II. GIG WORKERS - A STUDY IN PRECARITY

II. GIG WORKERS: A STUDY IN PRECARITY

II. GIG WORKERS: A STUDY IN PRECARITY

Apart from their legal status, gig workers have long-struggled with misconceptions about the importance and seriousness of the work they perform. Social and popular perceptions of gig work are important because the law in this area has been rapidly developing. In the past few years the on-demand economy has grown rapidly, and according to one 2018 study, there are

³¹ See, e.g., Cherry, supra note 29, at 586-592 (detailing lawsuits by gig economy workers over the issue of misclassification).

³² Veena B. Dubal, The Drive to Precarity: A Political History of Work, Regulation, & Labor Advocacy in San Francisco’s Taxi and Uber Economies, 38 BERKELEY J. EMP. & LABOR L. 73, 75, 78 (2017).

³³ See Pete Robertson, How the Gig Economy Creates Job Insecurity, BBC (Sept. 18, 2017), https://www.bbc.com/worklife/article/20170918-how-the-gig-economy-creates-job-insecurity [https://perma.cc/662J-R3NV].

³⁴ See IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS, supra note 3.

over 57 million Americans gig workers.³⁵ According to an Edison poll, African American and Latinx adults are overrepresented among those working in the gig economy. ³⁶ But all of these statistics about the on-demand economy are pre-pandemic. Some indicators show that high unemployment rates during the pandemic have caused some laid-off workers to turn to gig work as a stop-gap.³⁷ Aside from the delivery and shopping services mentioned in the Introduction, gig work also includes remote professional tasks that are performed through a platform. These services have seen incredible growth during the pandemic as well. For example, Fiverr, an online work platform that specializes in graphics, design, and computer programming, saw new U.S. freelance registrations rise 48 percent in 2020 from the previous year.³⁸ And international crowdwork platform Upwork reported a 24 percent increase in signups during the summer of 2020.³⁹ Gig work functions as a bellweather for the economy more generally.

Meanwhile, courts, administrative law judges, policymakers, voters, and gig companies themselves are all grappling with the question of whether gig workers are employees or independent contractors.⁴⁰ Some of the misunderstandings about gig work had their inception at the very beginning of the 2010s, when digital platforms largely adopted the umbrella term of the “sharing” economy. As the author has written about in another publication, the terminology of “sharing” has largely been a misnomer, as almost all gig work is paid work, remuneration is expected. ⁴¹ However, for many years the rhetoric of the sharing economy provided a halo effect

³⁵ Helping the Gig Economy Work Better for Gig Workers, INT’L LABOUR ORG. (2020), https://www.ilo.org/washington/WCMS_642303/lang–en/index.htm; see also TJ McCue, 57 Million U.S. Workers Are Part of the Gig Economy, FORBES (Aug. 31, 2018, 6:30 PM), https://www.forbes.com/sites/tjmccue/2018/08/31/57-million-u-s-workers-are-part-of-the-gigeconomy/#6a3d67d87118. But see Elisabeth Buchwald, The Government Has No Idea How Many Gig Workers There Are, And That’s A Problem, MARKETWATCH (Jan. 7, 2019, 3:51 PM), https://www.marketwatch.com/story/the-government-has-no-idea-how-many-gig-workers-thereareheres-why-thats-a-problem-2018-07-18.

³⁶ THE GIG ECONOMY, MARKETPLACE-EDISON RESEARCH POLL, Dec. 2018, available at http://www.edisonresearch.com/wp-content/uploads/2019/01/Gig-Economy-2018-MarketplaceEdison-Research-Poll-FINAL.pdf.

³⁷See Andrew Soergel, Survey: 1 in 4 Americans Has Lost Job or Income to Coronavirus, U.S. NEWS & WORLD REP. (Apr. 8, 2020), https://www.usnews.com/news/economy/articles/2020-04-08/1-in-4-americans-has-lost-job-or-income-to-coronavirus-survey. See also Workers Face Permanent Job Losses as the Virus Persists, N.Y. TIMES, Oct. 3, 2020.

³⁸Kim Mackrael, New Entrepreneurs emerge From Wreck of Covid Economy, WALL ST. J., Nov. 19, 2020.

³⁹ Allana Akhtar, The pandemic could be turning the gig economy white-collar, if this summer’s new freelancers are any indication, BUSINESS INSIDER, Sept. 23, 2020, https://www.businessinsider.fr/us/upwork-pandemic-gig-economy-white-collar-high-skilledsummer-freelancers2020-9.

