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Tuesday, July 23, 2019

Rapid Changes in Law & Scholarship: Gig Work Edition

I thought I’d take a short break from my junior interdisciplinary prawfs series (here are posts 1 and 2) to write about something from one of my substantive areas.

 When I started writing about employment regulation in the gig economy—around 2014, back when it was fairly reliably called the “sharing” economy—it felt like the options for resolving the problems of gig work through classification doctrine were pretty limited. I remember initially floating the idea of a category in between independent contractor and employee (along the lines of the “dependent contractor” concept that crops up periodically in the USA and that actually exists outside the USA) and having more than one person respond that this was so out in left field as to not be worth pursuing.

Now, however, the overwhelming consensus among labor & employment law scholars, to say nothing of workers’ advocates, seems to be that it’s self-evident gig workers are employees—forget half measures like the dependent contractor. What’s more, (some) state actors are (very slowly) starting to agree—see the passage of AB 5 in California, codifying the ABC test for state law and all-but-guaranteeing that most gig workers will be considered employees.

I’ll admit I’ve experienced some minor whiplash from this sea change in opinion, even though I’m broadly sympathetic to it and even though this pace of change is hardly unusual (for instance, it sounds like something similar may be happening with the prison abolition movement among crim folks). I’m also not necessarily convinced that employee status for gig workers will “settle” any better than independent contractor status did, although if I have to choose between two ill-fitting options I prefer the more worker-protective one. Among other things, as I’ve argued with respect to gig workers—and as Veena Dubal has also argued with respect to taxi drivers and is going to argue with respect to Uber drivers in an awesome chapter for an edited volume I’m putting together (on which, more soon)—worker ambivalence regarding employee status is real.

Going back to the shift regarding gig worker classification: there’s lots to puzzle over with this kind of rapid scholarly and legal change. How common is it, really? Is there some sense in which these kinds of shifts are accelerating? And—especially pressing for me as someone who needs to collect and analyze raw data in addition to engaging with legal scholarship and material—what does all this mean for the viability of various kinds of empirical legal scholarship?

To elaborate on that last point, this isn’t just a challenge for ethnographically or, more generally, qualitatively-informed scholarship. For the first few years of the gig economy, it was hard to conduct large scale quantitative studies because there were no readily available data sets. The companies would not share data except with a select few researchers (and when they did share, that fact was regularly underscored in discussions of those researchers’ results). This meant that even economics-oriented work like Ben Edelman’s well-known Airbnb discrimination study didn’t appear until 2014–15, around 6–7 years after Airbnb was founded. To the extent we think various forms of data are useful in formulating policy should this kind of acceleration be worrisome to interdisciplinary legal scholars?




Posted by Deepa Das Acevedo on July 23, 2019 at 09:27 PM | Permalink


Interesting and important. But assuming that time is needed for observing sufficient data. Assuming then, that the Internet as a sort of " gig field " is good and relevant ( Internet as a whole ). We have a span of 25 years approximately ( suppose from 1995 - 2019 ). Can one observe it in retrospect, and argue, that the Internet, has really legally changed something ? Maybe in terms of implications and magnitude. But less it seems, in substantive terms. Defamation or free speech, are only implied differently ( suppose rapid dissemination of information as game changer ) but less it seems in substantive terms.

Why ? because, what counts, is a given case. After problems emerge, then, law becomes the law. And the problems are typically always the same. The " control based " test for example, is only a title. But in reality, an employer, must be responsible for employees. He has the control, he has the means, he has the knowledge, he must educated the employee concerning precautions and safety at work. He is the professional in charge.

So, in tort or recklessness terms as illustration, how one employee can become accountable if he doesn't have the: experience, the knowledge, the legal responsibility etc..? So, if consumers for example would complain. Regulator can't approach employees basically. But, through unions or employers, control and regulate the market as a whole.

So, technology can change things, but rather in terms of implication and magnitude, but, problems are the same. Let me quote justice Gorsush in the recent famous case of Apple ( Apple v. Pepper ):

"Under ancient rules of proximate causation, the " general tendency of the law, in regard to damages at least, is not to go beyond the first step "

So, the issue, of who is responsible, the more remote wrongdoer or the utmost closest one, responsible in terms of proximate causation, is an ancient problem, and has in accordance ancient legal solutions. Up to this day. No matter whether it is the Iphone, or the classic land lord as quoted there.


Posted by: El roam | Jul 24, 2019 7:45:54 AM

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