What it means to “work” is changing. Many have eschewed the traditional nine-to-five job for more flexible, often one-time “gigs”: delivering groceries, fixing a sink, driving a stranger to the airport. Supported by online intermediaries such as Uber and Task Rabbit, this growing gig economy offers greater freedom for workers and businesses alike. But at the same time, it has raised questions about the existing categories of employment law. Already, disputes have ignited over whether gig workers are employees or merely independent contractors under the law. Traditionally, one of the most crucial factors indicating the existence of an employment relationship has been the worker’s loss of autonomy. The challenge in the gig economy — where everyone gets to “be their own boss” — is to determine who, if anyone, still counts as an employee under this test. Recently, in Sisters’ Camelot, the National Labor Relations Board did just that, finding that door-to-door canvassers with flexible work schedules were employees within the meaning of the National Labor Relations Act. The Board concluded that the canvassers — while free to choose when and how much to work — still faced many of the same constraints as traditional employees and were therefore entitled to the same protections. The Board’s decision demonstrates how existing legal categories can and do incorporate nontraditional workers. Flexible or not, many relationships in the gig economy are still shaped by the very power asymmetries that define an employment relationship — and should be recognized as such.

Sisters’ Camelot is a nonprofit organization in Minnesota that distributes food to low-income individuals. It funds its operations almost entirely through donations collected by door-to-door canvassers, who operate on a flexible schedule and can choose whether to work on any given day. Those who do decide to work must show up at the Camelot facility at a particular time to be transported to their designated canvassing area. Canvassers can solicit donations only within their assigned area, and only for Camelot — they are prohibited from soliciting for other organizations at the same time, and can be disciplined for doing so. They are also required to keep detailed records on each house they visit. At the end of their shift, the canvassers deliver their collected donations and are transported back to the facility. Each canvasser receives a nonnegotiable commission based on individual donations collected.

Christopher Allison was one of these canvassers. In 2013, Camelot learned that Allison was involved in efforts to organize a canvassers’ union. He was fired. His fellow canvassers were warned that, despite their efforts, they could not “force [Camelot] into the role of bosses.” The canvassers filed a complaint with the Board, alleging violations of their right to organize under the National Labor Relations Act. An essential premise of their argument was that they were employees within the meaning of the Act and entitled, as such, to protection from unfair labor practices.

An administrative law judge dismissed their complaint, ruling that the canvassers were independent contractors, not employees. Crucial to this conclusion were the judge’s findings that the canvassers were in control of their own schedules and lacked direct supervision. The judge emphasized that the canvassers were free to make important choices: whether to show up for their shifts and, during their shifts, whether to “work . . . or goof-off.” Under his analysis, these facts “strongly indicate[d] independent contractor status.”

On review, a three-member panel of the Board reversed the judge’s dismissal, finding that the canvassers were employees protected under the Act. Consistent with its longstanding approach, the Board undertook a holistic consideration of “all of the incidents of the relationship” between Camelot and its canvassers. It applied a multifactor test and concluded that nine out of the eleven relevant factors indicated the existence of an employment relationship. In stark contrast to the judge’s analysis below, the Board determined that — notwithstanding the canvassers’ “freedom to work or not work as they choose” — Camelot still imposed significant constraints on the canvassers’ choices and opportunities. The Board emphasized that the canvassers, once on the clock, worked at set times and locations. Their compensation was nonnegotiable. Detailed records of their canvassing allowed Camelot to supervise their activities with “close scrutiny.” And canvassers had no control over “important business decisions” that could affect their profit or loss: where, how, and from whom to solicit. Considered together, these facts all pointed toward an employment relationship.

The Board’s decision offers important lessons for the gig economy. By recognizing the canvassers as employees, the Board signaled its continued commitment to accommodating — and protecting — nontraditional forms of work. The flexible relationship between Camelot and its canvassers invites comparisons to the broader gig economy. And while the Board’s specific findings are highly fact bound, its broader reasoning provides useful guidance on how to categorize workers in the gig economy. In Sisters’ Camelot, the Board made clear that, despite shifting boundaries, the existing categories of “employee” and “independent contractor” are still viable — capacious enough to capture new, unconventional work patterns, but narrow enough to confer protection only on those relationships that warrant it.

The Board’s premise — a fundamental one in employment law — is that all workers fall on one side of a distinct dichotomy: employee, or independent contractor. But when it comes to gig workers, this premise has been challenged. Commentators have been quick to point out that many aspects of the gig economy — the flexible schedules, the lack of in-person supervision, the ability to work for many businesses at the same time — defy simple classification. Some decisionmakers agree, contending that the current legal framework is too rigid to accommodate the now-countless variations of work. In a lawsuit against Lyft, a federal judge lamented that the categorization of gig workers is an untenable endeavor — like being “handed a square peg and asked to choose between two round holes.” Professors Seth Harris and Alan Krueger have proposed creating a new legal category, the “independent worker,” for those who occupy the “middle ground between traditional employees and independent contractors.” Their argument is that the existing legal framework cannot adequately identify who deserves which benefits and protections under the law, creating uncertainty, inefficiency, and opportunities for regulatory arbitrage. In their view, working relationships in the gig economy are “not so dependent, deep, extensive, or long lasting” that businesses like Uber should be compelled to “assume responsibility for all aspects of . . . workers’ economic security” — that is, to take on “the role of bosses.”

