Veena Dubal –
The “gig economy” is one place where organizing outside of traditional trade unions is undoubtedly happening in surprising and perhaps unexpected ways. For example, on May 8, 2019, a group of independent app-based drivers in Los Angeles called the LA Rideshare Drivers United organized and launched an unprecedented international picket and work stoppage against Uber and Lyft. They were joined by similar driver groups all over the United States (including in New York City) and as far off as Nigeria, Australia, and the United Kingdom. This was an incredible feat given that, as my co-authors and I have argued, gig workers—particularly those who work for a platform-based company—face unique hurdles to organizing. Among other factors, these workers are unusually dispersed, atomized, and differentially dependent on gig work.
Having studied gig workers for over a decade, I was surprised by the magnitude of the May 8 strike. Two things stood out to me. First, I was struck by the large number of driver-led groups in the U.S. which participated in the coordinated work stoppages. Drivers’ groups from Boston, San Diego, Los Angeles, Chicago, New York City, and Washington, D.C. issued a joint statement calling their action a “strike” (not just a rally or protest) and announcing themselves “united as one joint council of grassroots driver labor organizations with the shared goal of winning job security, livable incomes, and respect for App drivers.” Not all drivers’ groups that participated in their regions signed onto this statement—presumably because of the legal risks of calling this action a “strike.”
And this was the second remarkable thing: these workers were openly mobilizing absent legal sanction. Their radical vision for workplace power is what labor historian Staughton Lynd might call “solidarity unionism”—concerted activity which is informed, not necessarily by law, but by practices of democratically-informed mutual aid.
At the time of the May 9th strike, the employee status of Uber/Lyft drivers under the NLRA was pending investigation. This meant that large numbers of organized drivers in cities across the country were willing to act together despite potential legal restrictions on their coordinated activities. Indeed, just days after the strike, Trump’s NLRB General Council issued the non-binding advise memo stating that Uber drivers are independent contractors uncovered by federal labor law. The response of both the LA Rideshare Drivers United and the New York Taxi Workers Alliance—two signatories to the joint statement—was that the opinion would only inspire more self-activity beyond legal boundaries. Bhairavi Desai, the director of the NYTWA said, “In my experience, the more rights you take away from workers, the more militant the organizing becomes.”
But this militant solidarity unionism is not the only vision that has emerged over the last six years to address the problems faced by workers in the gig economy. In addition to the nascent, grassroots organizing and collective action taking place among and between workers, two other attempts at creating viable worker representation have surfaced in the “gig economy”—one envisioned by regulators through legislation and the other by Uber through private contract.
Both are instructive for the current debate around gig worker associations in California.
The Seattle City Council manifested the legislative vision by passing a law granting drivers the right to collectively bargain in spite of their disputed status as independent contractors. This municipal attempt—first passed by the city legislature in 2015—was stymied by lawsuits and finally a 9th circuit decision in 2018. However, the 9th circuit’s decision had, in the words of Professor Charlotte Garden, a “silver lining” in that “it t[old the state of] Washington exactly how it could [re-write the Seattle law and] authorize collective bargaining by drivers.” And as Professor William Gould has since pointed out, because of this decision, states could “pass a statute tomorrow” regulating the collective bargaining rights of Uber and Lyft drivers. This may be what Uber and Lyft are most worried about in California and what undergirds their current attempts at “compromise.”
The second effort to support gig workers came not through regulators but through a private agreement between a trade union and Uber. Facing a slew of misclassification lawsuits beginning in 2013, Uber in 2016 approached unions in both the U.S. and in Europe to see if they could privately contract to create a company-funded “worker association.” A regional branch of the Machinists Union in New York City agreed, stating that it was the most practical way—in an immediate sense—to improve the lot of drivers. While the exact terms of the contract have never been made public, reports indicate that Uber pays an undisclosed sum to the Machinists—which uses the money to fund the “Independent Drivers’ Guild” or the IDG. The IDG has not been elected by workers, and it was formulated amidst an upsurge of independent worker organizing. After the formation, the worker association agreed (for a period of five years) to not contest the status of drivers and to not go on strike.
