Solidarity by Statute? Experiments in Gig Worker Power

Given the ubiquity of platform-based transportation and delivery companies today, it can boggle the mind that these companies—Uber, Lyft, and DoorDash, to name just a few—only became household names about a decade ago. Platform technology, at its best, can be said to make it easier to organize work and consumption in innovative ways. For example, platforms can facilitate on-demand connection of service providers and service recipients in close to real time; disaggregate jobs into tasks that can then be redistributed to different people in different places; and enable more productive use of underutilized assets, from cars to spare rooms to labor power, with minimal costs.4 Yet, gig companies have insisted that platforms are more than a tweak to old-time management systems. They have claimed, and convinced much of the world, that platforms also transform the nature of work so fundamentally that it is no longer employment, and as such, that over a century of hard-won labor and employment laws do not apply.

But for platform critics, including those in the labor movement, there is very little distinctive about platforms vis-à-vis work and work law. That companies like Uber and Lyft have chosen to adopt a new technology for managing their workforce may (or may not) be a useful or profitable innovation, but it does not change the basics of the labor exchange. Gig companies rely on workers’ labor to operate and make profits, and gig workers rely, in turn, on their wages to live. That these companies use an app to manage their workers, rather than a human boss, is no reason to deny gig workers the same rights and protections as other working people.

From this vantage point, gig companies pulled a sleight of hand. They developed and rolled out new technology that customers, by and large, liked, that made it easier for some passengers to get a ride when and where it was needed. Then, the companies used that new technology to provide cover for an entirely separate profit-maximizing innovation, namely, shedding all legal obligations to workers. As one legal scholar is rumored to have told gig company leaders in the early 2010s, the tech was coupled with a massive conspiracy to evade labor and employment laws.

In the gig industry’s early years, leaders across the political spectrum were broadly ineffectual in addressing the lawlessness of gig companies, caught off-guard by their power and popularity.5 But as time brought perspective and political alliances solidified, local responses have diverged. Many states continue to acquiesce to gig company economic demands; American Legislative Exchange Council-drafted legislation designating that drivers for “transportation network companies” are not employees has been enacted in a wide range of states.6 Other states have leaned even further into the gig company model, supporting “portable benefits” legislation that does more to lower workers’ expectations of employer support than to create real benefits.7

In contrast, a growing minority of cities and states are now fighting back, mobilizing law and state power to bring worker justice to the gig industry. Doing so has meant a bare-knuckled fight to remind people why work and work laws matter, under uniquely hostile conditions. Any locality that attempts to meaningfully regulate these companies faces the risk of corporate boycott: Uber and Lyft repeatedly threaten to leave any locality that adopts pro-worker regulation.8

The legal strategies adopted by these dissenting cities and states fall into three general categories: (1) the employment approach—arguing that gig companies have misclassified their workers under existing laws and/or adopting more capacious tests for employee status, such that gig workers are recognized as employees with all the same rights as other employees; (2) the antitrust approach—accepting defeat and/or leaving for another day the fight over classification, and pushing instead on the antitrust backstop, by invoking creative legal strategies to extend collective bargaining rights to gig drivers as independent contractors; and finally, (3) the public rights approach—accepting defeat and/or leaving for another day the fight over classification, while directly regulating gig work itself as a public-interest matter through occupational and/or sectoral standard setting, along with direct public provisions.

Many jurisdictions have experimented with more than one of these approaches. Or more accurately, many have tried one approach, failed, and then moved on to another. California started with the employment approach, and after a devastating loss, moved to the antitrust track—AB 1340, as I discuss later in more detail. Seattle was the first to attempt the antitrust approach, and after its own major loss, pivoted as best it could to the public rights approach.9 Learning from Seattle’s missteps, first Massachusetts and now California have turned to the antitrust approach.10 All the while, New York City has stood out for its ongoing commitment to the public rights approach, regulating gig work through occupational/sectoral standards and more recently, directly providing public benefits to gig workers—essentials like shared space, restrooms, and bike charging stations11—in other words, the kind of physical and infrastructural supports that an employer would otherwise provide.

