Dear Readers,
The “gig economy” refers to a free market system in which temporary positions are increasingly common; and organizations hire independent workers for short-term commitments. Traditionally, the term “gig” was used by musicians to define a performance engagement. Today, it has become a more general term to refer to a form of employment relationship.
Examples of gig workers include freelancers, independent contractors, project-based workers and temporary or part-time hires. Mobile applications and other digital technologies are often used to connect customers with gig workers (as anyone who has ordered a mobile take-out order will attest). The use of such technology has served as a catalyst for the rise of this growing common practice.
Obviously, such a fundamental shift in employment relationships will raise certain regulatory concerns. The pieces in this Chronicle deal with these issues.
Terri Gerstein & LiJia Gong note that as the the gig economy has expanded, New York, and Seattle have become leaders in regulating working conditions in the platform economy in recent years. Other localities have also brought enforcement actions to enforce platform workers’ rights, recovering millions of dollars for workers. Within the federalist system of the United States, cities and localities may be well-suited to advance protections for platform workers. City action may be well-suited because a high concentration of platform workers live and work in urban areas, and such communities are often disproportionately affected by traffic and congestion caused by platform work.
Michael H. LeRoy notes that technologies are rapidly evolving. However, there is growing potential to deskill or obsolesce the work performed by professionals and managers. Basic laws such as the Fair Labor Standards Act and National Labor Relations Act— passed in the 1930s — are founded on traditional conceptions of individual discretion and supervision. As artificially intelligent technologies limit the need for having employees direct the work of others or use their expertise, there is growing potential for these employees to fall outside the boundaries of these laws. Technologists should consider these displacing and disruptive effects; and lawmakers should begin to anticipate significant dislocations caused by AI, bionic, and humanoid technologies.
Elspeth Hansen reviews the Antitrust Division of the Department of Justice’s amicus brief in an appeal before the National Labor Relations Board; and weighs in on a potential NLRB decision regarding who is an “employee” or an “independent contractor” under the National Labor Relations Act, a ruling that may have significant implications for the gig economy. Although the Antitrust Division did not take a position on the criteria that should be applied to determine if a worker is an employee or an independent contractor, the brief reflects that the Division considered a broader definition of an “employee” to generally be pro-competitive. The article examines the implications of the Division’s arguments and considers how the Division may proceed with respect to the gig economy.
Scott Nelson & Michael Reed note that the number of Americans taking on freelance work has been on a constant rise since 2019. The COVID-19 pandemic and the ensuing so-called Great Resignation that followed seem to have hastened the pace, as many workers who once held traditional jobs began freelancing. As more workers join the gig economy, a question that has lingered since the beginning — whether gig workers should be classified as independent contractors or employees — is taking on a growing level of importance. The article further discussion impacts on independent contractors, implications from the NLRB, federal and state laws, and important state legal decisions.
From a European perspective, Despoina Georgiou notes that the European Commission recently published draft Guidelines on collective bargaining for solo self-employed persons. These Guidelines aim to remove existing competition law restrictions to collective bargaining for vulnerable solo self-employed people. The piece provides an overview and an initial, critical, assessment of these draft Guidelines.
Finally, from an Australian perspective, Tess Hardy, Anthony Forsyth & Shae McCrystal survey two recent regulatory developments which highlight the critical role of competition law and voluntary industry standards in regulating gig work. In particular, the class exemption for small business collective bargaining that was recently introduced by the federal Australian Competition and Consumer Commission presents important opportunities for workers to enhance working conditions via collectively bargaining with platform companies.
These pieces will provide ample food for thought as the regulation of the gig economy grows in relevance and importance in years to come.
As always, many thanks to our great panel of authors.
Sincerely,
CPI Team
