov & Brian Langille eds., 2011)) (explaining that Roman law did not contain much labor law because “to the Romans, waged work, such as it was at the time, posed no social questions”).
36See Buckland & McNair, supra note 20, at 217–18.
37See, e.g., J. Inst. 1.3, 1.8.1–2 (describing the status of slaves in Roman law); G. Inst. 1.9 (referring to status of either slave or free as the main distinctions between persons). See generally Walter Scheidel, Slavery, in The Cambridge Companion to the Roman Economy 89, 89 (explaining the role of slavery in Roman economy and describing Rome as history’s largest slave society).
38See Scheidel, supra note 37 (describing Rome as a slave society and Roman economy as a slave economy); J.A. Crook, Law and Life of Rome, 90 B.C.–A.D. 212, at 55 (1967) (“The slave is regarded by many historians as the determining factor in the economic, social and intellectual life of antiquity.”).
39See Jan Lucassen, The Story of Work: A New History of Humankind 208 (2021) (ebook); John Madden, Slavery in the Roman Empire Numbers and Origins 3 Classics Ireland 109, 110–11 (1996) (indicating that slaves numbered roughly 2 million out of a total of 6 million).
40See Temin, supra note 29, at 114–15 (noting that many modern scholars view Rome as a slave society with labor “markets” dominated by unfree labor).
41See id. at 114–16 (emphasizing Rome’s character as a slave society, that a functioning labor market is marked by workers’ freedom, and that slavery signifies a nonmarket economy).
42See J. Inst. 1.3.2, 1.8.1.
43See J. Inst. 2.9.3 (providing that masters possessed anything their slaves obtained in any manner, as slaves could have no possessions of their own).
44See, e.g., J. Inst. 1.8.1; G. Inst. 1.52; Rules of Ulpian XIX.17–18.
45Temin, supra note 29, at 2, 117 (claiming Rome had a market economy complete with market prices, wages, and the ability of some workers to change their economic activities).
46See Peter Temin, The Economy of the Early Roman Empire, 20 J. Econ. Persps. 133, 135 (2006) (suggesting that the gross domestic product (“GDP”) per capita in Roman Italy fell somewhere around the same GDPs of the most advanced European economies before the Industrial Revolution); Morris Silver, Roman Economic Growth and Living Standards: Perceptions Versus Evidence 37 Ancient Soc'y 191, 191, 195 (2007) (arguing that Romans were motivated by “profit” and “achievement,” and providing evidence that Rome engaged in complex commercial trade).
47See William R. Shepherd, Historical Atlas 34–35 (1926) (mapping the expansion of Rome from the beginning of the First Punic War to 180 A.D.).
48See, e.g., Andrew Lintott, Imperium Romanum: Politics and Administration 9–12 (1993) (delineating the expansion of the Roman Empire and subordination of various nations to the Imperial expanse); Graham P. Burton, The Roman Imperial State, Provincial Governors, and the Public Finances of Provincial Cities, 27 B.C.–A.D. 235, 53 Historia: J. Ancient Hist., 313–314 (2004) (recognizing the control Roman leaders exerted over subordinate nations).
49 See Temin, supra note 29, at 2, 4 (describing the economic benefits of the Pax Romana [“Roman peace”] and the extensive market enjoyed by the Roman Empire).
50See Yuval Noah Harari, Sapiens: A Brief History of Humankind 103 (2015) (“The Roman Empire at its zenith collected taxes from up to 100 million subjects.”).
51See Temin, supra note 29, at 2 (noting how the Mediterranean trade the Roman Empire enjoyed benefited ordinary Romans).
52See id. (explaining that the Pax Romana spurred Mediterranean trade).
53See Jethro Lieberman, et al, Law for Entrepreneurs 769 (2012) (explaining that essentially all commercial activity relies on agency law).
54 See Buckland & McNair, supra note 20, at 27–28.
55See id. at 28 (“There was in fact no need for agency as we understand it: the slave filled the gap.”); Scheidel, supra note 37, at 89.