⁴⁰ Alana Semuels, What Happens When Gig-Economy Workers Become Employees, THE ATLANTIC, (Sept. 14, 2018), https://www.theatlantic.com/technology/archive/2018/09/gigeconomy-independent-contractors/570307/.

⁴¹ Miriam A. Cherry, Corporate Social Responsibility and Crowdwashing in the Gig Economy, 63 ST. LOUIS U. L. J. 1, 4 (2018). See also Ryan Calo & Alex Rosenblat, T*he Taking Economy: Uber, Information, and Power, *117 COLUM. L. REV. 1623, 1625 (2017) (“Sharing economy

for platforms even while these platforms were engaged in problematic labor practices.⁴² This part of the Article will explore several of the most prominent mistaken beliefs that have circulated on the subject of gig work during the past decade.

First, these misperceptions include the view that gig work is only a “side hustle” – a way to make quick extra money on top of, or in addition to, a regular job. This view implies that employee rights and benefits are unnecessary, because they will be supplied by the worker’s main job. A second misconception is that gig work is only for frivolous or unnecessary conveniences, perhaps made by a set of high maintenance customers. The workers participating in such frivolous endeavors may not even be formally called workers, and instead platforms give them cutesy nicknames or titles. Lastly, gig workers also are engaged in a form of invisible labor, where their work is hidden by the interface of the platform. ⁴³ Computer crowdworkers may even have their work attributed to efficient websites or artificial intelligence.

These distorted views of gig work have in the past served to marginalize gig workers, contributing to a narrative that the benefits and protections of employee status are unnecessary for gig workers. Alternately, these views may also lead to the belief that these benefits have not been truly “earned” because of the perception that the work gig workers perform is trivial or only for convenience. The next few sections explore the issue further, but all of these views have been challenged by the realities of gig work during the coronavirus pandemic.

A. Gig Work as “Side Hustle”

For years, gig economy workers have had their lack of rights taken less seriously in part because their work is often viewed as a mere “side hustle.” The term “side hustle” is commonly used to describe work in the gig economy, and it means a source of extra income earned in a worker’s spare time that supplements the regular income from a full-time job.⁴⁴ The term might

rhetoric tends to lump together small enterprises motivated by a common social bond, such as local food and housing cooperatives, with billion-dollar global businesses like Uber and Airbnb that readily integrate the language of sharing and connectivity into their branding …. We, however, draw a distinction between the variety of businesses the rhetoric of the sharing economy evokes, like selling grandma’s pies on the corner, and the billion-dollar companies that operate for profit at a global scale.”); Erez Aloni, Pluralizing the “Sharing” Economy, 91 WASH. L. REV. 1397, 1406-08 (2016); Abbey Stemler, The Myth of the Sharing Economy and Its Implications for Regulating Innovation, 67 EMORY L.J. 197, 199 (2017) (noting that sharing economy companies “convince communities, regulators, and courts that they are facilitating altruistic activities that utilize excess capacity, support job growth, and alter how we consume. This myth helps these Platforms avoid everything from employment laws . . . to liability for consumer harm . . ..”).

⁴²* See* PHIL ROSENZWEIG, THE HALO EFFECT … AND THE EIGHT OTHER BUSINESS DELUSIONS THAT DECEIVE MANAGERS (2007).

⁴³INVISIBLE LABOR: HIDDEN WORK IN THE CONTEMPORARY WORLD (Marion Crain, Winifred Poster, & Miriam A. Cherry eds.. 2016).

⁴⁴ Ultimate Guide to Earning Extra Income in the Gig Economy, MONEY MANAGEMENT INTERNATIONAL, https://www.moneymanagement.org/budget-guides/earn-extra-income (last visited Feb. 27. 2021); see also CHRIS GUILLEBEAU, SIDE HUSTLE FROM IDEA TO INCOME IN 27 DAYS (2017).

not be all bad; it has a certain edginess to it. As comedian Bill Maher jokingly put it, “a side hustle sounds kind of cool, like you’re a private eye…”⁴⁵ But the term “side hustle” also has some important implications for workers in the gig economy: if gig work consists of a few hours of moonlighting to supplement full-time work, then here is no need for employee benefits or minimum standards around that work. In fact, further regulations might be burdensome, and even unwelcome.

