Introduction
In late August of this year, news reports began to circulate about hundreds of Nashville, Tennessee rideshare drivers voting to “unionize” and form what they call the “Tennessee Drivers Union (TDU).” These news reports went on to describe how the TDU “went on strike” at the Nashville International Airport over the Labor Day Weekend in an effort to bring attention to the struggles that rideshare drivers face in Tennessee.
The media coverage of the TDU was somewhat sensationalized, often suggesting that the “striking” Uber and Lyft drivers in Nashville were part of a traditional union—like the Teamsters, UAW, or SEIU. In reality, the TDU is neither a recognized nor a formal labor organization, and it lacks the legal rights necessary to achieve that status at this time. The misrepresentation about the true status of the TDU can lead to misunderstandings about the nature of the drivers’ actions and the true landscape of labor organization in the gig economy generally, and the platform economy specifically.
While we previously expressed concerns that the TDU’s “strike” over the Labor Day Weekend might actually undermine their objectives, the event sparked an intriguing discussion with our business associates about the real potential for app-based labor platform workers to establish or join formal labor unions capable of engaging in collective labor relations activities vis-à-vis the app-based labor platforms they work with.
As the 2024 U.S. presidential elections approach, the prospect of recognized platform worker unions becomes increasingly pertinent. Many observers of labor and employment issues in the U.S. believe that the starkly contrasting labor policies of Vice President Kamala Harris and former President Donald Trump suggest that the rights of platform workers to form recognized unions may hinge on the election outcome, potentially reshaping the landscape of labor relations in the gig economy.
The election of Ms. Harris as President could significantly shape the future of unionization rights for platform workers. Conversely, a return of former President Trump to the presidency would likely stymie any progress in this area. However, regardless of who occupies the Oval Office at the conclusion of the 2024 election, it seems unlikely that either candidate will bring about a definitive and lasting mandate for platform worker unionization rights in the near term. This issue is inherently complex and extends beyond the presidency, influenced by the National Labor Relations Board (NLRB), federal appellate courts, and ultimately the U.S. Supreme Court. As these institutions become increasingly politicized, they contribute to an uncertain and unreliable legal and policy landscape, mirroring a divided political climate that struggles to reach consensus on crucial social issues, including the evolving nature of work in the U.S.
Considering these factors, we believe that formal unionization rights for platform workers—conventionally believed to be crucial for supporting their collective efforts—are unlikely to emerge soon. Instead, it seems more probable that these workers will gravitate toward dedicated online communities to build solidarity and form informal networks. These spaces will allow them to connect, share experiences, voice their concerns, and take collective action within the bounds of the law, even in the absence of formal union recognition.
The Fundamental Requirement for Platform Worker Unionization Rights
The National Labor Relations Act (NLRA), enacted by Congress in 1935, grants employees in the U.S. the right to self-organize, form and join labor organizations, bargain collectively through chosen representatives, and engage in other collective activities aimed at improving working conditions in private-sector workplaces. Importantly, the NLRA only extends these protections to “employees.”
Section 2(3) of the NLRA clearly defines “employee” to exclude individuals classified as “independent contractors.” Consequently, the ability of platform workers to engage in formal union activities depends on whether policymakers and legal authorities consistently recognize them as employees under the NLRA.
The Divergent Labor and Exployment Policies of Ms. Harris and Mr. Trump
It is widely recognized that Vice President Kamala Harris is a staunch advocate for organized labor, consistently seeking to advance the interests of unions whenever possible. In contrast, former President Donald Trump has a track record of limiting the influence of unions in the U.S. But what about the 2024 presidential candidates’ positions on the specific issue of whether platform workers should be classified as employees under the NLRA? We believe there is a clear answer to that question.
Currently, Congress is considering the Richard L. Trumka Protecting the Right to Organize Act of 2023 (the “PRO”), a bill originally introduced in 2019 during the Trump administration. This legislation seeks to transform the labor relations landscape in the U.S. by prioritizing organized labor. A pivotal aspect of the PRO is its proposed amendment to Section 2(3) of the NLRA, which would redefine the term “employee” under the NLRA by essentially adopting California’s ABC test for worker classification. This shift would establish the ABC test as a national standard in labor law. If enacted, this proposed change to the NLRA would provide a strong foundation for policymakers and legal authorities to classify platform workers as employees of the app-based platforms they work with, bringing them within the realm of the NLRA and enhancing their rights to establish formal unions.
