The COVID pandemic drastically changed many people’s relationship with their work. Many people lost their jobs, with early job losses disproportionately impacting women, immigrants, and lower-income workers. While many people realized their jobs or entire industries could be transitioned to virtual work, this was not the case for many frontline workers. The Pew Research Center reported that over 60% of people surveyed did not have jobs that could transfer to virtual employment. Facing health, transportation, and cost challenges, many workers reconsidered their relationship with their employment, and the country saw a dramatic rise in workers’ rights movements and unionization efforts. The pandemic, combined with increasing labor shortages and high-profile union litigation with companies such as Alphabet, Amazon, and the New York Times, resulted in the rise of the largest labor movement in U.S. history. Perhaps the most high-profile of these pandemic-motivated unionization efforts was the historic vote to unionize a Staten Island, New York, warehouse belonging to Amazon, the second-largest employer in the U.S. Between October 2021 and March 2022, union representation petitions filed with the National Labor Relations Board (NLRB) increased 57% from the previous year. Additionally, the highest number of American workers reported that they approved of unions since 1965.
The enormous amount of media attention, coupled with the growing economic and political power of the labor movement, had a lasting impact on the legal policies that governed unions, bringing attention to many of the hurdles that needed to be overcome to successfully organize a workplace union. The many struggles organizers faced when going up against massive, well-resourced employers gained attention on a national stage. For example, employees at an Amazon warehouse won an unfair labor practice charge against their employer, claiming that Amazon had unlawfully required employees to attend captive-audience meetings, where workers were mandated to listen to lectures promoting misleading information about unions. General Counsel of the National Labor Relations Board, Jennifer Abruzzo, suggested broadening union access to public spaces and reinstating the card majority that would require employers to recognize unions after being presented with a simple majority of union authorization cards.
However, many of these debates revolved around union representations authorized by the National Labor Relations Act (NLRA). The NLRA explicitly exempts certain classes of workers from its protections relating to workplace collective bargaining. These exempted workers include public-sector employees, agricultural workers, domestic workers, and independent contractors. Many of these workers are already disadvantaged within the labor market, for example, agricultural workers who are primarily immigrants with mixed-documentation status. Similarly, women make up an overwhelming majority of domestic workers in the United States, and over half of domestic workers are people of color. Independent contractors are a very diverse workforce, including white-collar workers who contract out their professional services, freelance creatives, and app-based workers who provide basic services like transportation or delivery. Concerningly, evidence suggests that the independent contractor’s workforce primarily consists of workers who may be left out of traditional labor models.
Much independent contract work has colloquially been dubbed “gig work,” defined as short-term employment done on an employee’s own schedule. People were able to use gig work as a cushion between jobs, or as a way to earn additional cash. Gig workers have long been cited as an indicator of how the American labor market is changing rapidly, with workers presumably seeking increased flexibility with fewer requirements. On the other hand, some labor experts argue that gig workers actually operate in the “shadow” of the labor market. Gig economy workers, therefore, can be classified as those reliant on gig work for their basic income. These workers tend to be younger people of color, have lower education levels, and conduct more physical labor. There is also a strong gender dynamic at play; many women need flexible working hours and short-term schedules to care for family members, such as relatives or children. Alternatively, some workers use gig work to supplement their income from a traditional labor market job. This demographic is generally older, more highly educated, and conducts more online tasks. Perhaps this could be a reason that independent contracting has not made the same strides in union organizing, compared to agricultural workers or domestic workers. There is still a perception among labor scholars that many gig workers are highly educated white-collar workers who are moonlighting to make money on the side. Why would these workers need increased protections?
However, labor unions and workers’ rights activists have attempted to argue that many gig workers have been “misclassified” as independent contractors. They argue that the realities of many workers’ situations more accurately fit the traditional definition of “employee” under the NLRA. Transportation network companies and other gig platforms have very publicly opposed union efforts to expand “employee” classifications through antitrust law and private campaigns against worker protection laws.
As part of their response to the classification issue, unions around the country, including AFL-CIO, UAW, and the Teamsters, have advocated for the Congressional passage of the Protecting the Right to Organize Act (PRO Act). If passed, the PRO Act would be the most significant piece of legislation governing labor law since the Great Depression. Certain provisions could also have a significant impact on workers who might be misclassified as “independent contractors” or “supervisors” by expanding the legal definition of “employees.” The Act also modernizes the NLRA by improving available remedies, such as imposing financial penalties on companies and individual corporate officers who violate the law and giving workers the option to bring such cases to federal court. It would also prohibit captive-audience meetings, establish a process for mediation and arbitration to help the passage of a first contract, and prevent employers from hiring replacement workers (“scabs”) during a strike. If politically feasible, the PRO Act has the potential to expand the strongest possible protections nationally. However, the political realities of this stagnant legislation are not a good short-term bet. Accepting that the federal legislative route is largely untenable for the foreseeable future, states, localities, and local judiciaries have stepped in to try to extend protections to these workers instead.