It would be a mistake to read too much into this taxonomy. These approaches are variations on a theme, attempts to operationalize a limited legal toolkit to build worker power in the face of staunch opposition. Nevertheless, the different approaches reflect longstanding debates about how the law can best help workers, debates that went largely dormant in public discourse for decades following the New Deal compromise. Is collective worker power or minimum standards more important, or are they each necessary to enable the other? Is the role of the state to enforce legal statuses; to empower workers through contract; or to affirmatively intervene on behalf of workers, recognizing that workers’ rights are in the public interest?

In this grand narrative of legal resistance, California’s story stands out—full of highs and lows, from San Francisco politicians’ stunning complicity in enabling early gig company exploits; the savvy of workers and their leaders, who successfully brought the weight of all three branches of government to bear on the problem of employee classification; the political triumph of money over democracy in the tragicomedy that was Proposition 22; and finally, the rollout of AB 1340, the product of exhausted compromise whose future remains very much in the air.

As the problem of misclassification proliferated across industries in the 2010s, workers and their advocates demanded a better way to assess employee status.12 The common law “right to control” test long used by courts to evaluate employee status, workers argued, was too easy for corporations to manipulate—for instance, by trading in managerial control for technological control. Workers also contended that the test failed to capture the policy commitments underlying labor and employment law, that we want to protect workers because of their importance and their dependency, not merely because they lack “control.” In Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018), the California Supreme Court met the challenge of the moment and adopted what is commonly known as the “ABC” test for employee status. This test presumes workers to be employees unless the hiring entity can establish that the worker is (1) free from control; (2) performs work outside the usual course of the hiring entity’s business; and (3) engages in an independently established trade.13 Soon thereafter, the California legislature codified and extended Dynamex through AB 5. That bill, enacted over ferocious gig company opposition, established the ABC test as the measure of employment status for most California work law issues across most industries.14

AB 5 became effective on January 1, 2020, and in the fall of 2020, a court ordered Uber and Lyft to reclassify their drivers as employees.15 The companies flatly refused. Less than two weeks later, Proposition 22—sponsored and championed by Uber and Lyft to the tune of over $200 million—passed, officially exempting app-based rideshare and delivery drivers from AB 5 and classifying them as independent contractors.16 In place of employment benefits, the law proffered a package of relatively meager minimum standards. And in place of the regular democratic process, Proposition 22 proffered entrenchment, specifying that it could only be amended by a 7/8 supermajority vote of both houses (a threshold effectively unattainable for any contested bill). Unions fought their hardest to have the proposition invalidated, but in July 2024, the California Supreme Court unanimously held Proposition 22 constitutional.17

With the employment approach foreclosed, California advocates regrouped. And a year later, they pivoted to a new strategy: extending collective bargaining rights to gig drivers as independent contractors. This approach, however, was more legally complicated to pursue. It demanded more than granting new rights; it required overcoming federal law long held to preclude granting such rights. U.S. antitrust law, intended to restrict economic competitors from working in concert to unduly influence market dynamics, provides a backdrop set of principles against which economic collective action is judged, including worker collective action. And historically, antitrust law has been understood to permit worker collective action only by employees. When independent contractors have sought to unionize in the same way, they have quickly faced antitrust lawsuits for “forming a cartel” and engaging in “per se illegal concerted action.”18

To address this problem, California drew from the Seattle and Massachusetts models, where legislative experiments in permitting gig worker bargaining had been justified under antitrust law’s state action exemption. Because the U.S. Supreme Court held decades ago that federal antitrust law does not preclude states from exercising their traditional economic authority, California arguably could permit otherwise prohibited economic combinations, like gig worker unions, so long as the state “clearly articulated” the policy purposes for doing so and maintained active supervision of the activity to ensure it furthered those purposes.19

In February 2025, California Assembly members Buffy Wicks and Marc Berman introduced the Transportation Network Company Drivers Labor Relations Act, AB 1340.20 The legislation was drafted to regulate large gig companies engaged in passenger transportation, that is, Uber and Lyft. It would give gig drivers in this sector the right to unionize on a sectoral basis and provide government support in enforcing that right. Uber and Lyft actively opposed the law at first, and politicians were reluctant to move forward without gig company acquiescence. No one wanted another Proposition 22 fiasco.