56Edgar S. Shumway, Freedom and Slavery in Roman Law, 49 Am. L. Reg. 636, 637 (1901); cf. J. Inst. 1.8.1 (describing slaves as being owned and explaining that whatever slaves acquired belonged to their masters—not the slaves themselves).
57See J. Inst. 4.6.10, 4.7.1–2 (providing that a master may be liable for contracts made by his slave either when the slave acted within the scope of his authority or when equity demands).
58See id. 4.8, 4.8.3–4 (providing the option for rights of action against masters for their slave’s wrongs against others, which right could be extinguished if the master gave up his slave).
59See Buckland & McNair, supra note 20 at 28 (explaining how masters used slaves as instruments of commerce).
60See J. Inst. 4.7.2.
61See id.; Story, supra note 22, at 597–99 (describing Roman practice of allowing shipmasters to be held liable in some cases for safe delivery of goods).
62See J. Inst. 2.9.3. But see Temin, supra note 29, at 124 (claiming that slaves could sometimes use profits accumulated through business activities on their masters’ behalf to purchase their freedom).
63See Crook supra note 38, at 188; cf. J. Inst. 4.7.2 (indicating that slaves could operate on behalf of their masters in essentially any business enterprise).
64Rafael Domingo, Roman Law of Contracts. An Overview 2 (2017), https://ssrn.com/abstract=2942873 (on file with the Regent University Law Review) (“The main feature of the Roman obligation was its strictly personal character.”).
65See Gloria Vivenza, Roman Economic Thought, in The Cambridge Companion to the Roman Economy 31 (Walter Scheidel ed., 2012).
66Cf. Buckland & McNair, supra note 20, at 27–28 (explaining that, rather than engage in commerce themselves, masters often left such tasks to their slaves and suggesting that, during the “bad times” of the late Roman Empire, free Romans began to take issue with the competition slaves posed).
67See id. (observing that Romans often preferred to leave commercial work to their slaves); Crook, supra note 38, at 180, 194–95 (describing the “ubiquitous reluctance” of freeborn Romans to perform basic domestic work and the popular opinion that free labor was “debased” by its co-existence with slavery at various levels of the Roman economy).
68See G. Inst. 2.95;Crook, supra note 38, at 241. But see Buckland & McNair, supra note 20, at 220 (explaining that free persons were eventually able to operate through general business managers or procurators to alienate property and later to acquire property).
69 See G. Inst. 2.86–87.
70 See id.; cf. Buckland & McNair, supra note 20, at 28.
71See Buckland & McNair, supra note 20, at 28.
72Cf. Lucassen, supra note 39, at 139, 142 (noting the impression that slavery in Rome decreased in the late Roman empire, that free wage labor may have increased during and after the third century, and that slavery decreased where there were many wage workers). But see Robert L. Heilbroner, The Worldly Philosophers: The Lives, Times, and Ideas of the Great Economic Thinkers 28 (7th ed. 1999) (observing the lack of modern free labor market in the precapitalist society as many workers were tied to land through serfdom).
73Blackstone, supra note 21, at *423.
74See VanderVelde, supra note 17, at 1082 (observing that “slavery was the platform of Blackstone’s taxonomy”); Buckland & McNair, supra note 20, at 30 (describing influence of Justinian’s Institutes on development of English common law); Justinian's Institutes 24 (Peter Birks & Grant McLeod trans., 1987) (describing Blackstone’s reflection of Justinian’s Institutes).
75 See Blackstone, supra note 21, at *422.
76 See id. at *428, 442, 451–52 (indicating that masters, parents, and husbands have certain powers or duties giving them some degree of primacy over the other party).
77 Cf. id. (indicating that husbands, parents, and masters have power that suggests a comparative degree of subordination by wives, children, and servants).
78 See J. Inst. 1.3, 1.8, 1.9, 1.10; G. Inst. 1.9, 1.55, 1.108.
79See Blackstone, supra note 21, at *422; J. Inst. 1.3.3 (using the plural form of servus for the word “slaves”); G. Inst. 1.9 (utilizing the equivalent of the term servus).
