Major legal and regulatory victories in the UK and EU should boost momentum for strengthening gig worker rights in the United States.
The Biden-Harris administration is off to a great start for workers, with a progressive incoming labor team and immediate removal of Trump loyalists at places like the National Labor Relations Board. But are they ready to take on the 21st century’s most prominent challenge — the lawless digital economy?
As the Washington Post pointed out, tackling gig work may be the administration’s most explosive labor issue. President Biden took a stand during his campaign, opposing California’s pernicious Prop 22. Now his team needs a powerful and systemic approach to governing the gig economy.
Governing the gig economy will require both a committed labor policy team and a committed digital policy team, and they will have to work together. For too long, the platform giants have exploited the space between the experts on labor law and those focused on the digital economy, cloaking themselves in claims that their product was simply technology.
The evidence of bad faith in such arguments is now well-detailed. “Technology” has been used to aggressively promote an unsustainable and exploitative business model that cranked up in the wake of the 2008 economic recession and popularized the idea that app-based gigs could be a cushion for the unemployed while the economy recovered.
The stigma of surviving off odd jobs was mitigated by the status-enhancing fantasy of belonging to the “tech sector.” In reality, corporations have used digital platforms to dismantle labor protections so that 21st century California has come to look more like Colombia or Cambodia.
Here’s a five-point plan bridging digital rights and labor rights — not just to address exploitation of platform workers, but to reverse the erosion of decent work in the United States.
1. The Biden administration’s first task is simply to do what should have been done all along: make it possible for people to survive on a single full-time job and give them access to affordable care options. The incoming administration has a made a good start by supporting a $15 minimum wage and committing to invest in the care economy.
If they don’t succeed in this, corporations will continue to win campaigns for gig-friendly regulations, as they did in California, backed by testimonials from workers who say they’ve turned to platform jobs because they can’t afford to live on the wages provided by their regular, full-time jobs or cannot afford care for their children or elderly parents.
2. We need strong Labor Department action on disguised employment and rampant misclassification. It’s time to stop indulging the bad faith argument that companies like Uber and Lyft are not employers. They have, as California courts determined in 2018, simply used technology to mask disguised employment. California should never have needed legislation to get s court ruling on a simple “ABC test” The Trump team gave employers license to misclassify. The incoming team can use its oversight power to quickly correct the record, and in the long term, strengthen federal protections to end the fiction that those controlled by apps or platforms are “independent.”
3. The NLRB needs to protect online and non-traditional organizing. As Miller and Dehlendorf point out in a great longer piece on this subject, “Using social networks and internal communications networks within corporations themselves, people are claiming virtual space to link dynamically with on-the-ground power building.”
Importantly, the NLRB ruled in 2011 that social media organizing is protected activity. Yet under the Trump administration, Google and other firms’ worker actions, such as a push to end contracts with ICE, led to the termination of those involved, with no repercussions for the companies.
On the bright side, such actions likely also stimulated more formal organizing and new unions like the recently launched Alphabet Workers’ Union. These emerging groups will need a credible NLRB at their backs, and NLRB will need to step up with more stringent sanctions against companies that surveil their employees’ online activities.
4. We need to regulate data ownership, and here is where we will need commercial and digital regulators to partner with labor regulators. The digital economy treats worker data as the property of employers. This needs to end immediately.
You can’t compel workers to provide their blood or organs to an employer and so too, the extraction of their private, personal data should be out of bounds for any company. Nor is a simple right of consent like Europe’s General Data Protection Regulation (GDPR) sufficient. We need to treat data like the resource it is, and develop citizen controls over what entities can access and how they can use digitally acquired data sets.
In situations where workers willingly provide certain data to companies, such as Uber drivers providing location information, they still need the right to contest the programming logic behind automated decision making. Workers have a right not just to the raw data they provide, but to know how companies are using it. This means companies must be obliged to share code with workers, where that code is directly relevant to their work.
The Biden administration must break the unprecedented nexus of capital concentration and big data hoarding or it will have no power to protect workers or citizens.
5. Innovative businesses that respect workers need space to flourish, and that can only happen if we take on capital concentration in the platform sector. Amazon alone has acquired enormous monopoly power over markets — and data — worldwide. The unprecedented nexus of capital concentration and big data hoarding are leading us to overall concentrations of power that leave citizens worldwide at risk.
These companies will become too big to regulate. The Biden administration must break this nexus, or it will have no power to protect workers or citizens. The way forward with respect to some platforms may be to turn them into public utilities. In other cases, governments must break data monopolies on the principle that data is part of the public “commons.” If gig companies can’t make their business model work in ways favorable to the public interest, they should go out of business and clear the field for genuine innovators who aren’t simply making their profits off scofflaw practices.
President Biden’s inaugural address was clear-eyed about the unprecedented challenges his administration will face. The digital economy today is part of the problem and not the solution. It’s not too late to change that.