During the last decade, technology has contributed to widespread and significant changes not only in how work is performed but also in the structure of work itself. In only the past few decades, entirely new career paths and ways of working have been created. From rideshare to crowdsourcing, digital labor platforms have created new markets for labor that previously did not exist, matching customers and service providers. Work is more global than ever before, and many people work in a completely online environment. During the pandemic, remote work allowed companies and workers to manage health and safety concerns, with praise for the additional flexibility work from home afforded workers. These accelerated changes, however, have had serious consequences, and, in some instances, they have been used to undermine worker protections and benefits. The most significant cautionary tale concerns the gig economy. In the last decade, digital labor platforms have tried to opt out of the labor and employment laws, created legal uncertainty, and raised concerns that such efforts could undermine labor protections for workers more generally. The trend toward the informalization of work has a serious negative impact on gig workers and their families, who do not receive the accustomed benefits or protections that workers in the traditional economy currently receive.
With the rise of the platform economy, courts, policymakers, and voters around the United States and the world have all been grappling with the question of whether gig workers are employees or independent contractors. Employees are typically seen as dependent and have little bargaining power, whereas independent contractors are seen as savvy business owners who can stand up for themselves and set their own rules. This division in the law is ancient and traces back to Roman law, where one could contract for time worked (location operarurm) or a specified result (location operis). This longstanding bifurcation has major implications for worker rights, as employee status is an important gateway for receiving the protection of labor and employment laws. In most parts of the world, only employees can organize and bargain collectively in a union; enforce minimum wage and hour laws; be eligible for the protection of workplace safety laws; bring claims for employment discrimination; and be eligible for unemployment insurance.
Gig work, however, has challenged this binary divide. Traditionally, classification as an employee depended on multiple factors focused on control over how work is performed. Gig work, however, promised that jobs would come to workers over their cellphones that could be done at the workers’ convenience. Over the years, however, gig workers have been accorded less scheduling flexibility. Most digital labor platforms use GPS or other tracking software. Platforms implemented these systems to make matches and provide timely service, but they also have resulted in de facto worker surveillance. Both crowd work and location-based gig work also rely on customer ratings in order to evaluate the quality of the work provided, often down to the most minute detail of how the work is performed.