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10 Harv. L. & Pol'y Rev. 479 (2016)
Employment Rights in the Platform Economy: Getting Back to Basics

handle is hein.journals/harlpolrv10 and id is 489 raw text is: Employment Rights in the Platform Economy: Getting Back to Basics Brishen Rogers* ABSTRACT The employment status of workers for platform economy firms such as Uber, Lyft, TaskRabbit, and Handy has become a significant legal and political issue. Law- suits against several such companies allege that they have misclassified workers as independent contractors to evade employment law obligations. Various lawmakers and commentators, pointing to the complexity of existing tests for employment and the costs of employment duties, have responded with proposals to limit platform companies' liability. This article steps into such debates, using the status of Uber drivers as a test case. It argues that Uber drivers may not fall neatly into either the employee or the independent contractor category under existing tests. Never- theless, an important principle underlying those tests the anti-domination princi- ple strongly indicates that the drivers are employees. That principle also indicates that proposals to limit platform economy firms' liability are premature at best and misguided at worst. TABLE OF CONTENTS INTRODUCTION .................................................. 480 1. W HO IS AN EMPLOYEE. .................................... 484 A. Legal Tests for Employment ............................ 484 B. The Uber and Lyft Cases ............................... 489 C. The Deep Challenges of Defining Employment ........... 493 II. THE AFFIRMATIVE CASE FOR PLATFORM EMPLOYMENT D UTIES .................................................... 496 A. Employment as a Legal and Social Concept ............. 496 B. The Anti-Domination Principle .......................... 500 C. The Normative Case for Holding Uber to Employment D uties ................................................ 505 III. WHO SHOULD IMPOSE EMPLOYMENT DUTIES? ................ 510 A. The Anti-Domination Principle in Employment L itigation ............................................. 510 B. Employment Determinations by Legislatures ............. 514 CONCLUSION: TOWARD A NEW MODEL ................................. 519 * Associate Professor, Temple University Beasley School of Law. Brogers@temple.edu. Many thanks to the editors of the Harvard Law & Policy Review for superb editorial assis- tance. Thanks also to Steven Greenhouse for comments on an earlier draft. Errors of course remain mine alone.

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