1. The regulatory dilemma(s) of non-standard employment
Undoubtedly, we live in interesting times. Technological advancement gives us the impression that the world is changing in all kinds of ways at an ever-increasing rate. One dimension of social life that appears to be caught up in the whirlwinds of technologically-fueled mutation is the world of work. Sprawled across the pages of the mainstream press, the white papers of think tanks, the written decisions of employment tribunals, and the publications of academics, one finds a bold and persistent theme: ‘work’ is undergoing a profound transformation. Just as all instances of social evolution bring forth numerous questions of particular interest to social scientists, the transformation of work carries particular social significance. At any given time, an overwhelming share of the population is in work — as of July 2020, 76.4% of adults between 16-64 are in employment — and therefore the mass of people have a compelling reason to worry about the future of work and what it means for their lived experience.1placeholder
Political communities across the world thus confront a range of fraught policy dilemmas over how to greet, and where necessary manage this development. Perhaps the central point of concern is what to do about the growth of so called ‘non-standard employment’ and the apparent decline of a ‘standard employment relationship’ that dominated the twentieth century.2placeholder The days of long-term, fixed hour, unionized, and secure employment appear to be withering away, only to be replaced with ‘causalised’ or ‘informal’ employment arrangements that are less secure, temporary, and deny the suite of benefits traditionally extended to employees.3placeholder Put simply, the practice of classifying workers as ‘employees’ — which extends a range of rights and benefits to the worker — is being eroded by the increasingly frequent (mis)classification of workers as ‘independent contractors’ (the status of self-employment). Although the rapidity of this trend is often overstated, the growing number of people who work in a non-standard employment arrangement continues to soar.4placeholder Much ink has been spilled documenting this trend, classifying the range of non-standard employment relationships that have emerged, speculating about the social consequences of it, and pontificating on what policies might be needed in response.
But of overriding concern arising from the growth of non-standard employment is the many substantial questions regarding what legal interventions should take place in response to this development. As many have persuasively argued, some of the prominent non-standard employment arrangements — particularly online digital platform labour, what is often referred to as the ‘gig economy’ — do not fit neatly into labour law as it currently stands.5placeholder This poses a range of queries as to the suitability of current law for regulating the a-typical employment relations cropping up with greater frequency in labour markets. This has led some to argue for the creation of a new worker classification, such as a ‘dependent contractor’, that would apply to those workers who appear to neither be fully an employee nor fully an independent contractor.6placeholder To be sure, there are those who reject this framing, and generally take the view that existing labour law can sufficiently protect workers in non-standard employment, so long as existing laws are actually and properly enforced.7placeholder Particularly in Britain, the tripartite classification of ‘employee’, ‘worker’, and ‘self-employed’ offers a more comprehensive regulatory apparatus than other nations, such as the United States, that uphold a starker binary division between employee and independent contractor.
To wit, it is clear that the transformation of work is pushing to the fore a robust conversation about what legislative or regulatory actions be taken to address the enlarging gig economy. The nature of this discussion, unsurprisingly, seems to be molded by the perennial double movement inherent to market societies: a dialectical process identified by Karl Polanyi defined by a push and pull motion of marketization and freedom to contract on the one hand, and a countermovement to inoculate individuals from the harms of marketization, on the other.8placeholder Thus, the debate over labour law’s legitimacy and purpose generally involves a competition for ideological supremacy between two broad camps: those in favor of liberalising labour law (or even reducing labour to mere law of contract) and those in favor of extending some measure of industrial rights to those who labour for money. The historical record indicates the existence of critical moments at which these two camps have clashed to become the hegemonic ideal motivating the development of policy — and whichever camp is victorious will herald a lasting dispensation of labour law tilted toward their aims.
