It’s hard not to be apprehensive of the ways in which the least pleasant innovations of the gig economy, and the technology that enables them, could seep into ever more industries and jobs — a future in which the “Uberization of everything” doesn’t mean eliminating regular employment, just forcing it to operate in increasingly giglike ways. David Weil — who served in the Labor Department under President Obama and later as dean of the Heller School for Social Policy and Management at Brandeis University — sees the expansion of gig working as part of a larger story, one he calls “fissuring.” When corporations started offshoring manufacturing in the mid-20th century, he says, they did so in part to access cheaper labor in other countries. Soon they found ways to do something similar at home, contracting out for roles that would, in the past, have belonged to their own pool of workers. The janitors at a tech company like Apple, for example, might once have been direct employees, entitled to benefits similar to those of their peers. Now they can be employed by a cleaning service with its own labor policies — severing, or at least loosening, the legal ties between them and the company whose offices they will clean.
Weil considers companies like Uber and Lyft to be “hyper-fissured.” They minimize labor costs by categorizing all their drivers as independent — people with, in theory, other jobs and other access to benefits — and casting themselves as mere management systems that allow those workers to operate. Given their power over nearly every aspect of that work, though, many see these brands not as systems of management but of employment. “So much of the platform world, they want to have things two ways at the same time,” Weil says. “They want as much control as they possibly can of the product and the service — whatever the targets are related to product innovation, service and delivery — but they don’t want the messy problems of being an employer.”
The depth of this particular fissure — the obvious way these platforms maximize control over workers while minimizing obligations to them — has sparked multiple battles over how the law should categorize laborers. In courts and in legislatures, workers and labor advocates have butted against tech companies and business interests. The latter have scored plenty of wins. In 34 states, legislation has already been adopted that specifically exempts “Transportation Network Companies” (TNCs) from some state and local labor standards. The gig-working platform Handy, which has since been purchased by Angi Inc., has backed legislation that would ensure those who found jobs on apps or platforms could more easily be considered independent workers; 10 states now have such “marketplace platform” laws on the books. And a growing, well-funded lobby for platform work, the Coalition for Workforce Innovation, has argued for a third labor 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 away protections like a minimum wage for the ability to take outside work — thus giving platforms, the argument goes, freedom to offer piecemeal selections of perks and benefits to entice labor.
The strongest alternative to all of this is a standard called the “ABC test,” which gained notoriety during a class-action suit 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 ultimately relied on the ABC test — which sets a high bar for considering workers independent — 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 worker entitled to only limited benefits. The proposition passed in 2020, but has been hindered 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 a federal level; both times, in 2019 and 2021, it languished in the Senate. It was introduced a third time this February.
At the same time, the sheer variety of gig-working arrangements has continued to expand, outpacing the speed of most moves to regulate or define it. Many of the newest platforms in the field actually bill themselves as attempts to bridge the gap between flexibility and security — using the tools of gig work to solve the problems of gig work. Yong Kim, the founder of a platform called Wonolo, told me his hope is to build a new model for protecting workers. Kim came to the United States from South Korea as a teenager and has memories of walking into stores with 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 spoke.” His platform connects workers with businesses in need of on-demand staffing. “Most of the gig-economy-based platforms, they are connecting workers with consumers,” he says. “If someone needs food delivered to their house, they use it. In our case, one side is actually businesses. 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?”