While the term “side hustle” seemed to appear alongside the emergence of gig work in the 2010s, the term itself actually has a surprisingly long history. The term “hustle” on its own seems to have come into common usage during the 1920s to mean a scam, and “hustlers” became synonymous with the con men or grifters who ran the scam.⁴⁶ During the 1950s, “hustle” morphed from a description of fraud to become more a description of work, or even a type of employment.⁴⁷ African American newspapers kept the term alive, and used the term “hustle” to mean a serious effort at work, knowing that working hard was necessary to achieve financial stability, given the pervasive racial discrimination of the time.⁴⁸ And “side hustle” appeared in this decade as well, meaning a sideline or profitable type of work undertaken in addition to a regular, 9-to-5 job. While the term faded from the limelight until the 2010s, it has retained this meaning of a second job for additional income in our modern parlance. ⁴⁹

However, the term “side hustle” is mostly inaccurate when looking at the realities of how much time gig workers spend working on platforms. While statistics about workers in the gig economy are often difficult to come by because the information is considered proprietary by gig platforms, some surveys have shed light on hours worked. A 2014 study sponsored by Uber found

⁴⁵ “New Rule: Not In It Together,” REAL TIME WITH BILL MAHER, https://www.youtube.com/watch?v=Hem8RG0tsUw&t=191s&ab_channel=RealTimewithBillMa her (noting that despite the coolness of the term, in fact a side hustle is more like driving for Uber and also making seashell necklaces to sell in an Etsy store – gigs with no potential for career development or advancement).

⁴⁶ Alex Collinson, The Toxic Fantasy of the “Side Hustle,” PROSPECT (Aug. 19, 2019), https://www.prospectmagazine.co.uk/politics/side-hustle-meaning-work-second-jobs.

⁴⁷ William Glass, “Hustle”: What it Means and Why We Use It, MEDIUM, (Mar. 9, 2017), https://medium.com/@williamglass/hustle-what-it-means-and-why-we-use-it-b07a94928bca (noting that both Al Capone and Mark Zuckerberg could be hustlers, and that hustle “is how conartists create schemes that take advantage of good people. It’s how people get jobs they have no business getting. It’s how terrible products still sell. But hustle is also how humans survive in a world where lots of things eat humans to get by. It is how we do all the best things we do. Hustle means that bad circumstances and a bad start don’t have to determine what becomes of you.”).

⁴⁸ Isabella Rosario, When the “Hustle” Isn’t Enough, CODE SWITCH, NPR, April 3, 2020, https://www.npr.org/sections/codeswitch/2020/04/03/826015780/when-the-hustle-isnt-enough.

⁴⁹ Kristen Barker, Do You Use the Term Side Hustle?, WOMEN’S ENTREPRENEURSHIP AT CORNELL, (Aug. 5, 2019), http://bofainstitute.cornell.edu/more/do-you-use-the-term-side-hustleresults-from-our-investigation/. But see Joey Montano, Stop Misidentifying the Meaning of “Side Hustle,” MEDIUM (Nov. 15, 2018) (asking probing and difficult questions like “Is it a “side hustle when you work 3 part-time jobs that still require you to live paycheck to paycheck?”).

that 1/3 of their drivers only worked for Uber on a full-time basis. ⁵⁰ Roughly another 1/3 worked part-time for another platform or part-time job, with a final 1/3 driving for Uber on top of a fulltime job.⁵¹ For at least 2/3 of Uber drivers at that point, ridesharing work was not a side-hustle, but either their main source of income or a major source of income.⁵² As another data point, a 2018 study by Statisa found that only 4 percent of gig workers are working less than ten hours per week. The majority of gig workers, 54 percent, worked from eleven to thirty hours per week, a fairly substantial part-time job.⁵³ Finally, 41 percent of the gig workers surveyed worked between thirty one and sixty hours on platforms, with another 3 percent working more than sixty hours per week.⁵⁴ The United Nations International Labor Office’s study of crowdworkers showed that nearly 40 percent of those surveyed treated crowdwork as a full-time job, and only 15 percent said that they worked due to boredom or a lack of anything else to do.⁵⁵

These statistics mean that the story of the “side hustle” fails to take into the account the situation of gig workers who are working for on-demand platforms on either a robust part-time or what even may resemble a full-time basis. As an example, Ayana Headspeth, a mother-of-four who worked on many leading gig platforms used gig platforms as her main source of income since 2014.⁵⁶ She remarked that during the pandemic, she was especially concerned about her ratings on the Instacart platform: “When you’re taking away from my ratings, you’re taking away from my ability to make bills, my ability to buy groceries, my ability to clothe my children because this isn’t just a gig for me, this is how I make it.”⁵⁷ For a significant share of gig workers, platform work is their equivalent of a full-time job.

And during the pandemic, with unemployment rates reaching as high as 14 percent during the Spring of 2020,⁵⁸ laid-off or furloughed employees turned to gig work more-or-less full time

⁵⁰ Jonathan V. Hall & Alan Krueger, An Analysis of the Labor Market for Uber’s DriverPartners in the United States 10 (Nat’l Bureau of Eco. Research, Working Paper No. 22843, 2014), https://www.nber.org/system/files/working_papers/w22843/w22843.pdf.

