2021 Articles

Porn Work, Independent Contractor Misclassification, and the Limits of the Law

Berg, Heather

This Article explores independent contractor misclassification through the lens of porn performance. As elsewhere in the gig economy, ubiquitous misclassification allows porn employers to extract maximum profits and enact significant levels of workplace control while also avoiding compliance with standard workplace protections. This Article argues, however, that remedying that misclassification with employer acknowledged and state enforced employee status is not the clean solution many outside the industry imagine it to be. It cautions against recent efforts to refine the qualifications of independent contractor status to meet the realities of the gig economy more broadly. Most performers would rather have no bosses at all than bosses disciplined by a still weak system of worker protection, and a pro-worker regulatory approach should take this desire seriously. Rather than reinforcing artificial boundaries between workers and contractors, this Article advocates a policy approach which supports worker autonomy and detaches benefits and protections from employment status.