The National Labor Relations Act of 1935 was described at the time as possibly “the most radical piece of legislation ever enacted by the United States Congress.” Critics warned it would “out-Soviet the Russian Soviets.” They were not entirely wrong about its ambition. The NLRA was an emergency measure born from genuine fear that capitalism itself might fall to communism.

Understanding this origin matters because it explains why modern labor law assumes a factory-floor, adversarial employer-employee model that makes no sense for gig workers. The NLRA was not designed to optimize worker welfare across all possible employment arrangements. It was designed to prevent socialist revolution during the Great Depression by giving workers just enough collective power to stay within the system.

The law assumes a fixed workplace, a single employer, ongoing supervision, and a clear chain of command. It assumes that the employer controls the means of production and the worker sells labor in exchange for a wage. It assumes that the interests of employer and employee are fundamentally adversarial and that collective bargaining is the mechanism for balancing power.

Every one of these assumptions fails in the gig economy. There is no fixed workplace. There is no single employer — workers multi-home across platforms. Supervision is algorithmic, not managerial. The platform does not control the means of production; the driver owns the car, the courier owns the bicycle, the freelancer owns the laptop. And the relationship is not fundamentally adversarial — the platform’s success depends on attracting and retaining workers, not on extracting surplus from a captive workforce.

In Unbundling Employment, I argue that the solution is not to force gig work into the NLRA’s categories but to build a new framework that reflects the actual structure of platform labor markets. The Form GW proposal does this by borrowing from securities law rather than labor law — because securities regulation already knows how to handle competitive markets where disclosure, not mandates, drives outcomes.

The deeper lesson is that legal frameworks designed for one historical emergency tend to persist long after the emergency has passed. The NLRA solved the 1935 problem. Applying it to the 2025 problem is like using a wartime rationing system to manage a supermarket.

Read the full article: Unbundling Employment: Flexible Benefits for the Gig Economy, 11 Drexel Law Review 1 (2019).