⁵¹ Id.

⁵² *Id. *

⁵³ Total Number of Hours Worked Per Week By Gig Economy Workers in the U.S. 2018, STATISTA, (Jan. 20, 2021), https://www-statista-com.ezp.slu.edu/statistics/916508/gig-economytotal-number-hours-worked-per-week/.

⁵⁴ *Id. *

⁵⁵ Janine Berg, Income Security in the On-Demand Economy: Findings and Policy Lessons from a Survey of Crowdworkers, 37 J. COMP. LAB. L. & POL’Y J. 543, 565 (2016).

⁵⁶ Matthew Lavietes & Michael McCoy, Waiting for Work: Pandemic Leaves U.S. Gig Workers Clamoring for Jobs, REUTERS, (Oct. 19, 2020), https://www.reuters.com/article/us-biggerpicturehealth-coronavirus-gigw/waiting-for-work-pandemic-leaves-u-s-gig-workers-clamoring-for-jobsidUSKBN2741DM.

⁵⁷*Id. *

⁵⁸Heather Long & Andrew Van Dam, U.S. Unemployment Rate Sours to 14.7 percent, the Worst Since the Depression Era, THE WASHINGTON POST (May 8, 2020, 4:05 PM), https://www.washingtonpost.com/business/2020/05/08/april-2020-jobs-report/. Summer 2020 also saw high unemployment. U.S. Dep’t of Labor, Unemployment rate 16.1 percent in Massachusetts, 4.5 percent in Utah, in July 2020, U.S. BUREAU OF LABOR STATISTICS (Aug. 27, 2020), https://www.bls.gov/opub/ted/2020/unemployment-rate-16-point-1-percent-in-

to make ends meet. ⁵⁹ The same influx to gig platforms was similar to past recessions as well. For example, during the early part of the 2010s new gig platforms surged based on desperate job seekers who were recovering from the fallout from the 2008 financial crisis and ensuing recession. And even during smaller economic downturns, such as government shut-downs or temporary furloughs, gig platforms would see an influx of new workers joining them. ⁶⁰ For many, even those who do have a full-time job, a side hustle is required because of stagnating wages in fulltime employment and rising expenses, including a sharp spike in housing costs.⁶¹ During the pandemic, with so many workers flooding onto platforms, average wages have been pushed down.⁶²

One major implication of gig work as a “side hustle” is that if gig work is something that people only engage in occasionally when they are in need of extra income, that implies that with these one-off, occasional transactions, employment regulation is not needed. Not only unnecessary, but perhaps these regulations would be unwanted and perhaps even become burdensome. As labor economist Janine Berg has said about online computer crowdwork:

Crowdwork shares many similarities with other forms of nonstandard employment such as temporary work, part-time work, or temporary agency work. In addition to the casual and unstable nature of the work, crowdwork as well as other work in the “on-demand economy,” is often portrayed as additional income for secondary earners, and thus, not real work. This discourse has existed for decades in debates on pay and regulation of nonstandard employment. For example, opponents of the U.S. minimum wage have often argued (incorrectly) that minimum wage earners are predominantly teenagers working part-time, retail jobs, and thus there is no need to increase their pay as they are working for pocket money. Or stated differently, that the job may be precarious, but the worker is not.⁶³

Similar stories have been told in the past about women’s participation in the labor force, as a type of justification for keeping women’s wages below that of men’s. During the Industrial Revolution, women who worked in factories were routinely paid less than men who did the same or similar

massachusetts-4-point-5-percent-in-utah-in-july-2020.htm (noting overall unemployment rate of 10.2 percent nationwide).

⁵⁹ Gig Workers Face Shifting Roles, Competition in Pandemic, AP, (July 6, 2020), https://www.voanews.com/covid-19-pandemic/gig-workers-face-shifting-roles-competitionpandemic.

⁶⁰ Jory Heckman, Furloughed with Nowhere to Go, Feds Give “Gig Economy” a Shot, FEDERAL NEWS NETWORK, Jan. 18, 2019, https://federalnewsnetwork.com/governmentshutdown/2019/01/furloughed-with-nowhere-to-go-feds-give-gig-economy-a-shot/ (describing government shutdown and one furloughed employee’s efforts to work in the gig economy).

⁶¹ Alissa Quart, The Con of the Side Hustle, N.Y. TIMES, (April 6, 2019), https://www.nytimes.com/2019/04/06/opinion/sunday/tax-day-side-hustle.html.