Arguably, the present time is one of those critical moments that will establish a new labour law dispensation for the generation defined by the existence of a ‘swelling precariat’.9placeholder At the time of writing, a substantial number of what might fairly be called ‘David versus Goliath’ legal cases are pending across several nations, at the center of which are difficult questions regarding the application of predominantly twentieth century labour laws to increasingly prevalent non-standard employment relationships. So called ‘gig workers’ are bringing forth suits challenging their employment status, arguing that they have been misclassified as (self-employed) independent contracts when they are, in fact, employees and entitled to a range of labour rights.10placeholder But this struggle is now moving outside of the courts where it has been largely contained hitherto. A month from writing, the state of California — the fifth largest economy in the world if categorized as an independent country — will be voting on a ballot initiative, Proposition 22, that would allow companies, to avoid complying with Assembly Bill 5, a California law that requires they treat their workers as employees rather than independent contractors.”11placeholder
The current political climate is thus undeniably in the throes of a serious contestation between ideological factions attempting to imprint their policy preferences on how the state goes about regulating labour markets and employment relations in response to the transformation of work. The aim of this article is to evaluate a critical argument that is extensively heavily leaned on by the proponents of the status quo — and Proposition 22 — that allows for gig workers to be classified as independent contractors: the flexibility argument. As the name suggests, this argument holds that workers benefit from being classified as independent contractors because it grants them greater flexibility, which is something workers reportedly highly value. Employees, more often than not, are subject to strict scheduling requirements motivated by the financial interests of their employer. Whereas, independent contractors, on the other hand, have the freedom to work when they want — they de jure get to be ‘their own boss’.
Whilst the flexibility argument marshalled in support of the status quo (and Proposition 22) is certainly persuasive on its face, this argument seriously breaks down when subject to greater scrutiny. In what follows, I present just one example of how the flexibility argument critically overlooks other relevant facts. Specifically, I argue that the ‘freedom to work flexibly’ associated with the gig economy is extremely fragile, which ultimately raises the question of how robust that freedom truly is. As we will see, when evaluated from a neo-republican theoretical point of view, as opposed to the hegemonic liberal standpoint, the freedom to work flexibly appears incredibly suspect.
II. Flexibility as a privilege-right
Much is made of the flexibility that independent contractors enjoy whilst working for companies like Uber and Lyft. Indeed, this cherished aspect of ‘gig work’ has been incessantly proclaimed by those who reject legislative efforts or court rulings that would force companies to (re)classify gig workers as employees. In an editorial for the San Diego Union Tribune, Al Porche, an app-based driver argues that because Assembly Bill 5, “would force us to become full-time employees with rigid schedules….” it is critical that California votes yes on Proposition 22 to, “allow the hundreds of thousands of app-based drivers like me to work when and where we want. We’ll get to keep our freedom and flexibility, and the peace of mind that comes with that. No matter what, there will always be work we can do and services we can provide. That’s an assurance I need.”12placeholder To be fair, not all app-based independent contractors share Porche’s enthusiasm for being classified as an independent contractor. Unionization efforts geared towards reclassification have taken off;13placeholder drivers have brought suits against these companies for misclassification;14placeholder and labor advocates have lobbied for governments to put an end to what they call ‘bogus self-employment’.15placeholder Nevertheless, polling data of those who work for digital labour platforms like Uber and Lyft demonstrate that the flexibility aspect of the work is, indeed, highly prized.16placeholder
Of course, there is little surprise to such findings. Who wouldn’t prefer that their work operate on a flexible basis? Control over where and when you work is surely something to covet, and even fight to preserve. But this narrative that the gig economy offers workers the chance to work on a flexible basis is more complicated than figures like Porche let on. What is often overlooked, and even suppressed, is that this ‘opportunity of flexible work’ is highly fragile. By this I mean that while the opportunity does in fact exist, its existence is incredibly delicate and can easily be destroyed. Simply put, app-based workers like Porche can be ‘deactivated’ from the digital labour platform (Uber, Lyft, etc.) at any moment on an entirely arbitrary basis. This is because those who work as independent contractors are engaged in a contract for services as opposed to a contract of service — and labour law only provides (some) protections against termination of a contract for the latter (i.e. employees).
