Gig Worker Organizers Find Hurdle in Antitrust Laws

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By Chris Opfer

Nov. 232 — Some Uber drivers, Airbnb housekeepers and other gig economy workers continue to explore ways to organize collectively, but federal antitrust laws pose a complicated roadblock in their efforts to create anything akin to a traditional labor union.

“Gig workers are widely considered independent contractors who run their own businesses,” Wilma Liebman, a former National Labor Relations Board member (D), told Bloomberg BNA. “Antitrust law prohibits independent businesses from colluding.”

The question isn’t entirely settled, but some lawyers and employee advocates assume that a worker who cobbles together jobs from various sources or uses an online platform to pick up some extra cash is treated like an entrepreneur or business for antitrust purposes. They say that means gig worker groups, like a new guild for New York Uber drivers, may wind up operating as something of a company-sponsored employee organization.

Advocates hope Congress will eventually tweak existing laws to give gig workers a stronger collective voice. Still, many don’t expect the groups that spawn from those changes to look very much like traditional labor unions.

“The worker collectives that emerge if there are changes in the law will be a lot less rigid than some of the unions have been,” Arun Sundararajan, a business professor at New York University and author of a book on “crowd-based capitalism,” told Bloomberg BNA. “The workers might have certain shared objectives, but it’s not the same as a group of people on an assembly line.”

Overlap Complicated

Courts have for decades been grappling with the tension between antitrust laws banning concerted activities that restrain commerce and the National Labor Relations Act, which protects workers’ right to band together and negotiate the terms and conditions of their jobs with an employer. The compromise that they’ve reached is already being tested by nonunion worker organizations.

“This is probably one of the most complicated areas of labor law,” Steven Wheeless, a partner at Steptoe & Johnson in Phoenix, told Bloomberg BNA. Wheeless said courts have generally responded by creating a broad antitrust exception for labor unions, but added that the limits of that exception are still not clear.

The Sherman Act, which first became law all the way back in 1890, generally bars price-fixing and other forms of collusion in which businesses agree to do something that restricts the free flow of trade and commerce. It was designed to combat monopolies and curb business practices that impede competition.

The law was updated nearly a quarter century later—via the Clayton Act—to specifically exempt labor organizations bargaining on behalf of the workers they represent. It also provides a safe harbor for other union activity, like picketing, strikes and other work stoppages.

Wheeless said courts have interpreted the antitrust laws, combined with separate limits on judicial involvement in labor disputes, to exempt “a labor organization that acts as a labor organization in the furtherance of its goals.”

Nonunion worker centers like OUR Walmart, Fight for $15 and Restaurant Opportunities Centers United raise trickier legal questions. Critics have argued that the groups act as “fronts” for unions designed to evade reporting requirements.

Early Stages

Advocates have largely conceded that gig worker groups aren’t covered by the labor exemption. They often point to a seven-decades-old Supreme Court decision in which the justices found that an association of independent fishermen were not protected by a law banning court interference with labor disputes ( Columbia River Packers Ass’n., Inc. v. Hinton, 315 U.S. 143 (1942)).

A separate antitrust exemption for government action may provide some protection for gig worker groups, former NLRB Chairman William B. Gould (D) told Bloomberg BNA. Gould said the safe harbor could apply to situations like in Seattle, where a proposed ordinance would allow Uber drivers to bargain with the company under some government oversight.

“They can avail themselves of the government exemption if they negotiate the deal and government is in some way involved in it, like by ratifying the agreement,” Gould said.

Still, gig workers and other independent contractors have moved instead to form more loose organizations, like the Independent Drivers Guild. The group works with Uber’s backing—and in partnership with the International Association of Machinists and Aerospace Workers—but it doesn’t have the legal right to collectively bargain on behalf of its members.

James Conigliaro Jr., the guild’s founder, told Bloomberg BNA that the group has created a voice for drivers. He also said the guild recently scored a victory by convincing the ride-sharing giant to scrap a policy that required high-end Uber Black drivers to also pick up lower-paying fares.

He acknowledged, however, that the guild “by no means is a final version or a perfect model.”

Conigliaro and NYU’s Sundararajan also said they expect gig worker groups to evolve into something different than traditional labor unions if the antitrust laws are ever updated. They’ll likely focus on fighting for basic terms and conditions that apply to all workers, while keeping in mind that many independent contractors prefer the flexibility that comes with sort of being their own bosses.

“Moving forward we’ll have lawyers, doctors, laborers and all kinds of other professionals who will be platform-based providers of services and skills,” Sundararajan said. “To preclude them from having some of the same kind of protections as traditional employees doesn’t make any sense.”

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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