⁶² Alana Semuels, “It’s a Race to the Bottom.” The Coronavirus is Cutting Into Gig Worker Incomes as the Newly Jobless Flood Apps, TIME MAGAZINE, (May 15, 2020), https://time.com/5836868/gig-economy-coronavirus/.

⁶³ Berg, supra note 55.

work.⁶⁴Factory owners during this time justified lower wages for women because they were assumed to have claims on the earnings of male relatives, whether fathers, brothers, or husbands. As such, it was assumed that women were only working for themselves; they had no other relatives to support. Because women would therefore spend their wages on vanity purchases or frivolities, sometimes referred to as “pin money,” this was used as a justification for keeping their wages lower. ⁶⁵ This rhetoric made a return during the 1950s and 1960s, as temporary agencies promoted the view that their workers were largely bored housewives looking for work as a stimulating amusement. ⁶⁶ One executive of a temporary agency described their average worker as someone who did not “want full-time work, but she’s bored with strictly keeping house. Or maybe she just wants to take a job until she pays for a davenport or a new fur coat.”⁶⁷ If the money paid was not really necessary for making a living, then maybe it was no surprise that the remuneration offered for such positions was low.

Returning to the language of side hustles, this deeper examination has shown that this is not a necessarily an accurate description for the majority of gig workers who are spending more than ten hours a week on platforms, and the almost one-fifth whose work on platforms approaches fulltime work. The question of whether gig workers actually “need” the wages or whether they are merely working for “extra,” has been again re-animated in the examination of gig work, in a way that is actually harmful in ensuring minimum legal standards. In addition to this side hustle minimization of the work, another misconception that has been problematic for gig workers is the idea that the work that they do on platforms is only for convenience and is not really necessary.

B. Casual Workers

Another misconception generally shared about gig work is that gig workers are engaged in frivolous or casual work undertaken only for customer convenience. Platformsthemselves fostered this convenience view in the early 2010s as they sought to attract customers to use their various websites and apps. As a selling point to induce new customers to sign up and use their services, many platforms promoted the speed and ease with which on-demand platforms could fulfill the customer’s every need or whim. Further, none of those wants and needs were too small, niche, or frivolous to fulfill; in fact, platforms allowed for the monetization of many smaller tasks that in the past would likely not have resulted in paid work. ⁶⁸ Whether that need was for an electrified scooter at every corner, or an umbrella rental for as long as a rainstorm lasted, where a possible

⁶⁴ JOYCE BURNETT, GENDER, WORK, AND WAGES IN INDUSTRIAL REVOLUTION BRITAIN (2008) (examining wage differentials).

⁶⁵ There are conflicting descriptions of the term “pin money.” Some use the term to refer to a small amount of money that is spent on wanted, but non-essential, items. Others have used the term to refer to the household allowance that a male breadwinner might provide to a nonworking spouse or female family member to use as discretionary spending. See Janice Traflet, Gendered Dollars: Pin Money, Mad Money, and Changing Notions of a Woman’s Proper Place, 26 ESSAYS IN ECON. & BUS. HIST. 189, 190 (2008).

⁶⁶ ERIN HATTON, THE TEMP ECONOMY 38 (2011).

⁶⁷ *Id. *at 38.

⁶⁸ Miriam A. Cherry, Cyber Commodification, 72 MD. L. REV. 381 (2013).

demand surfaced, an on-demand platform seemed to spring up to cater to that demand.⁶⁹

Platforms validated even seemingly frivolous customer requests for assistance. In fact, TaskRabbit founder Leah Busque would say that the company’s origin story involved her realization that there was no time to replenish her supply of dog food, just at the precise moment that she and her husband were about to take a taxi to meet friends for dinner. ⁷⁰ Worried that stores would be closed by the time the social obligation had ended, Busque and her husband wished that they could have paid for last-minute help from someone who could pick up more dog food while they dined. ⁷¹ Other examples used in the early days of platforms included services in San Francisco that offered to pick the customer’s car and drive it to a parking spot, then deliver the car to whatever destination the customer wanted it at the end of the day. ⁷² And, of course, no discussion of on-demand services would be complete without mention of paying someone else to stand in a line for them⁷³ or paying another for the delivery of luxury coffee drinks. ⁷⁴

Further complicating the matter, some platforms have used or continue to use alternate terms to refer to the process of work, and even to the workers themselves. For example, rather than being hired and going through an employee orientation, workers on these platforms go through a similar process, yet it is called “onboarding.”⁷⁵ In the crowdwork context, onboarding presumably involves establishing an online account, some amount of learning about the company, having questions answered, and then being set up to work. The use of the term “onboarding,” however, evades the word “hiring,” which appears in many statutes in relation to labor rights. Onboarding also avoids the traditional phrase “employee orientation.” Thus, “onboarding” is a euphemistic evasion to describe what is a fairly straightforward “hiring” process.

