Martin H. Malin
Professor of Law and Director of the Institute for Law and the Workplace at Chicago-Kent College of Law, Illinois Institute of Technology

Is an Uber driver an employee of Uber? Most scholarship about the so-called on-demand or gig economy has focused on whether individuals providing services via platforms, such as Uber, Lyft, Task Rabbit, and Instacart, are employees under current law or should be protected to the same degree as employees are protected under current law. Most litigation has focused on whether the platform has misclassified the service providers as independent contractors rather than employees. In one case brought against Lyft for allegedly misclassifying drivers as independent contractors, a federal judge, in denying cross motions for summary judgment, described the jury’s task as “be[ing] handed a square peg and asked to choose between two round holes.”

This Article maintains that the current battles over the classification of platform service providers will, in the long term, be irrelevant. Some platforms, such as Task Rabbit and Airbnb, cannot be deemed to be employers no matter how far the common law and statutory definitions of employer are stretched. With others, such as ride hailing and delivery platforms, the current fights over classification will turn on the facts of each case. But regardless of how these cases turn out, the litigation will likely be futile as far as providing lasting protection for platform workers. Platforms control the terms of service and, because having their workers classified as independent contractors is critical to their business models, they will tweak the terms of service as needed to ensure that their workers ultimately are not classified as employees. [Read entire article here]