PayUp and the Driver’s Right Ordinance in Seattle
The City of Seattle has been pioneering experiments in how to extend workers’ protections to independent contractors, farmworkers, and domestic workers. Washington already has an expansive definition of “workers,” beyond the federal definition of “employee” in the NLRA. For example, to obtain workers’ compensation in Washington, a claimant need only prove they are a “worker” which is defined as “engaged in the employment of an employer . . . by way of manual labor or otherwise in the course of his or her employment; also every person in this state who is engaged in the employment of or who is working under an independent contract, the essence of which is his or her personal labor . . .” While somewhat repetitive, this definition is ultimately a much more inclusive and lenient test than the tests used to define “employee” under federal law. The Washington government, therefore, is already amenable to the concept that there are workers who may not be classified as “employees” under the federally recognized definition, who are deserving of certain labor benefits afforded to other workers.
PayUp. A report published in 2022 found that delivery app companies like DoorDash and Uber Eats were paying their drivers below the state minimum wage. Partly in response to the report’s exposé that the companies were flaunting state law, later in 2022, the Seattle City Council passed the “PayUp” legislation. The bill guaranteed a minimum wage for app-based delivery drivers, which went into effect on January 13, 2024. This legislation required network companies to pay workers a minimum amount based on the time worked and miles traveled. The bill faced extensive criticism. Industry representatives from Uber and Instacart argued that the legislative process had unfairly shut out companies, resulting in a rigid policy that could not account for differences across the delivery sector. Some delivery workers posted “Fight the Fee” signs on vehicles to protest a $5 pay hike that companies such as Uber passed on to customers as a result of the bill. In just the first year of its rollout, the legislation was threatened with cutbacks. The Seattle City Council considered a revision that would reduce the set hourly and per-mileage rates. The cutbacks were indefinitely stalled when the revision was delayed for a vote. This points to one of the pitfalls of utilizing local and state ordinances: local officials’ ability to quickly repeal or backtrack laws in direct response to loud voices with deep pockets, particularly in changing political landscapes.
Driver’s Rights Ordinance. Another keystone of the Seattle City effort to extend protections to rideshare workers was the 2015 “driver’s bargaining ordinance,” which was passed unanimously by the City Council. The ordinance created a collective bargaining system for for-hire drivers classified as independent contractors. Many of the drivers who advocated for the legislation drove for Uber and Lyft and were tired of the companies’ unilateral control over their activities, payments, and ability to use the apps to get work, despite their seemingly independent contractor status. In many ways, the Driver’s Rights Ordinance seeks to mirror the NLRA. It has a similar statement of purpose and includes many of the same protections. The ordinance begins with a statement of purpose “grounded in both commercial stability and worker rights,” and is more protective than the NLRA. The legislation discusses the importance of worker safety, drawing parallels to other industries with collective bargaining rights and noting that such protections have reduced accidents and improved driver and vehicle safety performance.
Beyond the intent and purpose of the legislation, the substance creates an elected union that acts as the exclusive representative of the qualifying drivers. The union is created and chosen through a process slightly akin to the NLRA collective bargaining process. It also includes a good-faith bargaining requirement and lays out mandatory subjects, including safety measures, pay, and work hours. It also gives the City of Seattle the right to investigate and pursue alleged violations of the ultimate agreement between the union and the transportation network companies (TNCs) and creates a private right of action should companies infringe on the legislation.
However, a key feature of Seattle’s model is that it does not include the drivers or other gig-worker independent contractors under the protection of the NLRA. It keeps them classified as independent contractors, a highly controversial move.