Similarly, an employee who was not performing well might be given feedback, recommendations for improvement, or referred to progressive discipline, then ultimately fired if not performing the quantity and quality of work expected. However, workers in the gig economy

⁶⁹ Lindsay Maizland, A Chinese Company Tried Making Umbrella Sharing a Thing. It Didn’t Go Well, VOX (July 11, 2017, 4:20 PM), https://www.vox.com/world/2017/7/11/15952886/chinaumbrella-sharing-fail.

⁷⁰ See, e.g., Layne Winn, TaskRabbit Founder on the Pressure Entrepreneurs Face to Succeed, ABC NEWS (Dec. 13, 2019, 10:09 AM), https://abcnews.go.com/Business/taskrabbit-founderpressure-entrepreneurs-face-succeed/story?id=67707440 (noting that founder of TaskRabbit platform did so in response to a need for late night dog food delivery).

⁷¹ Neil Koenig, Leah Busque: How Taskrabbit Grew by Leaps and Bounds, BBC NEWS, Oc. 24, 2013, https://www.bbc.com/news/business-24641936.

⁷²Michael Finney, New Valet Apps Take Away Stress of Parking in San Francisco, ABC7 NEWS (Feb. 18, 2015), https://abc7news.com/san-francisco-parking-valet-apps/524008/.

⁷³ Kathleen Elkins, People are Paying Up to $1,500 for Someone Else to Take their Place in Line, BUSINESS INSIDER (Oct. 25, 2015, 11:30 AM), https://www.businessinsider.com/professional-line-sitters-2015-10.

⁷⁴ Gloria Dawson, Why Coffee Delivery is the Future of On-Demand Ordering, EATER (Jan. 14, 2016, 12:00 PM), https://www.eater.com/2016/1/14/10758072/starbucks-delivery-dunkindonuts-office.

⁷⁵ Will You Pass the Uber Background Check?, Ridesharing Driver (Jan. 15, 2018), https://www.ridesharingdriver.com/will-you-pass-the-uber-background-check/ (informing Uber drivers of details surrounding the background checks they must complete before “onboarding”).

are not fired, rather, they are “deactivated.”⁷⁶ This impersonal terminology conceals a destructive truth; deactivation is potentially worse than being fired. A gig worker only discovers their deactivation when they log into the app and find that their account is erased and they are banned from returning to the platform. ⁷⁷ This may also include erasure of data or information built up around the worker’s account. The platform is under no requirement to give a reason for deactivation, with no appeal or recourse on the part of the worker. Further, deactivation can be an automatic response to user ratings falling below a number, as a result of algorithmic management.⁷⁸ In fact, many of the initial gig economy settlement negotiations requested the right to “grieve” a deactivation to an arbitrator.⁷⁹

In any event, this use of alternate language for employment terms is far from an accident. In fact, a leaked document from European food delivery app Foodora exposed these linguistic manipulations for what they clearly are – attempts to cover up or disguise the existence of an employment relationship. The leaked Foodora document provides synonyms for many of the terms that exist for employees and directs its managers to use those other terms. For example, instead of hiring riders at a recruiting center, personnel is engaged in onboarding at a supply center. ⁸⁰ Rather than refer to shifts, supervisors refer to riders’ availability, and “log ins” rather than clocking in. ⁸¹ Riders are supposed to talk about their “kit” or “equipment” rather than

⁷⁶ See Sydney Brownstone, Seattle Lyft Driver Wants to Know Why She Was Deactivated after Attending a Teamsters Organizing Meeting, THE STRANGER (Nov. 15, 2015, 11:47 AM), https://www.thestranger.com/blogs/slog/2015/11/19/23163805/seattle-lyft-driver-wants-toknow-why-she-was-deactivated-after-attending-a-teamsters-organizing-meeting (detailing “deactivation” of Lyft driver who organized meeting for drivers at union office).

⁷⁷ Fired from Uber: Why Drivers Get Deactivated, and How to Get Reactivated, RIDESHARING DRIVER (Feb. 7, 2018), https://www.ridesharingdriver.com/fired-uber-drivers-get-deactivatedand-reactivated/ [https://perma.cc/N6UX-67T8] (stating that Uber rarely actually states “you’re fired,” but rather says things like “Your account needs attention” or “Your account has been placed on hold”); Carolyn Said, Uber, Lyft Drivers Fear Getting Booted from Work, S.F. CHRON. (Oct. 14, 2018, 12:39 PM), https://www.sfchronicle.com/business/article/Uber-Lyft-drivers-feargetting-booted-from-work-13304052.php (describing instances of workers discovering that their accounts had been deactivated).