80See J. Inst. 1.3.3 (Peter Birks et al. trans., 1987); G. Inst. 1.9 (W.M. Gordon & O.F. Robinson trans., 2015).
81 See VanderVelde, supra note 17, at 1095–96 (explaining Blackstone’s view regarding a master’s property interests in his servant’s labor and suggesting there is little difference in ownership of the person and ownership of his work); cf. Blackstone, supra note 21, at *429 (describing master-servant law as founded on the property interest a master holds in his servants).
82See Blackstone, supra note 21, at *429 (“[I]t is part of [the servant’s] duty[] . . . to stand by and defend his master.”); cf. id. at *425–26, 428 (indicating that a master could discipline his servant for disobedience and noting the master has a duty to maintain and instruct the servant).
83See id. at *425–26 (explaining that individuals of certain ages without clear livelihoods could be compelled to become menial servants for set terms and required to complete their term of service and likewise providing that impoverished children could be apprenticed out by overseers for years without the child’s choice as to their master and runaway apprentices could be compelled to complete their service); Temin, supra note 17, at 117 (indicating that, leading up to the late nineteenth century, workers in the U.S. and Britain could be prosecuted if they left their jobs without their masters’ consent).
84Cf. Blackstone, supra note 21, at *425–26 (providing that for the types of servants termed labourers, wages may be set for justices or the county sheriff and that the law allowed for penalties on individuals that “exact[ed]” higher wages than were settled by the justices or sheriff).
85 Compare id. at *429–30 (providing that a master is accountable for his servant’s actions done on his behalf), with J. Inst. 4.7.1–2 (describing suits in equity against masters for their servants’ actions under Roman law).
86 Cf. Blackstone, supra note 21, at *429–30 (providing that whatever a servant does with the master’s express or implied authority may result in the master’s liability, for the master is expected to provide trustworthy servants).
87 See id. (noting the master is answerable for the actions of his servant done with the master’s express or implied authority to so act).
88 See id. at *430.
89See id; Story, supra note 22, at 567–68.
90Blackstone, supra note 21, at *430; Story, supra note 22, at 567–68.
91See Story, supra note 22, at 568.
92 See id.
93 See id. at 588 (extrapolating the common-law principle that when the individual “employed by the principal exercises a distinct and independent employment, he and the persons, whom he employs under him, are not to be deemed the servants of the principal, but he stands in the relation of a sub-contractor only, and the persons employed by him are his own servants”); Kent, supra note 21, at 210 (indicating that a master is not liable for his servant when the servant goes beyond his scope of authority provided by the master).
94See Story, supra note 22, at 597–601 (comparing American agency law to Roman slave law and concluding that American rules of vicarious liability were “fully proclaimed in the comments of the Roman law”).
95 See Douglas Hay & Paul Craven, Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955, at 17–20 (2004) (describing the spread of British master-servant law into the colonies).
96 See Story, supra note 22, at 565–67, 587–88.
97 See Atkinson, supra note 17, at 217.
98See id. (“[W]e constantly find an offensive term ['servant'] used in court to denote duties and obligations which rest upon the pure contract of hiring.” (alteration in original) (quoting James Shoulder, A Treatise of Domestic Relations 690 (1889))). See also Walker, supra note 22, at 243 (“The title of master and servant . . . does not sound very harmoniously to republican ears.”).
99See Walker, supra note 22, at 246–47 (referring instead to “agents”); Story, supra note 23, at 1 (referring to a law of “agency” rather than a law of master and servant).
100 See Story, supra note 22, at 563 n.3 (observing that Blackstone offered different rationales for vicarious obligations than did American lawyers in the early nineteenth century).
101 See Cabrelli, supra note 22 (providing that master-servant law was status-based leading up to the mid-nineteenth century). Compare J. Inst. 1.8.1 (emphasizing slaves’ status as being entirely in their master’s power such that anything they acquired went to their masters), with Blackstone, supra note 21, at *429 (indicating that based on the servant’s status as such, he has a duty to stand by his master).
