New York Times, Anand Giridharadas
Lyft claims not to be a car service. It wants to be “your friend with a car.” The “rules of the road” it gives drivers are really more like pleasant suggestions. Uber doesn’t see itself as a transportation company, but a “technology company,” almost like a video game that lets you control people in real life. Uber’s drivers aren’t employees; they’re called “partners.”
Welcome to the neo-Orwellianism of Silicon Valley, where doublespeak flourishes. It issues not from a propagandistic state but from companies that have brilliantly parlayed the novelty of their business models into hall passes shielding them from much of the regulation and scrutiny visited on other companies.
In separate rulings this month, a pair of federal judges in California dealt the doublespeak a blow, shredding arguments that Uber and Lyft depend on. The judges also grappled with the problem behind the doublespeak: the rise of a new class of workers who are more than contractors and less than employees. The judges suggested that proper oversight for these workers would require the invention of new rules.
The cases were brought by current and past drivers for Uber and Lyft, who claimed that they were employees, even though they had signed up to be contractors, and that they were entitled to protections and benefits under the law, like a minimum wage and expense reimbursement.
The judges, Edward M. Chen and Vince Chhabria, each found that the question of whether the drivers were contractors or employees was murky enough that a jury must decide it. But each judge then went beyond the rulings to ruminate on the strange new fate of the workers.
“The jury in this case will be handed a square peg and asked to choose between two round holes,” Judge Chhabria wrote.
Uber and Lyft’s square-pegged workers don’t fit into the round hole of employee because they have no real supervisors, they work irregular hours of their own choosing, and they are free to work for anyone else, too. But they also don’t fit into the hole of independent contractor, like your accountant or neighborhood plumber, because they cannot negotiate their own price, aren’t peripheral to the business (but are central to it), and are subject to extensive control and monitoring.
Uber and Lyft have taken the contractor argument to an extreme, arguing not only that drivers are contractors, but that they contract directly with passengers. This view casts the service as “an uninterested bystander of sorts, merely furnishing a platform that allows drivers and riders to connect,” as Judge Chhabria framed the argument. He then called this view “obviously wrong” and “not a serious one.”
In the other case, Judge Chen derided Uber’s claim that it is a technology company selling software, not rides. He likened it to Domino Sugar hypothetically declaring itself “a ‘technology company’ because it uses modern irrigation techniques to grow its sugar cane.”
But the judges, harsh as they were toward the companies, didn’t side with the drivers, either. Instead, they suggested that the new economy was feeding the courts a problem that existing law cannot digest.
What is new about these hybrid workers is that they look a lot like a contractor between gigs, and a lot like an employee during a gig. They may use the company to earn extra spending money, but they may also work for it 50 hours a week as their sole source of bread. They have the right to choose when they work. But when working, they must represent a company’s brand, follow its onerous rules and be subject to its customer ratings and electronic monitoring.
Judge Chen invoked Michel Foucault to suggest that such monitoring creates “a state of conscious and permanent visibility that assures the automatic functioning of power.”
A federal judge citing a French philosopher’s book on prisons to explain the lives of its workers: the sharing economy is officially all grown up. Grown-up economies invariably get grown-up rules. Those rules will slowly determine whether the workers of the future get the contractor’s freedom and the employee’s security, or the contractor’s security and the employee’s freedom.