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In recent years, lawsuits alleging the misclassification of workers as ?independent contractors? rather than ?employees? have become widespread in the United States. Determining employee status is important because such status is a gateway to many substantive legal rights. In response, some commentators have proposed an in-between hybrid category just for the gig economy. However, such an intermediate category is not new. In fact, it has existed in many countries for decades, producing successful results in some and misadventure in others. We use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In Italy, the quasi-subordinate category created an opportunity for arbitrage that resulted in less worker protection. The end result was confusion, and since 2015, the third category's use has been extremely limited. Spain's third category, the TRADE, was only made available to a small percentage of selfemployed workers because of the burdensome nature of its regulations and the high dependency threshold required for inclusion. As for Canada, the practical result of the "dependent contractor" category was to expand the definition of employee and to bring more workers under the ambit of labor law protection. We ultimately conclude that workable proposals for a third category must also encompass other forms of precarious employment. Working within the existing framework, one solution would be to change the default presumptions regarding the two categories that already exist. Above a minimum threshold of hours worked or income earned, the default rule would be an employment relationship for most gig workers except those that may fit into a "safe harbor" for de minimis amateurs or volunteers.
INTRODUCTION
Recently, there has been a spate of lawsuits across the United States alleging that platforms in the ?on demand? economy have misclassified their workers as independent contractors.1 In response to the litigation and widespread confusion about how these workers should be classified, there have been proposals for a ?third? or ?hybrid? category to be created in the United States, situated between the categories of ?employee? and ?independent contractor.? Regardless of whether these workers would be denominated ?dependent contractors? or ?independent workers,? these proposals for establishing a hybrid category have sparked debate and controversy.2 Proponents advocate that an intermediate category is necessary for the modern...