102See Paula J. Dalley, A Theory of Agency Law, 72 U. Pitt. L. Rev. 495, 506–07 (2011) (arguing that modern agency doctrine is essentially undergirded by the same reasoning as contract law); e.g., Cabrelli, supra note 22, at 8–9 (explaining the shift in the understanding of master-servant law from status-based to contract-based law). See generally Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (3d ed. 1873) (describing the transition from status-based to contract-based law).
103Cf. Cabrelli, supra note 22, at 8–9 (providing that the shift toward modern agency law coincided with the growing belief that engaging in labor for another was an expression of one’s own free will—not an obligation the law forced on them).
104Brianne J. Gorod, Defending Executive Nondefense and the Principal-Agent Problem, 106 Nw. U. L. Rev. 1201, 1231 (2012) (“[I]n the paradigmatic principal-agent context, agents agree to fulfill their principal’s wishes.” (emphasis added)).
105See Forbath, supra note 9, at 776 (explaining that in Northern, pre-Civil War “free labor” ideology, labor arrangements were considered temporary as workers moved freely from working for others to working for themselves).
106See id. at 776–77 (noting the understanding in the American “free labor” movement of the late 1800s that an individual, though he may work for another for a time, could then go on to work for himself).
107See Story, supra note 22, at 617–18 (noting that an agent could renounce his agency and elect to act in contravention of any agreement with the principal and comparing this arrangement with Roman law, under which all agents, even those in a gratuitous agency, were bound to act if they were physically able to do so).
108See Atkinson, supra note 17, at 205–06.
109 See Alexander T. MacDonald, Secondary Picketing, Trade Restraints, and the First Amendment: A Historical and Practical Case for Legal Stability, 40 Hofrstra Lab. & Emp. L.J. 1, 25 (2022).
110See id.; John Hensley & Debra D. Burke, The Changing Nature of Supervision: Implications for Labor-Management Relations in the Twenty-First Century,33 Seton Hall Legis. J. 397, 422–23 (2009).
111See Forbath, supra note 9, at 769.
112 See id.
113 See id. (providing the view of labor organizations that requiring individuals to sell their labor was inconsistent with those individuals’ citizenship status); cf. Atkinson, supra note 17, at 205–06 (arguing that, throughout the course of industrialization, some aspects of master-servant law remained, particularly the employee’s dependence on his master, and indicating workers in industrialized America would face difficulty obtaining recovery for workplace injuries based on rhetoric of independence in labor).
114 See Atkinson, supra note 17, at 205–06, 229–30.
115See id.
116See Forbath, supra note 9, 774–75 (providing that free labor doctrine held traditional republican ideals yet explaining that, even still, the employees lacking property were “dependen[t]” and thus “vulnerable”).
117 See id. at 775 (providing that the worker lacking property could not be trusted because reliance on the master made him liable to coercion); VanderVelde, supra note 17, at 1080 (arguing that despite post-Civil War reforms, “master-servant law survived,” and American law still reflects it).
118Cf. Glaeser & Schleifer, supra note 24, at 405–07 (providing that law developed in response to the changing economy and there was essentially a policy battle leading to Congressional legislation under pressure); Hovenkamp, supra note 9, at 263 (explaining that the Progressive Era and the New Deal saw the development of “modern” labor policy and both the economic and legislative scenes were turbulent).
119Glaeser & Shleifer, supra note 24, at 401.
120 See id.; Robert L. Rabin, Legitimacy, Discretion, and the Concept of Rights, 92 Yale L.J. 1174, 1178 (1983).
121See, e.g., Frank T. Vyver, Regulation of Wages and Hours Prior to 1938, 6 L. & Contemp. Probs. 323, 327 (1939) (describing industry boards in various states that establish the minimum wage for the respective state); Kate Andrias, An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act, 128 Yale L.J. 616, 652 (2019) (describing the same wage laws); Atkinson, supra note 17, at 256–69 (describing emerging workers’ compensation legislation as a reaction to perceived gaps in contract-based employment regime); Mathews v. Workmen’s Comp. Appeals Bd., 493 P.2d 1165, 1171 (Cal. 1972) (discussing history of workers’ compensation legislation adopted in California in the early twentieth century); Hovenkamp, supra note 9, at 263 (describing legislation on wages, hours, and minimum wages for children and women at the state level during the Progressive era).