But in August 2025, Uber and Lyft dropped their opposition in exchange for the legislature’s parallel passage of Senate Bill 371, which reduced their underinsured-motorist coverage obligations from $1 million to $300,000 per incident.21 Governor Gavin Newsom signed AB 1340 into law on October 3, 2025, and the law took effect January 1, 2026, permitting would-be gig worker unions to begin submitting evidence of gig worker support in May 2026.

As enacted, AB 1340 grants the more than 800,000 rideshare drivers in California the right to form driver organizations and bargain collectively over working conditions, as independent contractors. And in a few ways, the law is more supportive of worker organizing than traditional U.S. labor law. First, unlike most collective bargaining in the United States, the law is explicitly sectoral.22 This means that workers do not have to organize separately at each company. Rather, the bargaining unit includes all workers for large gig transportation companies statewide (for now, only Uber and Lyft qualify, but other companies could qualify in the future), and any negotiated contract applies sector wide. Second, the law lowers the threshold of employee support needed to form a union. Toward this end, the law first limits voting to those gig drivers who have driven a minimum number of rides, prioritizing the views of those who are more dependent on the job.23 A 10 percent showing of interest among those workers is sufficient to start the election process, and the union is certified if a majority of voting workers support it. As a second option and in sharp contrast to federal law, a union can also be certified as the exclusive representative based solely on a 30 percent showing of interest.24

While these features of AB 1340 arguably improve on the National Labor Relations Act model, others are more restrictive. First, the statute restricts which organizations are eligible to represent gig drivers under the statute to those with experience in collective bargaining, preventing smaller, independent organizations—some of which have been organizing gig workers for years—from representing workers, raising concerns that that the law unduly favors its sponsor, Service Employees International Union (SEIU) California. (Rideshare Drivers United, meanwhile, criticized the bill).25 And as to what a gig worker union can bargain over, there are several major carve-outs. The mandatory subjects of bargaining are limited and explicitly exclude worker classification; workers cannot bargain themselves into employee status. Moreover, the gig companies retain exclusive control over their algorithms.26 And, there is also no explicit right to strike.

Whatever the limitations of California’s law or the antitrust strategy generally, the summer of 2026 kicked off with several major victories in gig worker organizing. In late May, gig workers in Massachusetts finally reached the necessary threshold of support to form a union without an election. Massachusetts accordingly certified the first ever gig worker union in the United States.27 And just a few days later, on June 2, 2026, the California Gig Workers Union, backed by the SEIU, announced that it had reached the threshold 10 percent showing of support needed to kickstart the union election process.28

California’s gig worker bargaining law is therefore many things at once—a victory, a compromise, a sacrifice, and an experiment. It abandons for now the fight over worker classification, tolerating if not accepting independent contractor status. And for all the political capital needed for its passage, the law guarantees no material gains for gig workers. It gives them only rights and the heavy burden of figuring out how to mobilize them. Still, it would be a mistake to see this law as just a concession to power. In a moment of general despair, when none of the old ideas seem to be working, gig worker bargaining statutes are also an opportunity to experiment, to try out a host of long-incubating ideas from progressive labor and antitrust circles—a sectoral approach to bargaining, extension of the collective bargaining model beyond the employment relationship, a broader platform for building countervailing power—and to see what happens.

Uber and Lyft are not the only actors who aspire to new forms of economic organization. As traditional unions grow ever weaker in a fissured economy where legal lines are strategically drawn to sever corporate responsibility to workers, customers, and the public, progressives have also been rethinking their commitment to old organizational forms. Thus, there is also a leftist move to decenter both the “firm” and employment as the relevant units of analysis and regulation. Within antitrust scholarship, law professor Sanjukta Paul stands out for her brilliant reinterpretation of antitrust law as a site for democratic decision-making about who gets economic coordination rights.29 Paul argues that the “firm” exception to antitrust enforcement is no more and no less than a policy choice, and she advocates for a redistribution of coordination rights to workers outside of any particular economic entity, to allow independent contractors and other small-scale producers to work in concert. In a similar vein, leading labor law scholars Benjamin Sachs and Kate Andrias have called for reconceptualizing labor law as one of many possible socio-legal locations for building countervailing power.30 Here, too, the idea is that we should not fetishize employment or even work itself. There are other socio-legal places where power can be built.