One way we might describe the flexibility enjoyed by gig workers is to draw upon, “the four basic components of rights are known as ‘the Hohfeldian incidents’ named after Wesley Hohfeld (1879–1918), the American legal theorist who discovered them.”17placeholder The four incidents identified by Hohfeld are privileges (or liberties), claims, powers, and immunities. An individual enjoys a privilege-right if they lack a duty to not do something. For example, I have a privilege-right to play basketball today because I am under no duty to not do so. Clearly, our privilege-rights are potentially infinite. A claim-right is a right that one obtains by virtue of another individual having a corresponding duty. Citizens in the United Kingdom, unlike in the United States, have a claim-right to healthcare because some other social actor — in this case the government — has a duty to provide it. Privilege- and claim-rights are what legal theorist H.L.A. Hart called the ‘primary rules’ because they denote the “rules requiring that people perform or refrain from performing particular actions.”18placeholder
Powers and immunities are Hohfeldian incidents that make up ‘secondary rules’ in that they “specify how agents can introduce and change primary rules.”19placeholder An agent has a power-right if (and only if) they have the ability to alter the Hohfeldian incidents of another. Parents have power-rights because they can revoke their children’s privilege-rights, such as the right to play video games. Conversely, one has an immunity right if they are in a relationship wherein the other party cannot alter their Hohfeldian incidents. Citizens, for instance, have certain immunity-rights that protect them from governmental abuses of power. That is, citizens are immune from the government all of a sudden deciding that the right against unreasonable search and seizure no longer applies.
Having now briefly sketched Hohfeld’s incidents, we can better understand the fragile nature of app-based gig work. In the standard employment relationship, that of an employer and employee, each party has substantial claim-rights with respect to one another. Employers have extensive managerial prerogative in the workplace and with that comes a measurable degree of control over employees. Employers can require uniforms, what time people have to be at work, how certain tasks are to be performed, and so on. However, employees — through mandatory and collective self-regulation (i.e. labour laws and unions) — have claim-rights against their employers (and the state): they are entitled to wage and work-time controls, sick pay, holiday pay, legal challenges of unfair dismissal, organize without detriment, and so on. Furthermore, the claim-rights employees have sum up to certain immunity-rights in relation to their employer. For example, the claim-right against arbitrary dismissal means that employers cannot leverage the threat of termination to alter other employee rights.
However, in the non-standard employment relationship, such as between the independent contractor (Uber driver) and the digital platform (Uber), each party has less claim-rights against one another. In short, because the Uber driver is contracted as an independent contractor, they are assumed to not be in a position of subordination like the employee, and therefore they are not entitled to the protections employees are extended through labour law. Conversely, Uber is supposed to exercise less managerial prerogative over drivers because it employs them as contractors. One of the several claim-rights Uber drivers lose out on when classified as independent contractors (and not employees) is the claim against arbitrary or unjust dismissal. Put another way, app-based gig workers cannot sue companies like Lyft and Uber for wrongfully terminating the contract of employment. This means that if a driver is ‘deactivated’ from the digital platform for what they believe is an unjust reason, they have no recourse to rectify that in the courts. Their only option is to pursue reactivation through the firm’s internal channels and grievance procedures. Numerous drivers have reported on how hopeless, and indeed Kafkaesque, such a process can be.20placeholder
This termination-at-will arrangement between a firm like Uber and the independent contractors means that when one obtains the ‘right to work on a flexible basis’ by driving for Uber, they have a privilege-right to do so. They are free to sign-up on the Uber app and offer rides whenever and wherever they would like. Unlike the employee, Uber has no claim-right against the driver to work at specific hours or in particular places. Whilst independent contractors like Porche may enjoy exercising such a privilege-right, the reality is that such a right is especially flimsy. The flimsiness of this privilege-right stems from the power-right of Uber to alter the Hohfeldian incidents of its drivers. In the non-standard employment relationship, the firm (Uber) has an ability to alter the rights of the independent contractors they hire (the driver), including the privilege-right to work on a flexible basis.