What complicates this view is that, in reality, many workers in the gig economy are deeply dependent on the businesses that hire them. Harris and Krueger characterize the many laws that regulate the employment relationship as reflecting a “social compact between employees and employers,” with employees sacrificing their autonomy in exchange for some degree of economic security. Some gig workers find themselves making exactly this kind of sacrifice, but without receiving protection in return.

Moreover, Harris and Krueger premise their argument on the idea that gig workers “do not fit easily into the existing legal definitions of ‘employee’ and ‘independent contractor’ status.” Granted, the particular details of work might look different in the gig economy, but, as the Board has consistently recognized, careful consideration of the relevant factors can still uncover employment relationships where they exist. In Sisters’ Camelot, the Board’s analysis of three factors in particular — control, supervision, and entrepreneurial opportunity — shows how.

One of the most important factors indicating an employment relationship is control. Traditionally, employers have exercised control over their employees by dictating wages, hours, and working conditions. In the gig economy, none of these usual mechanisms are a given. Many gig workers today have broad discretion over when, where, and how much to work. The Board’s analysis in Sisters’ Camelot, however, suggests that such discretion does not necessarily deprive a worker of employee status. Like many gig workers, Camelot’s canvassers were “free[] to work or not work as they [chose],” but the Board concluded that “such discretion [was] outweighed by the control” that Camelot otherwise exercised over their work lives — for example, by setting their daily start and end times, requiring detailed recordkeeping, restricting their canvassing area, and disciplining them. The key inquiry for the Board was not whether Camelot controlled the canvassers’ schedules, but rather how much control it exercised when the canvassers did decide to work. The Board opted for a broad understanding of control, recognizing that, especially in nontraditional work arrangements, it can often take atypical forms.

Another factor often used to distinguish employees from independent contractors is supervision. Assessing this factor can be difficult in the gig economy, where online intermediaries dominate and in-person supervision is rare. Lack of direct supervision does not, however, preclude a worker from employee status. In Sisters’ Camelot, the Board acknowledged that the canvassers were “not generally subject to in-person supervision” — in part because it would have been “highly impractical” — but still found a “significant level of oversight” in the relationship, achieved through detailed recordkeeping requirements. Notably, the Board measured supervision in relative terms, based on what was practicable in that context. This approach offers a means of distinguishing between the many online intermediaries in the gig economy. While many of them maintain a strict hands-off model, some of them — such as Uber and Instacart — have detailed feedback mechanisms to enable remote monitoring, suggesting the existence of an employment relationship.

One final factor bearing on a worker’s status is his entrepreneurial opportunity for profit or gain. For many gig workers, a significant draw is the potential to “make good money” — conditioned, of course, on how much they choose to work. But their opportunities for profit are limited in other ways, too. In Sisters’ Camelot, the Board demonstrated a strong awareness of these constraints, stressing that the relevant test is “actual, not merely theoretical, entrepreneurial opportunity.” Although Camelot’s canvassers were free to work for other organizations, these opportunities for extra profit were outweighed, in the Board’s view, by the substantial limits imposed on entrepreneurial initiative: commission rates were nonnegotiable, and canvassers were prohibited from soliciting outside their assigned areas or for other organizations during their shifts. There was little that the canvassers could do — besides working harder, in theory — to increase their profits. The Board’s actual-opportunity test offers another means for distinguishing between the different kinds of relationships in the gig economy. On this factor, setting fixed rates, like Uber does, might indicate an employment relationship, whereas using a bidding model or allowing workers to set their own prices — like Agent Anything and Sidecar do — might not.

The Board’s analysis of these three factors makes clear that many of the distinctive features of the gig economy — the flexible schedules, the lack of in-person supervision, and the promise of entrepreneurial opportunity — do not disqualify its workers from employee status. On the contrary. When applied with nuance, as in Sisters’ Camelot, the Board’s multifactor test reveals that even nontraditional “gigs” can impose significant constraints on a worker’s autonomy. These constraints are precisely what define an employment relationship.

What will be difficult for decisionmakers, going forward, is to recognize those constraints in new and diverse work arrangements. Gig workers can fit into the traditional dichotomy of employees and independent contractors, but, as the detailed analysis in Sisters’ Camelot shows, not without close scrutiny of the facts. Harris and Krueger have argued that the classification of gig workers will require “long, costly, and uncertain legal battles,” and that persistent uncertainty about their status exacerbates the risk of misclassification, with businesses “reorganiz[ing] their work to . . . avoid providing required benefits and protections.” Reliance on complex, multifactor tests only adds to the uncertainty. The existing categories may still work, but for them to work well, legislatures, courts, and agencies may want to consider stronger decisionmaking rules — such as explicit statutory protections for gig workers or, more broadly, a default presumption in favor of employee status.

Without a doubt, the gig economy will continue to test our understanding of what “work” means. And the classification of its workers will present distinct challenges. But the gig worker is not a “square peg.” As the Board demonstrated in Sisters’ Camelot, even nontraditional working relationships can fit comfortably within the existing framework of employment.