122National Industrial Recovery Act of 1933, Pub. L. No. 73-67, 48 Stat. 195
123Fair Labor Standards Act, Pub. L. No. 75-718, 52 Stat. 1060 (1938) (codified as amended at 29 U.S.C. §§ 201–219).
124Social Security Act, Pub. L. No. 74-271, 49 Stat. 620 (1935).
125National Labor Relations Act, Pub. L. No. 74-198, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151–169).
126See Joseph A. Seiner, Workplace Power, 65 B.C. L. Rev. 55, 71 (2024); Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189, 1250–51 (1986).
127See 29 U.S.C. § 152(3) (defining “employee” under the NLRA); 29 U.S.C. § 203(e)(1) (defining “employee” under the FLSA); 42 U.S.C. § 410(a) (defining “employment” under the SSA); Bill Cassidy, Senate Comm. on Health Educ. Lab. & Pensions, Portable Benefits Paving the Way Toward a Better Deal for Independent Workers 1 (2025), https://www.help.senate.gov/imo/media/doc/portable_benefits_white_paper_finalpdf.pdf (on file with the Regent University Law Review) (explaining that major American employment legislation has applied only to employees as defined in the legislation, not to independent contractors).
128Cf. Lance H. Delrie, “Economic Reality”—A Perpetual State of Confusion, La. L. Rev.: LLR Lagniappe, https://lawreview.law.lsu.edu/archives/3174 (on file with the Regent University Law Review) (explaining the circularity of the FLSA’s definition of “employee”); Tammy Dee McCutchen & Alexander T. MacDonald, The War on Independent Work: Why Some Regulators Want to Abolish Independent Contracting, Why They Keep Failing, & Why We Should Declare Peace, 24 Fed. Soc'y Rev. 165, 174 (2024) (describing the same problem and indicating that court-devised tests had to fill in definitional gaps).
129 29 U.S.C. § 203(e)(1).
130 See 29 U.S.C. § 152(3).
131See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 319, 323 (1992) (reading a Congressional statute with a decidedly unhelpful definition of “employee” to “incorporate traditional agency law criteria for identifying master-servant relationships”).
132 See id. at 322–324; FedEx Home Delivery v. NLRB, 563 F.3d 492, 495–96 (D.C. Cir. 2009) (applying the common-law agency test to distinguish between employee and independent contractors and referencing the guidance provided by the restatement of agency).
133SeeNLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 119–20, 124–25 (1944) (addressing the definition of employee under the NLRA), superseded by statute, Labor Management Relations Act, Pub. L. No. 80-101, 61 Stat. 136–38 (1947); United States v. Silk, 331 U.S. 704, 710–13 (1947) (addressing the definition of employee under the SSA and analyzing the problem under the perceived purpose of the statute rather than the common-law test), superseded by statute, Act of June 14, 1948, Pub. L. No. 80-642, 62 Stat. 438; cf. Rutherford Food Corp. v. McComb, 331 U.S. 722, 726–28 (1947) (indicating that FLSA’s definition of “employee” may cover more individuals than the term was understood in the past and affirming the circuit court below, which, in deciding the workers were employees, declined to use the common-law test).
134See Hearst Publ'ns, 322 U.S. at 124–25; Silk, 331 U.S. at 710–12; Rutherford Food, 331 U.S. at 726–28.
135See Hearst Publ'ns, 322 U.S. at 124–25 (rejecting the common-law test in evaluating the definition of employee under the NLRA); Rutherford Food, 331 U.S. at 727.
