With a new bill, gig-economy companies aren’t just targeting their own workers. They’re coming for everyone.
Ever since Uber and Lyft successfully bankrolled Proposition 22 in California, a ballot measure that carved gig workers out of traditional employment and all the rights and protections it conveys, those companies and others have been trying to replicate the victory in other states. They’ve followed a similar model in each place, crafting legislation or ballot measures that would deem rideshare and delivery drivers exempt from employee status but purport to offer them other benefits.
Now Uber, Lyft, and a coalition of large corporations are expanding their quest to rope off their workers from labor laws, and it’s dramatically more ambitious. With the backing of the Coalition for Workforce Innovation, a lobbying group made up of not just app companies but household names like Google, Kroger, and Target, Democratic Rep. Henry Cuellar and Republican Reps. Elise Stefanik and Michelle Steel introduced legislation, the Worker Flexibility and Choice Act, in late July that wouldn’t just help Uber and Lyft treat their drivers as independent contractors, but exempt virtually any American worker from minimum wage and overtime protections.
This federal foray goes far beyond the state-level bargains these companies had attempted to eke out. The legislation would deem any worker who signed a so-called “worker flexibility agreement” to be an independent contractor for the purposes of the Fair Labor Standards Act, which requires employers to pay minimum wage and overtime. “This bill would dramatically upend labor standards,” said Brian Chen, senior staff attorney at the National Employment Law Project.
The bill is unlikely to become law anytime soon; it hasn’t even been assigned to a committee yet. But these companies have now shown the hand they ultimately hope to play. The argument that app companies needed a new labor model for a new kind of work fades away when their new model applies to any and every American worker. They’ve shown that their ambitions are not just to exempt gig workers from employment law—which they claim is necessary to preserve their workers’ “flexibility”—but to allow any employer to wash their hands of labor standards.
Compared to what the companies were trying to broker in state legislatures, the Cuellar bill “is very, very different and much more ambitious,” said Marshall Steinbaum, assistant professor of economics at the University of Utah. The ultimate goal is still the same: to classify certain workers as independent contractors, not as employee. But instead of narrowly tailoring it to so-called gig workers—Uber drivers, DoorDashers, and the like—this bill would apply to any worker in any industry who signed such an agreement.
“Any employer in the private sector could embrace this model,” said Veena Dubal, law professor at the University of California, Hastings. “This is everyone. This is literally anyone.” And there would be a clear incentive for companies to make use of it. Without the requirement to pay at least minimum wage, employers could pay as little as they wanted, devoting less of their profits to their workforces. Without overtime requirements, they could force their workers to put in longer hours without having to pay them anything extra. While these agreements, were the bill to become law, might at first be most prevalent in low-wage service sector work, where workers already have little power to push back against restrictive working conditions and where wage theft runs rampant, they almost certainly won’t stay there. They would be an attractive option for any employer, including “more professional or managerial-style jobs,” Chen said.
