by Sanjukta Paul
As questions of economic justice and fairness have moved toward center stage in recent years, a seemingly technical legal issue that turns out to be a kind of microcosm of many of those questions has also emerged from obscurity. Economic activity that exists in the hazy space where labor regulation and market regulation intersect presents a stark question: when the people engaging in that activity act collectively to better their circumstances, should such collective action be protected by the law (as labor law would suggest), or prosecuted by it (as competition or antitrust law would suggest)? The problem of precarious or contingent work, which is generally on the rise the world over,[i] has brought renewed relevance to that question.
One of the most visible manifestations of precarious work is in the so-called on-demand or gig economy, exemplified by companies such as Uber. Companies in this sector generally argue that their growth is due to technological innovation, while many labor and community advocates argue that is largely due to the avoidance of socially beneficial regulation, which in turn enables them to undercut existing businesses. These companies also take the position that people providing the services in which they deal (such as cab rides) are not employees, but independent businesspeople, and thus that labor regulation does not apply to them. One response has been to argue, in the courts and the legislatures, that such workers are legally employees, and have been misclassified by the companies engaging their services. The City of Seattle recently took a different and more direct approach, enacting an ordinance granting collective bargaining rights to drivers for taxicab, limo, and “transportation network companies” (encompassing Uber, Lyft and other companies in the on-demand sector) who are classified as independent contractors rather than employees. The approach of the policy-makers and advocates who passed the Seattle ordinance is novel in that it guarantees these rights to workers directly, rather than endeavoring to first establish their employee status, whether by legislation or by litigation. As expected, an industry group (the United States Chamber of Commerce, no less) has now filed a lawsuit challenging the ordinance on grounds that it is barred by antitrust law and by the National Labor Relations Act.