136 See, e.g., Hearst Publ'ns, 322 U.S. at 124 (“Congress had in mind a wider field than the narrow technical legal relation of ‘master and servant[.]’”).
137 Act of June 14, 1948, Pub. L. No. 80-642, 62 Stat. 438 (amending the SSA); Labor Management Relations Act, Pub. L. No. 80-101, 61 Stat. 136–38 (1947) (amending the NLRA); see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324–25 (1992) (explaining that Congress subsequently amended its statutory definitions of “employee” after the Supreme Court’s interpretation of those statutes to reach farther than the common-law rules would).
138Jessie O’Brien, Note, The Back-and-Forth Battle of Defining Independent Contractors, 89 Mo. L. Rev. 719, 726 (2024). The difference may owe to textual differences as much as Congress’s intent. In the FLSA, Congress defined “[e]mploy” as “to suffer or permit to work.” 29 U.S.C. § 203(g). That phrase was taken from earlier child-labor statutes, which tried to hold employers liable for violations in their supply chains. See Rutherford Food, 331 U.S. at 728; U.S. Dep't of Lab. Wage and Hour Div., Administrator's Interpretation No. 2015-1, at 3 (2015) (withdrawn). It was therefore intentionally and explicitly broader than the common-law baseline. U.S. Dep't of Lab. Wage and Hour Div., Administrator's Interpretation No. 2015-1, at 3 (2015).
139See Darden, 503 U.S. at 322–25 (interpreting Congress’s reactions as adopting a common-law default definition).
140 See id. at 324–25.
141See Rutherford Food, 331 U.S. at 729–30 (distinguishing between independent contractors and workers subject to employers); Eric Posner, How Antitrust Failed Workers 147–48, 151 (2021) (describing the modern regime as distinguishing between “relational” workers at the mercy of their employers and “discrete” workers offering services to multiple clients on the market, and explaining that those relational workers at their employers mercy receive legal protections).
142 See NLRB v. United Ins. Co. of Am., 390 U.S. 254, 255–56 (1968) (explaining that independent contractors are excluded from protections under the NLRA and noting that the “obvious purpose” of Congress’s amendments was to distinguish between employees and independent contractors using common-law agency principles).
143See Samantha J. Prince, The AB5 Experiment—Should States Adopt California’s Worker Classification Law? 11 Am. U. Bus. L. Rev. 43, 50–51 (2022) (explaining that employee status dictates coverage under an array of legal protections and benefits).
144 See, e.g., 29 U.S.C. § 152(3) (excluding independent contractors under NLRA); 29 C.F.R. § 795.105(a) (2024) (“The [FLSA’s] minimum wage, overtime pay, and recordkeeping obligations apply only to workers who are covered employees.”); Or. Rev. Stat. § 670.600(2) (2023) (defining “independent contractor” as it affected the application of multiple state laws).
145See Forbath, supra note 9, at 774–75 (explaining that, during the “free labor” movement, independence from economic servitude was seen as a mark of a true citizen).
146 See Andrew Melzer & David Tracey, Employers Should Owe a Duty of Loyalty to Their Workers, 2020 Cardozo L. Rev. De Novo 112, 114; Blackstone, supra note 22, at *425–26 (noting the expectation in some master-servant relationships that the master maintain his servant).
147See Blackstone, supra note 21, at *428–29 (indicating that a master may correct his servant for disobedience and providing a servant’s obligation to be loyal to his master); Restatement (Second) of Agency § 393 (Am. L. Inst. 1958) (recognizing agent’s duty of loyalty with respect to matters encompassed in the agency relationship); Leslie Larkin Cooney, Employee Fiduciary Duties: One Size Does Not Fit All, 79 Miss. L.J. 853, 854 (2010) (explaining that as agents of employers, employees owe a duty of loyalty).
148See 29 U.S.C. § 151 (declaring as federal policy that individual employees, without additional legal provisions, lack adequate bargaining power to protect themselves).
149See id.; Blackstone, supra note 21, at *425 (indicating that a master had a duty toward menial servants to “maintain [the servant][] throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not”).