⁷⁸ Deepa Das Acevedo, Invisible Bosses for Invisible Workers, or Why the Sharing Economy is Actually Minimally Disruptive, U. CHI. LEGAL F. at 35, 42 (2017), https://legalforum.uchicago.edu/publication/invisible-bosses-invisible-workers-or-why-sharing-economyactually-minimally-disruptive.

⁷⁹ The practice of deactivation has encountered significant enough issues that it has become part of the settlement negotiations in the Uber and Lyft litigations. Cotter v. Lyft, Inc., 176 F. Supp. 3d 930, 934 (N.D. Cal. 2016); O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 1117-19 (N.D. Cal. 2016). Under the terms of these settlement agreements, drivers would have the ability to be heard by a labor arbitrator before being disconnected. Cotter, 176 F. Supp. 3d at 934; O’Connor, 201 F. Supp. 3d at 1117-19.

⁸⁰ Sarah Butler, Deliveroo Accused of ‘Creating Vocabulary’ to Avoid Calling Couriers Employees, THE GUARDIAN, Apr. 5, 2017, https://www.theguardian.com/business/2017/apr/05/deliveroo-couriers-employees-managers.

⁸¹ Id.

uniforms; and their “invoices” rather than pay slips.⁸² While inventing this alternate terminology is certainly creative, the lengths that some platforms will go to in order not to call their workers “employees” is even more incredible.

Platforms have referred to their workers in doublespeak, dubbing them “Ninjas,” “Turkers,” “Rabbits,” “Taskers,” “Roos,” “Partners,” and even somewhat pathetically at times, “Friends.”⁸³ It is true that some of the terms platforms use, like “Ninjas,” are deferential and respectful of someone’s expertise. Yet others of these terms for workers are cutesy, such as “Roos,” might be seen as trivializing. Still others, for example, calling a human worker the name of an animal, could viewed as dehumanizing.⁸⁴ TaskRabbit stopped calling its workers “TaskRabbits” or “Rabbits” in 2014, according to their “Hutch” weblog, as part of a “branding” campaign.⁸⁵ Since that time, the platform has used the term “Tasker.” While being called a “Tasker” is certainly not as dehumanizing as being called a “Rabbit” or “TaskRabbit,” it is still a far cry from being called a worker. There is a logic behind devising this parallel terminology, as it discourages gig workers from forming an identity as a worker or relating to other workers in similar situations, which could lead to solidarity and collective organizing.

Ultimately, gig workers have had to push back against the view that the work they do is somehow frivolous or not as important than that done by other workers. Their work itself, promoted as being marginal to begin with, is a clue that the gig workers themselves are just cogs in the machine, largely fungible or disposable. Cutesy nicknames and alternate terms for the workers or the work they perform have also held back gig workers. Apart from these views that minimize both gig workers and the type of work that they perform, the next section will explore the ways that gig work is often made invisible to customers who use on-demand platforms.

C. Gig Work as Invisible Work

Some of the practices and methods of on-demand can serve to make gig workers invisible. The invisible nature of some work is another distinct area of inquiry, encompassing wide-ranging practices including emotional and unremunerated labor, such as acting as someone’s “work spouse.” As co-editor of the book* Invisible Labor: Hidden Work in the Contemporary World,* my contribution focused on the ways that invisible labor was being performed on platforms seemingly without customers, co-workers, or sometimes even the workers themselves being aware of it.⁸⁶ As an example, think of content editors on Facebook and other social media websites who work to remove material that violates the terms of service; while some of these

⁸² Id.

⁸³ Start Tasking. Earn Money Your Way, TaskRabbit, https://www.taskrabbit.com/become-atasker; Become a Driver-Partner, Uber, https://help.uber.com/h/3362f824-b3de-4cc3-979d6bafcbc24290.

⁸⁴ Alyson Shontell, My Nightmare Experience as a TaskRabbit Drone, BUSINESS INSIDER, (Dec. 7, 2011), https://www.businessinsider.com/confessions-of-a-task-rabbit-2011-12.

⁸⁵ Unveiling the New TaskRabbit, THE HUTCH, (June 17, 2014), https://blog.taskrabbit.com/unveiling-the-new-taskrabbit (“Some changes are small – for starters, we received some feedback on our brand terminology. So, once The New RaskRabbit is live, TaskRabbits will be called “Taskers” and Task-Posters will be called “Clients.”).

