The Disappearing Worker: On the Crisis of Misclassification

By Natalie Pfeifle

The Law Students on Workers’ Rights series publishes essays from current and incoming students from top law schools across the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What is the most significant challenge facing workers’ rights, and what role should employment attorneys play in addressing that challenge?”

You think you know what a worker looks like: muddied or tarred boots on the ground, a punch-card, paystub stacks, a boss in an office two floors up. But look again. The worker is disappearing, stripped of the name even as the work remains. What was once visible has been made invisible, abstracted behind an app or a login screen.

In today’s economy, the greatest threat to workers’ rights is not old-fashioned exploitation, but the new, gleaming trick of misclassification. Companies drape a name-tag around the worker’s neck that says “independent contractor,” and like a magician whipping away a tablecloth, they make every obligation vanish: minimum wage, overtime, healthcare, collective bargaining, unemployment insurance – all of it gone. Yet the work stays. The risk, the liability, the hunger. Only the protections evaporate.

This is no accident, nor is it the glitch of a few companies with bad table manners. Rather it is a structured strategy engineered by legal departments and board consultants. Consider Uber, DoorDash, and Amazon Flex. Here, the worker is not a worker but a “partner,” a “driver,” or an “entrepreneur,” according to the law. Each man and woman is told that they run a small business of their own, a franchise of one, and yet they are entitled to none of the rights attached to employment.

The algorithm dispatches the orders. The worker obeys the rate and the punitive scorecard so it looks like work, smells like work. It breaks the back and deadens the spirit like work all the same, but call it something else – call it “freedom” – and the law, if left unchallenged, shrugs and turns tail.

The consequences spread far beyond the gig platforms. If you can unmake a worker at will, if you can turn them into a ghost with a contract, no industry is safe. Construction, logistics, healthcare, education – all ripe for “flexibility.” All are vulnerable to the silent retreat of rights once thought nonnegotiable, and the worker, atomized and underpaid, cannot unionize what does not legally exist. This is where employment attorneys must act.

First, they must rip apart the polite fictions in court. A true independent contractor controls their work; they set their rates; they bear business risks; they are not docked for refusing a task, nor fired by an algorithm for a customer’s whim. Attorneys must argue the truth on behalf of these workers: that ‘control’ defines employment, not the fantasies printed in Terms and Conditions.

Second, they must fight for structural reforms. California’s Assembly Bill 5, codifying the ABC Test, tried to choke off mass misclassification, demanding proof that a worker is independent. Yet, even there, carve-outs and compromises have gnawed away at the law until its pillar bones snapped. Attorneys must push back against these retreats. Every exemption breeds a thousand new evasions. Flexibility, sold as opportunity, becomes a cancer in labor markets when left unchecked.

Third, they must not allow the battlefield to be narrowed. It is tempting, when faced with an endless parade of misclassified workers, to settle for compensation claims, one by one. But the larger fight – for collective rights, for union eligibility, for recognition of workers as a class, not scattered beggars – must be carried alongside the small payouts. Otherwise, the legal system will only mop up blood and stuff wounds with gauze without ever stitching the laceration close.

The companies will argue, with polished faces and their rehearsed sincerity, that they offer freedom: work “when you want, how you want,” but a choice between poverty and exhaustion is not freedom, rather a leash made invisible, no less cinching for being unseen. It is vital to show courts, legislators, and the public that the independent contractor façade is not innovation. It is regression, dressed up for the digital age.

This matters beyond dollars and cents. Work, real work, has always been more than a paycheck. It is how people anchor meaning, community, dignity. Misclassification does not just strip workers of benefits; it strips them of standing. It isolates them into individual, precarious hustles where none can demand better, and all must settle for less. 

If employment attorneys fail, the future of work will be a graveyard – workers divided, unprotected, told they are lucky to eat. Wages will stagnate. Protections will rot. The American promise of dignity in labor will curdle into a joke refugees fled their countries for. What looks like a worker, walks like a worker, and breaks its back like a worker – is a worker, and the law must call them by their true name.

Reflections from Charles Joseph

Employers save money when they misclassify employees as independent contractors. And misclassification also strips workers of critical protections. According to the National Employment Law Project, 10-30% of employers misclassify employees as independent contractors. 

What can workers do? Learn what is misclassification and who counts as an independent contractor to see if you’ve been misclassified. If you are an independent contractor, learn about state and local protections like the Freelance Isn’t Free Act. Employment attorneys can help hold companies accountable for misclassifying their workers. 

Natalie Pfeifle holds a bachelor’s in political science with a minor in Chinese language from the University of Nevada, Reno. Pfeifle will join the Stetson University College of Law Class of 2028 in the fall. 

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $200 million for clients.