150See, e.g., Padin Statement, supra note 32, at 65 (emphasizing the lack of governmental regulatory protections available for some workers); Dubal, supra note 31, at 511, 513 (evaluating California’s Proposition 22 and emphasizing its forecasted foreclosure of regulatory rights for ride hail and food delivery platform workers).
151Cf. Cabrelli, supra note 23, at 8–11 (explaining that the employment relationship began to move from being understood as status-based to contract-based in the nineteenth century, but that current employment law is so profoundly impacted by regulation and so different from traditional contract law that it could arguably be a separate subject area).
152 See Brett H. McDonnell & Matthew T. Bodie, From Mandates to Governance: Restructuring the Employment Relationship, 81 Md. L. Rev. 887, 900–903 (2022) (describing employment as a “Locus of Regulation”); cf. Cabrelli, supra note 22, at 10–11 (noting that, despite its contractual roots, employment law is significantly subject to regulation, and some argue that it has differed so greatly from contract law that it should be considered as an entirely separate discipline).
153See Graham Boone, October 2015 Labor Law Highlights, 1915–2015, U.S. Bureau of Labor Statistics Monthly Labor Review (Oct. 2015), https://www.bls.gov/opub/mlr/2015/article/labor-law-highlights-1915-2015.htm (on file with the Regent University Law Review) (surveying key employment and labor regulation in the twentieth century). See generally Norman Ware, The Industrial Worker, 1840–60, at 126, 133, 144 (1964) (describing early examples of employment regulation, including ten-hour laws in states like New Jersey and Massachusetts).
154 See, e.g., 29 U.S.C. § 206 (minimum wage); id. § 207 (overtime); S.F. Cal. Lab. & Employment Code art. 21, div. 1, § 21.3 (2025) (minimum healthcare expenditures); Rachel Ledbetter, Overregulation is Crippling Business, Getting Regulations Right is the Key to Growth, U.S. Chamber of Commerce (Jan. 16, 2025), https://www.uschamber.com/improving-government/overregulation-is-crippling-business-getting-regulations-right-is-the-key-to-growth (on file with the Regent University Law Review) (claiming that overly broad regulations are increasingly burdening American businesses).
155See generally Michael J. Canan & William D. Mitchell, Employee Fringe and Welfare Benefits Plans (2024) (delineating many regulatory protections and benefits for employees to assist in making benefit plans); John H. Langbein et al., Pension & Employee Benefit Law (6th ed. 2015) (providing a legal introduction to employee benefits and pension, including many relevant regulations); Sharon Reece & Max D. Siegel, Employee Benefits Law: The Essential Cases (2014) (addressing how courts have approached regulatory employee benefit plans like ERISA).
156See, e.g., N.Y.C. Admin. Code § 20-1222 (2025) (regulating shift schedule in fast-food workplaces); id. § 20-1272 (regulating wrongful discharge of employees in fast-food workplaces); Or. Rev. Stat. § 653.428 (2025) (regulating employee’s schedules to be predictable in covered workplaces); N.Y. Lab. Law § 196-b (Consol. 2025) (guaranteeing paid sick leave and prenatal leave in the covered scenarios); No Robot Bosses Act, S. 2419, 118th Cong. (2023) (proposing to give employees a right to be free of certain types of electronic monitoring in the workplace); A4852, 221st Leg. (N.J. 2024) (proposing to give employees a “right to disconnect” from work).
157See, e.g., Padin Statement, supra note 32, at 65; Dubal, supra note 31, at 513 (indicating that California’s proposition 22, by creating an additional classification for employees, would strip them of their rights as employees).