⁸⁶ INVISIBLE LABOR: HIDDEN WORK IN THE CONTEMPORARY WORLD (Marion Crain, Winifred Poster, & Miriam A. Cherry eds.. 2016).

workers are employees, others work on content editor jobs through crowdworking platforms. Some of the flagged content might include violent scenes or pornography. Although the content moderator’s job is vital for keeping the platforms running, few users know that humans are performing the work. Rather, most believe the job is done by artificial intelligence.⁸⁷ Unfortunately, the job is wrenching for those who are performing it. They see the worst parts of human nature constantly, and it wears on them psychologically.⁸⁸

As Mary Gray and Siddharth Suri explain in their book Ghost Work, artificial intelligence has not yet evolved to a point where it can help with complex tasks. ⁸⁹ And so, in the meantime human labor fills in the gaps, whether in transcribing information, tagging and labeling products, helping to train artificial intelligence, or dealing with judgment calls over what content on social media is offensive. Because platforms make them invisible to the end user of the website, these workers have struggled to be recognized. While some of these workers “behind the machine” are employees, others do computer work through crowdwork platforms like Amazon’s Mechanical Turk, Upwork, or Crowdflower.⁹⁰ As I have discussed elsewhere, because requesters can reject work and not pay for it, wage theft in this sector is rampant.⁹¹ In addition, workers have to search for each individual task they will complete, and that is time for which they are not paid. Some workers have established message boards and advice listings to help them write scripts or use bots to increase their rate of pay. Another fix was the Turkopticon platform, which allowed workers to rate requesters based on their generosity and fairness.⁹² Still, the average wage on work platforms like Amazon Mechanical Turk are roughly half of the United States minimum wage of $7.25/hour. ⁹³

⁸⁷ Casey Newton, The Trauma Floor, THE VERGE, (Feb. 25, 2019), https://www.theverge.com/2019/2/25/18229714/cognizant-facebook-content-moderatorinterviews-trauma-working-conditions-arizona.

⁸⁸ Id. (“That people don’t know there are human beings doing this work is, of course, by design. Facebook would rather talk about its advancements in artificial intelligence, and dangle the prospect that its reliance on human moderators will decline over time. But given the limits of the technology, and the infinite varieties of human speech, such a day appears to be very far away. In the meantime, the call center model of content moderation is taking an ugly toll on many of its workers.”)

⁸⁹ MARY L. GRAY & SIDDHARTH SURI, GHOST WORK (2019).

⁹⁰Christopher Mims, Without Humans, Artificial Intelligence is Still Pretty Stupid, WALL ST. J. (Nov. 12, 2017), https://www.wsj.com/articles/without-humans-artificial-intelligence-is-stillpretty-stupid-1510488000.

⁹¹ Miriam A. Cherry & Winifred R. Poster, Corporate Social Responsibility and Crowdwork, RESEARCH HANDBOOK ON DIGITAL TRANSFORMATIONS (F. XAVIER OLLEROS & MAJLINDA ZHEGU, EDS. 2016) (describing instances in which wage theft happens when requesters reject the work on the platform); Alana Semuels, The Internet is Enabling a New Kind of Poorly Paid Hell, THE ATLANTIC, (Jan. 23, 2018), https://www.theatlantic.com/business/archive/2018/01/amazonmechanical-turk/551192/.

⁹² M. Six Silberman & Lilly Irani, Operating an Employer Reputation System: Lessons from Turkopticon 2008-2015, 37 COMP. LAB. L. & POL’Y J. 505 (2016).

⁹³ Andy Newman, I Found Work on an Amazon Website. I Made 97 Cents an Hour, N.Y. TIMES (Nov. 15, 2019), https://www.nytimes.com/interactive/2019/11/15/nyregion/amazon-mechanicalturk.html; Alex Mayyasi, Who Makes Below Minimum Wage in the Mechanical Turk

All of these various views of the on-demand economy – that gig workers are only there for a “side hustle,” that the platforms are there only for convenience to cater to high-maintenance customers, and that the work does not seem visible at all – convey a narrative that gig workers are somehow marginal or “less deserving” of employment protections than other workers. If gig workers have another job, but are working on platforms for extra, supplemental income, then the narrative would tell us that these workers do not “need” employee benefits or higher pay, as they are not using these platforms for survival. If the platforms and their services are not critical, visible, or important, than the fact that workers on these platforms make marginal wages or even below minimum wage is not particularly important either. And, finally, gig workers may be invisible in the eyes of the law, because of the way that their work relationship is categorized by the law. While employees receive benefits and protections, independent contractors or selfemployed workers do not. The next section details the gig workers’ legal struggles to pursue the rights and protections that employees are entitled to.