III. The (un)freedom to work flexibly
What the flexibility argument critically overlooks, then, is that the value of a privilege-right — including the right to work on a flexible basis — is seriously weakened by the existence of an arbitrary power that could easily undermine or, in this case, revoke such a right. Whilst drivers like Porche are ‘free’ to work on a flexible basis whilst driving for Uber, that freedom is entirely dependent on the whims of Uber. Porche’s contract with Uber could be terminated at any time for any reason, and Porche has no immunity-right preventing such a possibility. Naturally, some might point out that the nature of this relationship embodies some sense of equality because Porche also has the opportunity to terminate the agreement whenever he sees fit. Notice that such equality is entirely de jure, as workers almost always tend to be more reliant on a contract of employment than the party that hired them.21placeholder
To conceive of flexible work in the gig economy as a privilege-right raises an important question: are app-based workers truly free then to work on a flexible basis? Perhaps most people would be inclined to answer in the affirmative and they would point to the fact that no social actor will try to forcefully obstruct workers from attempting to exercise that right. Such an answer demonstrates the hegemonic status of the negative view of freedom central to (neo)liberal thought. In short, on the negative view, freedom is demarcated by the absence of interference, which means that so long as one can act without (unjustified) forceful interference by others, they are said to be a free person. According to this account of freedom, workers certainly appear to be free to work on a flexible basis.
But this is only one approach for deciphering whether an individual is free in a social context. The recent revival of Roman republican thought, what is often referred to as neo-republicanism, indicates that freedom requires not the absence of forceful interference but the absence of domination.22placeholder While at first blush these antitheses may sound as nothing more than synonyms, they are entirely different concepts. As we have just indicated above, interference in the liberal tradition is generally understood to be forceful obstruction. Thus, if Alpha physically prevents Beta from walking on the road, then Beta has been made unfree by Alpha. Domination, on the other hand, is the condition of being subject to the arbitrary whim of another — that is, domination occurs when one is coerced to satisfy the private whims of an alien power.
The critical divide between the liberal and neo-republican antitheses of freedom is that domination can be perpetrated by means other than force. Alpha could certainly subject Beta to his own arbitrary preferences by using force, as in the case of physically preventing Beta from walking on the road. However, Alpha could also employ other techniques to subject Beta to his own will, such as by exploiting Beta’s dependency. Let us imagine, for example, that Alpha is Beta’s landlord and that, because Beta currently lives paycheck-to-pay check, he would have trouble putting down a deposit if forced to live somewhere else. In this arrangement, Beta is clearly dependent upon Alpha’s good will — especially if Beta has no legal protections against arbitrary eviction. We can easily imagine, then, circumstances where Alpha could exploit Beta’s dependency to Alpha’s personal and private gain. Simply, the mere hinting of an eviction could be used to coerce Beta into doing something he otherwise may not have wanted to do.
The neo-republican tradition thus emphasizes that unfreedom arises with the conjunction of two attributes in a social relationship: dependency and arbitrary power. In our devised hypothetical, Beta is dependent upon Alpha since his right to continue living in the apartment depends upon Alpha’s private disposition. Additionally, Alpha has the power to interfere with Beta’s ability to live in the apartment on an arbitrary basis. That is, Alpha could decide to evict Beta for any reason, random or otherwise, at any time. When these two attributes exist in a social relationship, unfreedom is the necessary result. Clearly, in a state of dependency, one can easily be subjected to the arbitrary whim of another: and insofar as this possibility hangs over someone, they cannot truly act sui juris (on their own terms). Instead, such an individual is forced to act according to the interests of a dominus. If Alpha hints at eviction when Beta requests that needed repairs be made, Alpha is able to dominate Beta into no longer asking for the repairs by exploiting Beta’s dependency.
Is it not the case that app-based drivers, who seek to work on a flexible basis, are in a social relationship with the ‘technology companies’ for whom they work that embodies the ingredients of dependency and arbitrary power? On the one hand, it could be argued that drivers are not truly dependent on these companies because (a) they could always work for competing apps or (b) they can find other jobs outside the gig economy to satisfy their needs. These points may or may not be true.23placeholder But, if we take individuals like Porche at their word, as we should, it seems undeniable that drivers are, indeed, dependent upon these technology companies for the chance to exercise the right to work flexibly. Furthemore, it is undeniable that the second attribute of arbitrary power is certainly inherent to the relationship. As we have noted above, the status of drivers as independent contractors means their employment contract can be terminated at any time for any reason.