These advocates’ conceptual move is incredibly important. It is also just a first step on a longer road. As labor historian Catherine Fisk has argued, identifying new ways of allocating rights and constructing countervailing power is valuable, and there may be real strategic advantages to new allocations.31 Sectoral bargaining, for instance, would reduce individual employer incentives to oppose unionization, and it would reduce the transaction costs of having to build worker power piecemeal, employer by employer. Yet, whatever the allocation of rights, however brilliant the logic and design of them, the most important question will be how to make those rights real.

One of the core ideas of law and social movement scholarship is that law operates on multiple levels simultaneously, among them, material, ideational, and institutional. Law has material effects, those explicit rights and responsibilities backed by the coercive power of the state. It also has constitutive, meaning-based effects, the ways that law conveys ideas and helps people understand the world and what is possible in it. And, in the background of both of these is law’s infrastructural and interactional power, its ability to shape our interactions and our institutions—how we exist in space and time, and when and how we come together.32 Law is most effective in creating social change when it operates on multiple levels simultaneously, giving rights, conveying cultural commitments, and creating infrastructure.33 In contrast, the history of social movements and law is replete with examples of unmobilized rights, because they stopped being linked to a coherent narrative of a legible common good, or they lacked grounding in lived experiences, or they failed to garner sufficient institutional buy-in.34

In debates about independent contractor bargaining, it is often assumed that the primary impediment is law’s direct, material effects, centering the question: is bargaining by independent contractors legal? Less explored is whether independent contracting provides the interactional infrastructure or conveys the cultural meanings needed to effectuate formal legal rights. In the same way, the fact that organizing rights have been connected to the institution of employment is sometimes treated as a historical accident, a random artifact of a particular course of economic development. But as I have argued elsewhere, employment has more institutional value than leftists sometimes give it credit for. This is because employment, at its best, is relational rather than transactional, and the standard employment relationship as it evolved during the twentieth century involved ongoing social interaction, material interdependence, and shared identity (along with domination and inequality, of course).35 We know that unionization was never just a matter of clear-eyed economism; it was about deep relationships, shared space, and a sense of belonging.36 Employment was therefore a particularly apt social location for effectuating collective rights.

In sharp contrast, independent contracting as it is currently structured is not a natural location for collective action. Gig worker bargaining laws allocate rights to workers unmoored from traditional modes of economic organization, from shared spaces or shared experiences. More than that, gig companies have intentionally designed gig work to be isolating and individualizing, to undermine communal experience and co-production.37 None of this is to say that gig work can never bring people together in space or time or be a repository of shared cultural meaning. Studies of gig worker organizing prove repeatedly that solidaristic independent contracting is possible. But is it possible at scale?

Perhaps ironically, then, there is an argument that the locality doing the most to facilitate gig worker organizing is New York City, even as it has never explicitly done so. Instead, New York City’s public rights approach leverages local power to bring workers together in space and time, to offer real benefits, and to cultivate a shared gig worker identity and sense of communal pride. With each of these choices, New York City builds the kind of material and cultural infrastructure needed for solidarity and making rights real.

According to popular media, radical technological change—automation and artificial intelligence, above all—is the issue of our time. But the hopes and fears engendered by this radical inflection point in economic organization, while important, are not really about technology. The issue of our time, and perhaps in any time, is social solidarity: who will be looking out for each other as a tiny segment of the world’s population upends all existing rules for allocating wealth, power, productivity, and belonging, while spinning narratives about why this new world order is fair and just, and everything and everybody is fine.

The labor struggle has always been a microcosm of a bigger human struggle—to recognize shared fate across differences and to act in concert when there are so many compelling reasons not to. The history of labor law is instructive for how to bring the rule of law to the ever-defiant gig economy; it is also instructive for how to survive amid rapid social change and increased alienation. Law constrains and supports, but it does not create change on its own. Legal rights need stories, institutional supports, and material incentives to be made real. While it is possible to allocate rights, it is not possible to allocate solidarity. Solidarity must be built.