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Cynthia Estlund, Wilma B. Liebman
What is the legal status in the United States of collective bargaining by self-employed workers? The question is complicated by ongoing disputes under a plethora of federal, state, and even local legislation over the definition of employment and misclassification of employees as self-employed contractors. Disputes over whether “employee” status is the appropriate gateway to worker rights, protections and benefits, are not new. But new technology-enabled business models and modes of engaging workers— especially the Uber phenomenon and the explosion of the gig economy through digital platforms—have aggravated the dilemmas, brought them into the public eye, and preoccupied labor law scholars for several years.
There’s no escaping those disputes over employee status, and we will return to them below. But we’ll focus chiefly on the legal rights and freedoms of workers who are independent contractors and not “employees” within the meaning of the National Labor Relations Act (NLRA). Those individuals, by definition, have no federal statutory right to engage in concerted activities and collective bargaining under the NLRA. As such, state and local government efforts to create collective bargaining rights for them should not be precluded under federal labor law preemption principles. On the other hand, without an appropriately-structured state authorization of collective bargaining, those workers’ efforts to bargain collectively—at least if they address the price of their labor—might well violate the federal antitrust laws, and may give rise to criminal and civil liability and to judicial injunctions.
Antitrust law and labor law establish opposite baseline principles— competition versus coordination—for their mostly separate domains: Federal antitrust law presumptively prohibits economic coordination, and especially “horizontal” coordination, among legally distinct market actors to restrain competition.
Federal labor law protects collective bargaining, and many concerted activities in support of such bargaining, among statutory “employees.” Independent contractors who join forces to bargain collectively have to fit either within the space that arguably lies in between those domains—that is, in a broad interpretation of the “statutory labor exemption” to antitrust liability—or in one of the other safe harbors from antitrust liability.
The conflict between collective labor activity and antitrust law that arises at the periphery of federal labor law came to the fore in two recent controversies in which Uber played a central role. First, the City of Seattle’s innovative effort to extend collective bargaining rights to Uber drivers and other drivers-for-hire ran aground in the face of an adverse antitrust ruling by the Ninth Circuit Court of Appeals. More recently, California’s legislative expansion of the state law definition of “employee” to include most platform workers was superseded, and an anticipated effort to extend collective bargaining rights to those workers was obstructed, by Uber’s successful referendum campaign for Proposition 22.
Despite these setbacks, which we will describe below, efforts by independent workers to bargain collectively, and by cities and states to allow such bargaining, are bound to continue, as are legal and political challenges by the entities that hire those workers.
This article seeks to map the existing safe harbors from antitrust liability in U.S. law for concerted activity by independent contractors, and to locate various strategies of concerted activity on that map. It suggests that the seemingly growing ranks of independent contractors—especially those who sell their labor to one or two powerful firms through digital platforms or otherwise—are reenacting on a much smaller scale the pre-New Deal history of organized labor in the United States, for which antitrust law and its common law precursors posed the major legal hurdles to unions’ legitimacy and freedom of action. Workers are again contesting the appropriate role of competition, and asserting the legitimacy of coordination, among those who earn their livelihood by selling their labor.
