it is difficult right to be concerned about the ways in which the less pleasant innovations of the gig economy, and the technology that enables them, could seep into more and more industries and jobs, a future in which “Uberization of everything” does not mean eliminating the regular employment, simply forcing you to operate in an increasingly concert-like fashion. David Weil, who served in the Department of Labor during the Obama presidency and later as dean of the Heller School of Social Policy and Management at Brandeis University, sees the expansion of informal work as part of a larger story, one he calls “fissuring.” When corporations began to offshore manufacturing in the mid-20th century, he says, they did so in part to access cheaper labor in other countries. They soon found ways to do something similar at home, outsourcing them for roles that, in the past, would have belonged to their own pool of workers. Janitors at a technology company like Apple, for example, might have been direct employees, entitled to benefits similar to those of their peers. Now they can be employed by a cleaning service with their own labor policies, breaking, or at least loosening, the legal ties between them and the company whose offices they will clean.
Weil sees companies like Uber and Lyft as “hypercracked.” They minimize labor costs by categorizing all their drivers as self-employed (people with, in theory, other jobs and other access to benefits) and presenting themselves as mere management systems that allow those workers to operate. However, given their power over almost every aspect of that job, many see these brands not as management systems but as employment systems. “A lot of the platform world wants to do things two ways at the same time,” says Weil. “They want as much control as possible over the product and service, regardless of goals related to product innovation, service and delivery, but they don’t want the complicated issues of being an employer.”
The depth of this particular fissure, the obvious way in which these platforms maximize control over workers and minimize obligations to them, has sparked multiple battles over how the law should categorize workers. In the courts and in the legislatures, workers and labor advocates have clashed with tech companies and business interests. The latter have won many victories. In 34 states, legislation has already been adopted specifically exempting “Transportation Network Companies” (TNCs) from some state and local labor standards. Gig platform Handy, which has since been bought by Angi Inc., has backed legislation that would ensure that those who find work on apps or platforms could more easily be considered freelancers; 10 states now have such “market platform” laws on the books. And a growing and well-funded lobby for platform work, the Coalition for Workforce Innovation, has advocated for a third job classification, beyond employees and independent contractors. This category would be created simply by having workers sign a contract called a “Worker Flexibility Agreement,” in which they trade protections like a minimum wage for the ability to accept outside work, providing platforms, the argument goes, for freedom of offer little by little selections of advantages and benefits to attract labor.
The strongest alternative to all of this is a standard called the “ABC test,” which gained notoriety during a class action lawsuit against a California courier and delivery service called Dynamex Operations West. In 2004, Dynamex converted all of its drivers from full-time employees to independent contractors. After much litigation, the California Supreme Court finally relied on the ABC test, which sets a high standard for considering the self-employed, to uphold a lower court verdict for the plaintiffs, sparking a flurry of political action. . The state Legislature passed a measure codifying the ABC test into law. In reaction, TNCs including Uber, Lyft and Instacart pushed for a state ballot measure, Proposition 22, that would place their drivers in a category of workers entitled to limited benefits. The proposal was approved in 2020, but has been stymied by legal challenges. Versions of this battle have occurred in states across the country, and even nationally. The House of Representatives has twice passed the PRO Act, a law focused on union organizing that also adopts the ABC test at the federal level; both times, in 2019 and 2021, he languished in the Senate. It was presented for the third time this February.
At the same time, the wide variety of work-for-hire arrangements has continued to expand, outpacing most moves to regulate or define it. Many of the newer platforms in the field actually advertise themselves as attempts to bridge the gap between flexibility and security, using gig tools to solve gig work problems. Yong Kim, the founder of a platform called Wonolo, told me that his hope is to build a new model to protect workers. Kim came to the United States from South Korea as a teenager and has memories of walking into stores holding “help wanted” signs, only to be turned away: “I couldn’t get a job at a gas station,” he told me, “because of the way I looked and the way I talked.” His platform connects workers with companies that need on-demand staffing. “Most of the platforms based on the gig economy are connecting workers with consumers,” he says. “If someone needs food delivered to their home, they use it. In our case, one side is actually business. There are companies like Hello Fresh and Coca-Cola that also have to think about the well-being of the workers, can we design it in a new way and innovate around that?