In a keynote address on July 25, 2024, to the American Federation of Teachers, Ms. Harris pledged to sign the PRO Act if elected president and if it reaches her desk. This stands in stark contrast to a February 5, 2020, Statement of Administration Policy from the Trump Administration, which asserted that President Trump would have vetoed the PRO had it been presented to him for enactment. The statement claimed that the PRO would jeopardize jobs and undermine the gig economy by echoing critical elements of California’s AB5 legislation, which it argued threatened both the franchise sector and the gig economy in the state.
While political positions can shift, it seems clear that Ms. Harris is dedicated to expanding the reach of the NLRA to include platform workers, whereas Mr. Trump remains committed to blocking that expansion.
Navigating the Political Maze of the Legal Decision-Makers
The sharp policy divide between Ms. Harris and Mr. Trump regarding the expansion of the NLRA to include platform workers indicates that a Harris victory in the 2024 presidential election could open the door to classifying these workers as employees under the NLRA, thereby granting them formal union rights. However, this transformation hinges not only on her commitment but also on the consensus of key legal decision-makers, including the National Labor Relations Board (NLRB) and the federal judiciary. Unfortunately, these institutions have become increasingly politicized in recent years. As a result, even with Ms. Harris in office, her vision for expanding NLRA coverage for platform workers may face significant hurdles in becoming a reality.
Consider the NLRB, the federal agency responsible for enforcing the NLRA and safeguarding the rights of employees to organize and choose union representatives. The NLRB wields significant power in determining whether specific groups of workers are classified as employees or independent contractors under the NLRA. By establishing clear, consistent standards for these classifications, the NLRB plays a crucial role in defining who qualifies as an employee under the NLRA. Its decisions directly shape the landscape of labor relations across the country, influencing the rights and protections available to workers.
Since around 2009, the NLRB has wrestled—both internally and with the federal judiciary—over a seemingly simple yet critical question: Should the criteria for classifying workers as employees or independent contractors consider whether a worker has an ‘entrepreneurial opportunity for gain or loss’? Incorporating this consideration into any criteria used by the NLRB to determine worker classification tends to favor the classification of workers as independent contractors while excluding the consideration increases the likelihood that a given set of workers will be recognized as employees under the NLRA. Yet, what should be a straightforward issue has become a political battleground, with the NLRB shifting its position in response to changes in presidential administrations between Democrats and Republicans.
In a series of NLRB rulings—commonly referred to as “FedEx I,” “FedEx II,” “SuperShuttle,” and “Atlanta Opera”—the board has repeatedly flip-flopped on whether entrepreneurial opportunity for gain or loss should factor into classifying workers as employees or independent contractors under the NLRA. In FedEx II, during a period when a majority of the NLRB members were appointed by former President Obama, the answer was no. Conversely, in SuperShuttle, with a majority appointed by former President Trump, the answer shifted to yes. Then, in Atlanta Opera, with a President Biden majority, it reverted back to no.
Interestingly enough, the about-face rulings by the NLRB concerning what standard it should use in determining worker classification have indeed been utilized by the NLRB on two occasions to stake out differing policy and legal positions on the question of whether platform workers are employees under the NLRA. In September 2016, the NLRB’s Office of General Counsel advised that platform workers using the Postmates app should be classified as employees, citing the precedent set in FedEx II. In stark contrast, by April 2019, the same office reversed its position regarding Uber drivers, labeling them as independent contractors based on the SuperShuttle ruling and the notion of entrepreneurial opportunity.
Given the demonstrated legal inconsistency by the NLRB with respect to the critical issue of what criteria should be used by the NLRB to classify workers under the NLRA, it would be naive to assume that a determination of platform worker classification made by one administration’s NLRB would hold any precedential value under a subsequent administration from a different party.