It therefore appears that a driver’s cherished opportunity to work flexibly is entirely dependent on the arbitrary will of the companies to whom they contract their services. Thus, from a neo-republican point of view, to suggest that the status quo — and laws like Proposition 22 — secure the ‘liberty’ of individuals to work flexibly is misguided if not outright fallacious. It is evident that under current conditions drivers like Porche exercise the privilege-right to flexible work in a dominated position in relation to firms like Uber. Uber, as we have seen, could exercise its power-right to revoke Porshe’s privilege-right to flexible work at any moment — and drivers must merely hope that Uber chooses not to do so. Can we really say that working under such conditions connotes any type of real ‘freedom’? If your opportunity to exercise a right is entirely dependent on the arbitrary whims of an alien power, is that right truly meaningful?
It seems unlikely that any kind of right that can arbitrarily be ripped away is worth coveting, no less one worth fighting for. Merely one hour of casework for unions that organize gig workers will reveal the wide-ranging negative experiences that result from the right to work flexibly being incredibly fragile. Every day drivers are deactivated from these platforms for reasons that appear to them as opaque or objectionable, and there is nothing they can do about it. In many cases, an abrupt termination is extremely painful for those who rely on these jobs to make ends meet. So whilst it may be formally true that gig workers enjoy flexibility in their work, it is a benefit that is completely fragile and can disappear at a moment’s notice. Whether it is possible to have a workplace model that guarantees both flexibility and security is a debate that is currently taking place (as it isn’t obvious that they cannot).24placeholder Nevertheless, it is imperative that we recognize the critical limitations inherent to the flexibility argument as debates over how to regulate non-standard work continue to play out in public and policy-formation settings, including the fragility of flexibility.
Works Cited
Robert Booth, “Uber Drivers’ Fight for Workers’ Rights Reaches UK Supreme Court,” The Guardian, July 21, 2020, sec. Technology.
Jay Cradeur, “Uber Deactivated My Driver Account for No Reason,” Ride Share Guy (blog), accessed October 12, 2020.
Jane Croft, Dave Lee, and Siddharth Venkataramakrishnan, “Uber in Final UK Court Appeal That Its Drivers Are Not Employees,” Financial Times, July 19, 2020.
Robert Donoghue, “‘Emancipationism’: An Attempt to Synthesize Neo-Republican and Socialist Thought,” Ethics, Politics & Society 3 (July 10, 2020): 73–104.
Gerald Friedman, “Workers without Employers: Shadow Corporations and the Rise of the Gig Economy,” Review of Keynesian Economics 2, no. 2 (April 1, 2014): 171–88.
Suhauna Hussain, “Uber, Lyft Push Prop. 22 Message Where You Can’t Escape It: Your Phone,” Los Angeles Times, October 8, 2020, sec. Technology.
International Labour Organization, “Non-Standard Employment around the World: Understanding Challenges, Shaping Prospects” (Geneva: International Labour Office, 2016).
Dara Khosrowshahi, “I Am the C.E.O. of Uber. Gig Workers Deserve Better.,” The New York Times, August 10, 2020, sec. Opinion.
James Manyika et al., “Independent Work: Choice, Necessity, and the Gig Economy” (McKinsey Global institute, 2016).
Jason Moyer-Lee, “What Everyone Assumes about Rights in the Gig Economy Is Wrong,” The Guardian, March 22, 2017, sec. Opinion.
OECD. OECD Employment Outlook 2019: The future of work. OECD Publishing, 2019.
Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997).
Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, 20th Printing edition (Boston: Beacon Press, 1971).
Al Porche, “Prop. 22 Would Let App-Based Drivers like Me Keep Our Freedom and Flexibility,” San Diego Union-Tribune, September 24, 2020, sec. Commentary.
Yvonne Roberts, “The Tiny Union Beating the Gig Economy Giants,” The Guardian, July 1, 2018, sec. Politics.
Benjamin Sachs, “Enough with the Flexibility Trope,” OnLabor (blog), May 15, 2018.
