In a recent address, Commissioner Alvaro M. Bedoya of the U.S. Federal Trade Commission (“FTC”) stated that gig workers classified as independent contractors can organize and collectively bargain for better wages or hours without violating federal antitrust laws.
While Commissioner Bedoya was not announcing a formal policy statement and neither the FTC nor Congress has taken action to give gig workers the right to organize, his remarks signal a shift in the FTC’s stance on labor. For example, the FTC opposed a Seattle law that would have allowed rideshare drivers to collectively bargain, stating that doing so violated federal antitrust laws.
Whether the FTC will issue further guidance on collective bargaining and gig workers remains to be seen. This post discusses federal laws governing gig workers and how an experienced antitrust lawyer can add value.
Federal Laws Governing Gig Workers and Independent Contractors
Generally, gig workers are not considered employees under federal labor laws; instead, they are classified as independent contractors, meaning that they are not entitled to many benefits and protections afforded to traditional employees.
For example, the U.S. Fair Labor Standards Act of 1938 (“FLSA,” 29 U.S.C. § 203) provides minimum wage and overtime protections for employees, but the FLSA does not apply to independent contractors. The National Labor Relations Act of 1935 (“NLRA,” 29 U.S.C. § 151-169) gives employees the right to form and join unions, but the NLRA does not apply to gig workers. The NLRA also protects employees’ rights to engage in “concerted activities,” including collective bargaining or other mutual aid or protection, but this protection does not extend to independent contractors.
However, the classification of gig workers and independent contractors is not always clear-cut, and courts have struggled to define the line between independent contractors and employees.
Can Gig Workers Organize and Not Violate Antitrust Laws?
Antitrust laws are designed to promote competition and prevent unreasonable anticompetitive behavior. These laws can impact the ability of gig workers to organize. Under antitrust laws, agreements among competitors to fix prices, allocate markets, restrict output, or otherwise collude are illegal. This could mean that gig workers who collaborate to negotiate better pay or working conditions could be accused of violating antitrust laws.
However, there are exceptions to these rules. For example, the Sherman Antitrust Act of 1890 (15 U.S.C. §§ 1-7) exempts from antitrust liability certain collective activities undertaken by labor unions, including, without limitation, collective bargaining and strikes. Similarly, the Clayton Antitrust Act of 1914 (15 U.S.C. §§ 12-27) provides a “labor exemption” for certain activities taken for better wages, hours, and working conditions.
Commissioner Bedoya indicated that these protections extend to gig workers in his remarks:
“Congress has made it clear that worker organizing and collective bargaining are not violations of the antitrust laws[. …] From the beginning, American antitrust law aimed to protect worker organizing – not limit it.”
Federal antitrust laws can impact the ability of gig workers to organize and protect their rights. However, exceptions to these laws provide some protections for gig workers. By working with an antitrust lawyer, gig workers can help protect their rights and ensure that they receive fair treatment. Companies also must work with experienced antitrust attorneys to assess strategies for working with gig workers.
An antitrust lawyer can help by developing strategies for both companies and gig workers to better ensure that working conditions and negotiations do not run afoul of antitrust laws. The best way for gig workers, contractors, and companies to protect their rights is to consult an experienced antitrust and unfair competition attorney.