Court Challenges. The “cartelization” of ridesharing is a common response hawked by consumer protection watchdogs, who argue that collective organizing by independent contractors is essentially collusion to drive up prices for consumers. The Sherman Antitrust Act has historically been mobilized against the collective organization of independent contractors. Rideshare drivers essentially straddle the line between employees and independent contractors, with features of their relationship with the TNCs reflecting traditional employees, and certain features reflecting traditional independent contracting models. While courts have yet to articulate a universal test for “employee” status, the key factor is control exerted by the platform over the actions and behavior of drivers. Rideshare drivers control important aspects of their working conditions, such as when and how much they work and whether they have other jobs or work for other ride-sharing enterprises. However, Professor Marina Lao points out that drivers do not have control over the price that they charge. Additionally, the work done by rideshare drivers is usually integral to the platform’s main service, with very few opportunities for advancement or entrepreneurship. Professor Lao concludes that this level of control by the driver is inconsistent with characterization as an employee.
However, there is a labor exemption in the Sherman Act that some have argued could apply to rideshare drivers. Several provisions of the Act collectively make up this exception, shielding labor organizations participating in collective bargaining from antitrust liability. Congress included the labor exemption to protect the economic interests of workers facing very powerful buyers, which is akin to the rideshare driver situation. The exemption reflects the fact that society has other values besides just a free market economy, such as fair treatment of workers. Although “cartelization” or price-fixing has historically been a concern with independent contracting, Professor Lao argues that rideshare drivers do not have enough power in the TNC employment model. Take, for example, a group of physicians collectively negotiating prices with health insurance plans, groups of fishermen setting costs for their annual catch, or sellers of chicken grease reselling to processers. Professor Lao contrasts these workers with rideshare drivers, arguing that sellers of fish and chicken grease are more like real independent businesspeople than drivers in ridesharing enterprises due to the higher level of autonomy and substantial competition between each other in the marketplace. She then compares the rideshare drivers with doctors, who deal in a much more inelastic market (healthcare insurance is far more inelastic than cab services), and the much higher market power that they have. Compared to these other classes of workers, Professor Lao concludes that rideshare drivers have a much stronger argument for why they should be given an exemption under the Sherman Act. They are subject to much more control than the actors in the other situations and are much more financially precarious. If rideshare drivers could avail themselves of the Sherman Act labor exemption, organizers could overcome a major legal hurdle.
In practice, the Seattle DRO faced antitrust challenges in the courts. The legislation was challenged on multiple grounds, most notably on federal preemption. The Chamber of Commerce and Rasier, an Uber subsidiary, filed a challenge in district court, likening the drivers’ union to a “cartel” and alleging that “[t]he Ordinance unlawfully authorizes for-hire drivers to engage in . . . per se illegal concerted action by forming a cartel (under the aegis of a QDR), speaking as a single unit through an exclusive representative . . . and engaging in horizontal fixing of prices and contractual terms and in horizontal group boycotts.” The rhetoric used by the plaintiffs was a strong challenge the idea of worker organizing. The Chamber argued that this “cartel” would result in higher costs for companies looking to startup or expand their businesses and consumers. Notably absent from its argument were the benefits to the workers themselves providing the services.
Seattle’s response to the Chamber’s argument was that the ordinance is exempt from federal preemption due to Parker immunity. Parker immunity protects state sovereign acts from antitrust scrutiny. The standard that the City had to prove included a showing that its anticompetitive policy is both “one clearly articulated and affirmatively expressed as state policy” and “actively supervised by the State itself.” The Court ultimately held that both prongs of the Parker test were satisfied. The judges’ statements at oral argument suggested that Uber’s use of abusive psychological policies to get their drivers to work longer hours on little sleep made the ordinance necessary for public safety.
Reception and Impacts. The reception and effects of the ordinance were mixed. Following initial outcry about rising prices for consumers, a 2024 report commissioned by Seattle on the effects of the ordinance noted a dramatic decrease in rideshare trips between the pre-policy and post-policy period. However, the decrease in trips may have in part been caused by the 2020 COVID pandemic; accordingly, the number of trips began to recover in 2022. Passenger wait times remained low. Most significantly, the monthly average gross driver pay ranged between $22.82 and $46.11 (averaging at around $34.34) per hour. This was a significant increase in comparison to the pre-policy monthly average of $21.53 per hour. The report noted that the policy exceeded the goal of raising hourly pay to a $30.30 hourly average per month. Considering the increase in the driver payments solely, the Driver’s Rights Ordinance was successful in increasing driver take-home hourly pay to a living wage.
Washington State Adoption and Controversy. Despite coming under scrutiny for raising rideshare prices and antitrust concerns, as well as facing opposition from some labor unions for compromising on collective bargaining rights, the Seattle model was adopted into a bill passed by the Washington State legislature in 2022. This legislation provides rideshare drivers with the right to unemployment benefits and ensures that the TNC will pay for family and medical leave programs. Under this law, drivers have the right to up to twelve weeks of paid leave in the event of a family or medical emergency, such as the birth of a child.