158See Liya Palagashvili, Consequences of Restricting Independent Work and The Gig Economy 1 (2022), https://www.mercatus.org/research/policy-briefs/consequences-restricting-independent-work-and-gig-economy (on file with the Regent University Law Review) (“Ostensibly to help independent workers, federal and state authorities have tried to reclassify some of them as traditional employees.”); e.g., Scott Release, supra note 30, at 1 (advocating for the PRO Act as a mechanism for extending rights to more workers); Sherman Release, supra note 30 (indicating that the PRO Act would help workers collaborate to improve the workplace); Megan Lane, Assembly Third Reading AB 5 (Gonzalez) 1, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201920200AB5 [hereinafter AB 5 Analysis] (on file with the Regent University Law Review) (scroll to and click on “05/24/29 – Assembly Floor Analysis”) (explaining in a bill analysis that adopting the AB 5 bill, and thus the “ABC test,” would probably result in more workers categorized as employees rather than independent contractors).
159 See, e.g., Palagashvili, supra note 158; Guy Davidov & Pnina Alon-Shenker, The ABC Test: A New Model for Employment Status Determination? 51 Indus. L.J. 235, 235 (2022) (describing the ABC test for distinguishing workers who are employees rather than independent contractors as “significant” and “rare” and noting that such tests open the door to a multitude of employment rights).
160McKayla Murphy Zelaya, Minnesota Misclassification Solutions Lead the Way but Leave Undocumented Workers Behind: How Minnesota Can Increase Worker Protections, 50 Mitchell Hamline L. Rev.507, 534 (2024); see, e.g., Mass. Gen. L. ch. 149, § 148B(a)(1)–(3) (2025) (presuming for the purpose of the relevant statutes that a worker is an employee unless specified criteria are satisfied); Cal. Lab. Code art. 1.5, div. 3, § 2775(b)(1) (2025) (utilizing the same essential presumption of a worker’s employee status absent certain criteria).
161 See AB 5 Analysis, supra note 158, at 3 (“Widespread adoption of the ABC test will, relative to current law, likely lead to more workers classified as employees rather than independent contractors.”); N.J. Admin. Code § 12:11 (2025) (providing proposed rule regarding the ABC test and indicating that it would have a “positive social impact” and result in more workers “properly classified as employees,” and that those workers will receive benefits). But see Cassidy, supra note 127, at 2 (concluding that ABC test has been an “economic disaster” in states where it was adopted and has caused a net decline in employment).
162Liya Pagashvili et al., Assessing the Impact of Worker Reclassification: Employment Outcomes Post-California AB5, Mercatus Ctr. Geo. Mason U. (Jan. 31, 2024), https://www.mercatus.org/research/working-papers/assessing-impact-worker-reclassification-employment-outcomes-post (on file with the Regent University Law Review) (“[P]olicymakers have tried to prevent workers from being classified as independent contractors. Their goal is to encourage employers to hire these workers as traditional employees, with all the work-related benefits the latter enjoy.”).
163Cf. AB 5 Analysis, supra note 158, at 2 (reiterating the argument that the bill would “ensure” that workers “retain” the rights given them in the state labor code); Palagashvili, supra note 158 (indicating that, to protect workers, federal and state authorities have sought to classify them as employees rather than independent contractors).
164 Cf. U.S. Dep't of Lab.: Wage and Hour Div., supra note 31 (stating that misclassifying workers as independent contractors is a “serious problem” because it denies the workers “protections to which they are entitled under the law”); Prop 22 Is Bad for Workers: That’s Why We Are Suing to Strike it Down, SEIU 1021 (Jan. 12, 2021), https://www.seiu1021.org/post/prop-22-bad-workers-thats-why-we-are-suing-strike-it-down#:~:text=The%20lawsuit%2C%20filed%20in%20California,our%20pay%20and%20working%20conditions (on file with the Regent University Law Review) (arguing that law allowing app-based workers to work as independent contractors “stripped” the workers “of basic rights”); Dubal, supra note 31, at 513 (treating protections under employment law as an entitlement for workers and not referring to the traditional divisions arising out of early master-servant law).
165See Forbath, supra note 9, at 775 (describing attitudes toward subordinate labor in nineteenth century America); Vivenza, supra note 65, at 30–31 (describing slaves’ status in Rome).
166See infra text accompanying notes 15–20 (explaining the relationship between Roman slave law and worker classification).