This morning, The American Prospect published a longform piece by Steven Greenhouse on efforts by Uber drivers and other gig economy workers to assert basic workplace rights, entitled “On The Road to Nowhere.”  Greenhouse describes the rise of Uber concurrent with that of the gig economy, and how the “unusual employment model” of driver-company interactions via smartphone application has complicated and called into question traditional notions of a company’s responsibilities to its workers.  Noting that critics of Uber characterize the company’s classification of workers as independent contractors as a shrewd effort “to evade all of an employer’s traditional legal responsibilities and obligations, while enjoying all the benefits of being an employer,” whereas proponents see Uber as promulgating a genuinely unique employment model, Greenhouse turns his attention to the growth of Uber and efforts by executives, drivers, lawyers, politicians and others to respond to the workplace law and policy questions it implicates.

Greenhouse first describes the rapid expansion of Uber and its successful attack on the taxi industry, often despite Uber’s questionable legality and lack of regulatory oversight.  He then describes the plight of UberX driver John Billington, who characterized Uber’s driver solicitations as misleading with respect to potential income and noted that Uber makes more money than he does off of his rides after fees.  Billington joined a misclassification suit against Uber because “they treat us like employees, but we get none of the benefits,” as he lacks the basic protections and benefits afforded employees.

Greenhouse next contrasts Uber’s claims regarding the importance of flexibility to independent contractor drivers with findings indicating that drivers who become aware of the protections and benefits that come with employee status then favor a finding that they are in fact employees.  Describing California’s “right to control” test for employment status and variants in use in other states “weighing whether the worker’s role is entrepreneurial,” Greenhouse notes Professor Sachs’ conclusion that Uber’s business model leads to an unambiguous finding that Uber is an employer of its drivers:

Benjamin Sachs, a labor law professor at Harvard, says, “The more I learn about Uber, the clearer it becomes to me that it is a relatively typical employment relationship and ought to be treated as such.”  In his view, if Uber’s drivers were truly independent contractors, Uber would give them more freedom, for instance, to do rides only to and from the airport or wouldn’t bar them from giving their phone numbers to passengers so they can give them rides outside the Uber system.

Other scholars and policy experts quoted concur with Professor Sachs, finding that Uber acts as an  employer.  Greenhouse also notes Uber’s warnings that a finding of employee status for drivers would have grim consequences for driver flexibility as well as Professor Sachs’ disagreement with any conclusion that employees cannot work legally flexible hours.  UberX driver Inder Parmar then describes the adverse impact of fare cuts and the recruitment of new drivers on his ability to earn a sustainable income as a driver.

Finally, Greenhouse turns to the worry expressed by labor experts and a growing number of gig economy firms “that many on-demand workers, especially the full-time ones, receive no benefits— neither health insurance, nor paid sick days, nor unemployment insurance.  He notes disagreement over to what degree the debate over employment status is about the ability of drivers to unionize and the different responses by companies (Uber’s characterizing of most drivers as using Uber for limited hours as compared with the statement signed by other companies calling for an elaborate system of portable benefits for gig workers.)  A system of “portable, pro-rata benefits” would purportedly cover many of the benefits associated with employment status.  On the other hand, Seattle and other cities are considering legislation that would allow Uber drivers to unionize even without employment status.

Greenhouse concludes as follows:

When one cuts through all this maneuvering and friction, it becomes clear that Uber drivers and their various allies are pursuing three strategies at once to make the company treat them better—have courts and the NLRB rule that the drivers are employees, have states and cities give them collective bargaining rights as independent contractors, and create a pro-rata benefits pool for app-based drivers and other gig-economy workers.  While these efforts could pose a major challenge to Uber’s business model and bottom line, it could finally give Takele Gobena and tens of thousands of other drivers, as he put it, a “way to solve our problems.”