WB 2076 was not passed without controversy, facing opposition from high-profile labor groups such as the National Employment Law Center (NELP) and the Economic Policy Institute (EPI). In a February 2022 letter, Rebecca Nixon, the Executive Director of NELP, urged the Washington State Senate to oppose the bill, arguing that it would deny TNC drivers “bedrock employment protections” by classifying them as “workers” instead of “employees.” NELP also opposed calculating the minimum payment for hours and sick time based on “passenger platform time,” which did not account for all the time the drivers spent on the job waiting for rides. More existentially, the letter expressed concern that the bill would set a dangerous precedent of a different standard for TNC companies to escape responsibility for misclassifying their drivers, thereby enshrining a “second-class employment status” for Washington TNC drivers. The aforementioned concerns were echoed in a similar letter encouraging opposition from EPI, which noted that the bill would provide no pathway to collective bargaining rights, instead unilaterally setting driver wage rates without input from a collective representative such as a union.
The predictions from these labor-side organizers and researchers may be coming true, because in 2024, Massachusetts ran a ballot initiative, Question 3, which would give rideshare drivers in the state the opportunity to negotiate with the TNCs, similar to the Seattle model. Similar to Seattle’s DRO, the measure cedes independent contractor status and was not objected to by Uber, Lyft, or other rideshare platforms. Whether the Massachusetts model would have been attempted independently from the Seattle attempt is impossible to know, but the passage of Question 3 suggests a potentially larger move towards the model of maintaining independent contractor status in exchange for negotiated agreements with the TNCs.
Pathways Forward: Data Collection, Power-Building Policy, and Organizing for Disruption
Necessity of More Data on Independent Contractor Disaggregated Data
Studies on employee misclassification in Washington have identified over 40,000 misclassified workers in the state, as of 2019. From the same report, conservative estimates of revenue losses to the state and federal government included $152 million in unemployment taxes (an average annual loss of $30.4 million), $384 million in federal income taxes, $299 million in payroll taxes for Social Security and Medicare, and $9 million in federal unemployment insurance over a five-year period. While significant, these numbers are from a 2019 study and are suggestive of the dearth of updated research on the impact of misclassification.
The research on who makes up the independent contractor workforce is inadequate. The workforce is hard to measure, and there is substantial disagreement between sources on the size of the workforce and its demographics. This is probably partially because the range of independent contractor work is wide: it covers freelance consultants, app-based drivers, and informal workers providing in-home assistance. Many independent contractors see themselves as being employed by their clients and, therefore, may misunderstand questions about their independent contractor status.
Having routinely updated information on the demographics of independent contractors, both state and nationwide, is crucial to informed policymaking. Equally important is that this information is disaggregated on the basis of race, gender, immigration status, and other indicators of marginalized employment status. Studies into independent contractors suggest that misclassification and independent contractor status depresses wages for women, low-income earners, and workers of color in particular, but nationwide studies on independent contracting often do not include this information.
The ability to accurately collect data on independent contractors goes hand in hand with enacting policies on extending worker protections, such as minimum wage, workers’ compensation, and just cause requirements for termination. A 2019 study on Washington misclassification drew from employer audit data from the workers’ compensation system administered by the Washington Department of Labor and Industries (L&I). Independent contractor workers’ compensation claims and premiums have been an essential aggregation point for data.
The Harry Bridges Center for Labor at the University of Washington has worked with the Seattle Office of Labor Standards (OLS) to distribute a community survey to understand the impacts of Seattle’s PayUp Ordinance. More surveys and information are required to understand the current employment landscape, as well as which workers are being affected. However, even once adequate data is collected, challenges arise in utilizing that information to build social movements resulting in legislation.
Necessity of Power-Building Legislation
The “chicken and egg theory” refers to the contradiction that sometimes accompanies organizing for legislative change: organizing-enabling laws may often be needed to facilitate social movements, but social movements are needed to enact organizing-enabling laws.
In light of this difficult contradiction, scholars such as Kate Andrias & Benjamin I. Sachs have suggested a jurisdiction-shifting approach. The first approach involves a static transition from federal to state or local policymaking: organizers accept that the social movement is unable to secure a federal law that facilitates organizing growth and instead tailor their vision to pursue change in a smaller jurisdiction. In the second variant, the social movement abandons federal legislative change only for the present. Once the movement secures organizing-enabling legislation in a state or city, it uses that legislation to build power that it exports across jurisdictional lines, potentially to enact similar laws in other states or cities. Ultimately, the social movement can use state and local legislation to build sufficient power so that it can return to the federal government and enact the legislation that it previously was too weak to enact.