Michael Saltsman, “Unions Seek to ‘Liberate’ Gig Workers From Flexibility,” Wall Street Journal, September 4, 2020, sec. Opinion.
Guy Standing, The Precariat: The New Dangerous Class (Bloomsbury Publishing, 2016).
Matthew Taylor, “Good Work: The Taylor Review of Modern Working Practices” (London: Department for Business, Energy & Industrial Strategy, July 11, 2017).
Bob Watson, “Employment in the UK: July 2020” (Office for National Statistics, July 16, 2020).
Leif Wenar, “Rights,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Spring 2020 (Metaphysics Research Lab, Stanford University, 2020).
Julia Carrie Wong, “California Sues Uber and Lyft for Misclassifying Drivers as Contractors,” The Guardian, May 5, 2020, sec. US news.
Bob Watson, “Employment in the UK: July 2020” (Office for National Statistics, July 16, 2020).
Gerald Friedman, “Workers without Employers: Shadow Corporations and the Rise of the Gig Economy,” Review of Keynesian Economics 2, no. 2 (April 1, 2014): 171–88.
International Labour Organization, “Non-Standard Employment around the World: Understanding Challenges, Shaping Prospects” (Geneva: International Labour Office, 2016).
OECD. OECD Employment Outlook 2019: The future of work. OECD Publishing, 2019.
Dara Khosrowshahi, “I Am the C.E.O. of Uber. Gig Workers Deserve Better.,” The New York Times, August 10, 2020, sec. Opinion.
Matthew Taylor, “Good Work: The Taylor Review of Modern Working Practices” (London: Department for Business, Energy & Industrial Strategy, July 11, 2017).
Jason Moyer-Lee, “What Everyone Assumes about Rights in the Gig Economy Is Wrong,” The Guardian, March 22, 2017, sec. Opinion.
Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, 20th Printing edition (Boston: Beacon Press, 1971).
Guy Standing, The Precariat: The New Dangerous Class (Bloomsbury Publishing, 2016).
Jane Croft, Dave Lee, and Siddharth Venkataramakrishnan, “Uber in Final UK Court Appeal That Its Drivers Are Not Employees,” Financial Times, July 19, 2020.
Suhauna Hussain, “Uber, Lyft Push Prop. 22 Message Where You Can’t Escape It: Your Phone,” Los Angeles Times, October 8, 2020, sec. Technology.
Al Porche, “Prop. 22 Would Let App-Based Drivers like Me Keep Our Freedom and Flexibility,” San Diego Union-Tribune, September 24, 2020, sec. Commentary.
Yvonne Roberts, “The Tiny Union Beating the Gig Economy Giants,” The Guardian, July 1, 2018, sec. Politics.
Robert Booth, “Uber Drivers’ Fight for Workers’ Rights Reaches UK Supreme Court,” The Guardian, July 21, 2020, sec. Technology.
Julia Carrie Wong, “California Sues Uber and Lyft for Misclassifying Drivers as Contractors,” The Guardian, May 5, 2020, sec. US news.
Michael Saltsman, “Unions Seek to ‘Liberate’ Gig Workers From Flexibility,” Wall Street Journal, September 4, 2020, sec. Opinion.
Leif Wenar, “Rights,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Spring 2020 (Metaphysics Research Lab, Stanford University, 2020).
Leif Wenar, “Rights,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Spring 2020 (Metaphysics Research Lab, Stanford University, 2020).
Leif Wenar, “Rights,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Spring 2020 (Metaphysics Research Lab, Stanford University, 2020).
Jay Cradeur, “Uber Deactivated My Driver Account for No Reason,” Ride Share Guy (blog), accessed October 12, 2020.
Robert Donoghue, “‘Emancipationism’: An Attempt to Synthesize Neo-Republican and Socialist Thought,” Ethics, Politics & Society 3 (July 10, 2020): 73–104.
Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997).
James Manyika et al., “Independent Work: Choice, Necessity, and the Gig Economy” (McKinsey Global institute, 2016).
Benjamin Sachs, “Enough with the Flexibility Trope,” OnLabor (blog), May 15, 2018.