Rigid Rideshares and the Driver Flexibility Myth

Authors

Seth Goldstein

Document Type

Note

Abstract

(Excerpt)

In 2018, Uber, Lyft, and similar organizations spent $224 million to ensure that Proposition 22 ("Prop. 22") passed in California, reclassifying gig workers as independent contractors, but with some rights not typically guaranteed to independent contractors. Through the most expensive ballot measure in U.S. history at that point, Uber and Lyft argued that to preserve flexibility for drivers, they must remain as independent contractors under the law. However, Prop. 22 did not increase driver benefits nor provide any assurances of flexibility. Many workers in California "regret casting their ballots for Prop. 22" and "feel deceived" by Uber and Lyft. Though the future of Prop. 22 is still in question, the reality for drivers after Prop. 22 continues to be dismal.

Over the last ten years, Uber, Lyft, and other Transportation Network Companies ("TNC"}—companies that maintain digital applications that match potential riders with drivers in real­-time—have consistently lobbied for legislation codifying TNC drivers as independent contractors, allowing for driver exploitation. The main argument TNCs employ is that drivers must be classified as independent contractors to retain work flexibility. This Note will argue that TNC drivers do not have the independence and flexibility that TNCs tout due to algorithmic management and a push toward shift work, and that even if they did, there is nothing under the current law that would prevent employee drivers from having flexible work arrangements. While existing literature discusses the structure of TNCs and the realities for TNC drivers, it overlooks the causal connection between the inaccuracy of the legal presumption underlying TNC claims of flexibility and outcomes for drivers. This Note highlights that the flexibility narrative does not apply to many in the gig economy and the perpetuation of this myth further harms TNC drivers.

Part I of this Note will briefly review the background of the independent contractor exemption to labor and employment laws in the United States. This will include the legislative history and remedial intent of the Fair Labor Standards Act ("FLSA") and National Labor Relations Act ("NLRA"). Part II of this Note will focus on the ways that TNCs have garnered support and societal reliance on the flexibility narrative. This narrative has strong currency among current and prospective drivers, the general public, legislators, and judges.

Part III of this Note will take a critical lens to the flexibility narrative to show that it has little merit given the realities of work for TNC drivers. TNC drivers have an inherent lack of agency over their schedule, location, and performance of work due to TNC incentives toward algorithmic management and shift work. Then, this section will examine the narrative under current law to show that employee status does not preclude flexibility and that the narrative perpetuates a conclusion that defies logic. Part IV of this Note will then analyze ways that rideshare driver advocates can respond to the flexibility narrative and address its flaws.