Examples of this type of legislation work with regard to workers’ rights include structuring employment laws in ways to allow worker organizations and employers to participate in administrative processes to set wages, benefits, and working conditions for their own industries. Examples include worker boards or industry committees.
Independent contractors can also look to other groups left out of the NLRA, such as farmworkers and domestic workers, for strategies on how to extend available protections. Labor movements are also utilizing new methods, such as the “Bill of Rights,” to claim worker power and set industry standards in spaces where workers are left out of the NLRA. Tireless efforts by organizers resulted in the passage of the Domestic Workers’ Bill of Rights by the Washington State Senate in March 2025. The bill would require domestic workers to receive minimum wage, overtime pay, meal and rest breaks, and protection from discrimination and retaliation.
However, these legislative wins are only possible due to years of on-the-ground organizing. The segmented nature of independent contracting creates a unique challenge for organizers and labor lawyers alike. Many independent contractors might not see themselves as part of a larger workforce, outside of their gig-worker platforms. The isolated nature of the work also creates challenges for workers wanting to form connections within the industry. Technology and social media have stepped in to facilitate some of this connection, with the existence of Facebook groups dedicated to communication between Uber and Lyft drivers. Mobilizing workers utilizing homegrown information-sharing social media is, therefore, a key piece of enacting organizing-enabling laws.
Is there a Role for Disruption as an Avenue for Change?
While disruption is often seen as antithetical to the rule of law and therefore is not generally reviewed by legal scholars as an important part of legal analyses, civil disobedience and lawbreaking have been a natural part of the democratic process throughout America’s history. The NLRA was the product of lawmakers responding directly to violence and disruption by workers organizing into early unions. Disruption has always been a key part of worker self-determination, from the unfettered violence and riots of the late nineteenth and early twentieth century, through to modern-day strikes. If necessary socio-political conditions existed for successful organizing-enabled legislation, that would indicate that there is already (1) the existence of a movement cohesive and strong enough to successfully carry out organized and sustained disruptions, but simultaneously (2) this movement lacks the ability to use traditional political means for legislative wins. There is an inherent tension that is a major roadblock to enacting change.
Under the current federal executive administration, many of the workers who would be pushing for inclusion are struggling with other precarities. For example, some workers may not have documentation status and cannot risk a civil or criminal charge by pursuing disruptive action. Creating a sustainable, disruptive action that would lead to political and legislative reform without incurring retaliative or punitive action under the current administration would also be a challenge.
However, such disruption, combined with strategic legislation, has been successful in other areas of the world. Truckers in South Korea are often hired as independent contractors, facing challenging working conditions where they are forced to unsafely load and unload dangerous chemical products and endure significant unpaid time waiting between jobs. In 2002, the truckers formed a union, TruckSol, which succeeded in reinstating a group of truckers who were fired for protesting their unsafe and unfair working conditions. TruckSol was able to organize using the strength of association and threats of work stoppages, although the government used a return-to-work order to break the strike. TruckSol was able to learn from the Transit Workers Union (TWU) in Australia, which was “one of the first trade unions to link fissuring supply chains to road safety.” TruckSol and TWU began exchanging information in 2013, and supported by its international counterpart, TruckSol was able to pass temporary safe rates legislation in 2020.
A big hurdle American independent contractors face is that the government is not particularly mindful of international labor standards, unlike South Korea, which is very dependent on international labor agreements. While American independent contractors face a very different labor market and political reality, international cooperation and sharing of information could potentially be a step in the right direction, and a way to source new ideas for how to better communicate and organize within the US market.
Conclusion
The future of independent contractors in Washington, and nationally, is still uncertain. Under HB 2076, Washington has begun to roll out the paid family and medical leave program to rideshare drivers. These state-level policies and protections are going to be increasingly more critical as federal protections for independent contractors continue to be rolled back. Under a newly proposed Department of Labor regulation, the test for classification as an independent contractor focuses on the amount of control companies exert over workers, a shift from a more inclusive, multi-part test proposed by the previous administration. However, large swathes of Washington’s workers continue to be affected by the patchwork of laws granting and repealing more substantive labor rights. This blog post has outlined how Washington has become a leader in the area of expanding labor rights to independent contractors and suggested pathways forward requiring stronger coalition building and increased funding for data collection strategies.
