Ride-Hailing Drivers as Autonomous Independent Contractors: Let Them Bargain!

Abstract

"Autonomous" workers include most gig-platform drivers, like those working globally for Uber and Lyft, who are usually classified as independent contractors and are ineligible for labor protections and benefits. The "new economy" and its business model, with its fissurization and increased use of contingent and outsourced workers hired as independent contractors, provide employers flexibility and lower costs by shifting labor costs to the workers. Many of these workers operate more as employees rather than genuine independent contractors or self-employed entrepreneurs, causing lost employee labor benefits and costing the government billions of lost tax dollars. Legal attempts continue to classify these workers as employees by means of adjudication or legislation interpreting the legal test of "control" to have them fit into the traditional employment relationship. California recently passed a law using a three-prong test to allow drivers who are dependent on a primary hiring company to be presumed as employees with full rights and benefits. Still, there are many drivers who will be independent contractors. However, the City of Seattle is trying an approach different from expanding the "employee" definition and has embraced the market practice of the employers' use of independent contractors, and has legislatively provided the drivers, as independent contractors, with a voice through collective bargaining, wherein they could gain labor rights and benefits. Issues of federal preemption and antitrust limitations are discussed, and future legislation at the state or local level looks possible. The choice provided employers is that labor rights are provided to their workers as employees or as independent contractors. This Article proposes a model of granting labor rights to the ride hailing drivers by legislation at the state or local government level that stays under the legal radar of federal preemption and meets the requirements of the antitrust law. Comparisons will be made with global trends and experiences in ...