The example of the IDG is especially useful in thinking about the efficacy of the type of workers’ association that Uber and Lyft might attempt to legislatively achieve in California. Supporters (and even some skeptics) of the IDG’s “company union” model maintain that this kind concession may be necessary to curb the detrimental effects of a growing sector with powerful, wealthy companies and such dispersed workers. And indeed, over the past three years, the IDG has claimed a number of “pro-driver” wins and innovations in New York City, including telemedicine for members, in-app tipping, and a private deactivation appeals panel. Organizers and leaders of the IDG appear genuinely earnest in their efforts to work for drivers, and the association maintains that despite its funding, it strives to be “independent” of Uber.
But, the success of this company-funded worker association remains contested. As Noam Scheiber has pointed out in the New York Times, “The guild…regularly takes credit for changes that it appears to have had little to do with, or that the company began making before the guild existed.” The “tele-medicine” benefits, for example, come via a Black Car Fund and are not specific to Uber drivers. Also, in-app tipping was a concession that Uber appeared ready to make before the advocacy of the IDG (the company agreed to it in an April 2016 legal settlement which was later thrown out by a judge), and Uber willingly rolled out the same tipping option outside of New York. Finally, the for-hire minimum wage ordinance in New York City, for which the IDG claims credit, was heavily championed by the New York Taxi Workers Alliance who pushed for the ordinance to apply to all drivers in the sector (not just app-based drivers). The ordinance also came on the heels of numerous driver suicides. (Notably, the NYTWA also lobbied for and achieved a temporary vehicle cap which the IDG, like Uber, stood staunchly against for some time.)
Other significant achievements of the IDG also seem circumscribed by the relative power of Uber and the worker association’s inability to collectively bargain with the company. The deactivation appeals procedure, for example, has been decried by the IDG itself, with organizers calling it “unfair” and appealing to the city’s regulatory body to create an effective one.
In a recent regulatory hearing, former TLC regulator Meera Joshi asked an IDG representative: “What is IDG’s agreement with Uber regarding deactivation? Because my understanding is when this group was formed, they were going to have some more say, through the group, in the deactivation process.” The IDG organizer answers, “There is a proper deactivation process going on, but the system is not fair.” He goes on to implore the regulatory body to implement its own mechanism for drivers to contest deactivation. In the same hearing, another IDG organizer begs the regulator, “You’re our only voice. Right now, you’re our only choice. If we can’t count on you, who will we be able to count on?” (my italics).
If this Uber-sanctioned worker association understands the state regulator as the “only voice” of drivers, then an analogous worker association in California cannot and will not be an effective way to achieve anything for workers.
Against Company Unions in California and Beyond
Based on both my research and my experience organizing “gig workers” before the explosion of the gig economy, I am both skeptical of the company-influenced “worker association” approach and extremely concerned that the “gig economy” (which is still such a small fraction of the larger labor market) will be used to further “deradicalize” labor laws in California and beyond.
This debate between the possibilities of company unionism (via a worker association) and solidarity unionism (exemplified by the grassroots organizing of Uber and Lyft drivers in California, including the LA Rideshare Drivers United) will necessarily continue amongst gig workers, policy makers, gig companies, and trade unions over the coming months. In echoing Professor Lichtenstein and the many other labor scholars who have eschewed company unions and their role in staving off independent worker organizing in the early 20th century, I argue that any state law to facilitate collective bargaining should heed the kinds of radical grassroots organizing that workers are showing us are possible.
As workers themselves fight growing inequality and decreased access to legal rights through solidarity unionism (including democratic direct actions and work stoppages), news laws and policies should seek to liberalize the kinds of concerted activities available to labor, not tie the hands of vulnerable workers.
Uber and Lyft (and many other gig companies) have shown us for over half-a-decade that capital has no motivation to share power unless they are forced to do so. In California, with the right mix of law, independent organizing, and backbone from the broader labor community, these companies may be compelled to do just that. If an uncompromised version of AB5 passes and is signed into law, the impact of this power sharing could reverberate across sectors—contributing to the construction of a robust counterweight to our corporatized political economy. On the other hand, if the legislature capitulates to these gig companies, the results could just as easily devastate the potential—now or in the future—of fighting the political, economic, and social influence of capital in our everyday lives and communities.
Veena Dubal is Associate Professor of Law at U.C. Hastings College of the Law, San Francisco.