Publication Date

2022

Abstract

The legal identity of on-demand platform workers has become a central site of conflict between labor and industry. Amidst growing economic inequality, labor representatives and workers have demanded that platform workers be afforded em­ ployee benefits and protections, including minimum wage and overtime rights. Plat­ form industrialists, meanwhile, have proffered a new regulatory category of worker­ neither employee nor independent contractor-that limits the protections available to the workforce, legalizes unpredictable, digitally-personalized piece-pay, and con­ stricts a worker's right to negotiate different terms. To date, legal and socio-legal scholars have primarily analyzed this third category of worker, codified by Proposi­ tion 22 in the state of California, in race-neutral terms. In this Article, I make visible the racial politics of this tiered system of worker protection. Using historical, legal, and ethnographic methodologies, I argue that the wage system created by Prop 22 and the third category of worker has been both rationalized (by industry) and contested (by labor) through a recognition of systemic racial inequalities. Adopting the language of racial justice, platform employers justi­ fied the legal elimination of pay for all time spent laboring (and other worker protec­ tions) as a means of providing economic opportunities to struggling immigrants and racial minorities. Workers, however, argued that the corporate recognition of racial inequality strategically neutralized political support for employment protections, in­ cluding the minimum wage, thereby remaking racialized economic hierarchies and undermining labor solidarity. Drawing on historical comparisons made by platform workers campaigning against Prop 22, Part I situates the third category of worker within a genealogy of industry-sponsored racial wage codes, proposals, and debates during the First and Second New Deals. In Part II, I argue that companies supporting Prop 22, like their early twentieth century counterparts, strategically used race as a resource to eliminate access to employment protections. Finally, in Part III, I analyze how platform work­ ers who collectively fought the passage of Prop 22 rejected the rhetorical liberalism of their employers and examine their actions and visions for a path to racial and economic justice. Building on the workers' analyses and actions, I argue that facially neutral employment and labor rights carve-outs for the gig workforce are made pos­ sible by and reproduce racial subjugation. As the platform companies attempt to spread their Prop 22 wage model in other locales, lawmakers and labor representa­ tives shaping or re-defining minimum employment standards must consider the racialized consequences of this formative reality.

Document Type

Article

Publication Title

Harvard Law and Policy Review

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