The possibility of platform workers achieving lasting formal union rights under the NLRA becomes even more uncertain with the involvement of the federal judiciary. NLRB decisions can be appealed and reviewed by federal circuit courts of appeal, meaning that even if the NLRB classifies a group of workers as employees under the NLRA, that determination could be reversed by a federal appellate court. This was evident in the cases of FedEx I and FedEx II, when panels from the D.C. Circuit Court of Appeals—predominantly composed of judges appointed by Presidents Reagan and Bush, including current Supreme Court Justice Brett Kavanaugh—overturned the NLRB’s findings that certain workers were employees under the NLRA.
It is clear that the federal judiciary will play a pivotal role in deciding whether platform workers are classified as employees under the NLRA, a situation that may result in a patchwork of inconsistent rulings. Several factors contribute to this expectation.
First, the Supreme Court’s recent ruling in Loper Bright Industries v. Raimondo has made it evident that federal courts are no longer obligated to grant automatic deference to agency decisions. This shift means that federal appellate courts are now more likely to overturn NLRB rulings they disagree with—whereas previously, they might have simply accepted the NLRB’s judgment, even if they had reservations about its rulings.
Second, the federal judiciary has become increasingly politicized and ideological, a trend that intensified during former President Trump’s administration. In just four years, he appointed three Supreme Court justices and 54 federal appellate judges—almost matching the 55 federal appellate judges appointed by former President Obama over eight years. This reshaping has dramatically shifted the balance in several federal appeals courts from a majority of Democratic appointees to a majority of Republican appointees.
Given these dynamics, it is reasonable to anticipate that any NLRB cases regarding the classification of platform workers will frequently be appealed to various federal circuit courts. Unconstrained by a need to defer to the NLRB’s determinations, these courts are likely to issue conflicting rulings. For instance, conservative circuits—such as the Third, Fifth, Sixth, Seventh, Eighth, and Eleventh—may classify platform workers as independent contractors, while more liberal circuits—including the D.C., First, Second, Fourth, Ninth, and Tenth—might determine that the same workers are employees of app-based labor platforms.
Moreover, it is highly likely that if conflicts arise among federal appellate courts regarding the criteria the NLRB should use to classify platform workers under the NLRA, the U.S. Supreme Court will seize the opportunity to establish a definitive standard. The NLRB would be legally bound to follow whatever standard the Supreme Court sets. Given the current composition of the Court, it is probable that any such standard would narrow, rather than expand, the classification of workers as employees under the NLRA. This could lead to consistent rulings that label platform workers as independent contractors. This outcome is particularly likely considering that Justice Kavanaugh, during his time on the D.C. Circuit Court, supported independent contractor classification for the subject workers in the FedEx II case.
Revolutionizing Solidarity: How Innovative Online Communities Will Forge Powerful Informal Unions for Platform Workers
While it may be unlikely that platform workers will gain the right to form or join formal labor organizations in the near future, this does not mean that the desire for some platform workers to seek solidarity and engage in collective action will diminish. The inherently isolated nature of platform work, coupled with the need for support in addressing work-related challenges, a lack of information transparency, and the significant power imbalance that currently exists between platform workers and app-based labor platforms, will continue to drive many platform workers to seek connection and collaboration between themselves. As a result, one can expect to see more informal union initiatives akin to the TDU “strike” that demonstrate this wish for solidarity and collective action among some platform workers.
The most dynamic and effective informal labor organizations will not stem from traditional labor organizing efforts or rely on conventional strategies like TDU-style strikes to tackle power imbalances between platform workers and app-based labor platforms. Instead, the most impactful groups will emerge from innovative online communities—like the dedicated virtual space we have created for platform workers within our Gigafin platform and mobile app.
It’s increasingly recognized that gig workers connecting in social and virtual spaces can overcome their isolation, using online communities to foster solidarity and engage in various forms of collective action. Online communities enable workers to address employment-related issues, express dissent, and build collective identities to mobilize action.
As noted by Alex J. Wood and Vili Lehdonvirta in their research entitled “Antagonism beyond employment: how the ‘subordinated agency’ of labour platforms generates conflict in the remote gig economy,” “[i]nter-worker communication via digital media can also enable bonding and bridging, and thus foster solidarity among workers who are spatially and temporally fragmented. In these ways, new information and communication technologies potentially alter the resources and capacities needed for some forms of collective action.”
Given these developments, we foresee that innovative online communities like the one to be offered by our Gigafin platform and mobile app, will emerge as the leading source of solidarity and lawful collective action for platform workers in the near future.