The Rights of Workers in the “Gig Economy,” Part 2


Independent Contractors’ Rights

Now that we have a background as to the motivations for classifying a worker as an independent contractor instead of an employee, it feels like independent contractors are at a significant disadvantage. However, there are advantages to being an independent contractor, and it’s not like independent contractors have no rights or legal remedies for conflicts with their employers. Changes are taking place to give independent contractors in the gig economy more power and protections.

It comes as no surprise that one of the hardest-fought areas is the claimed misclassification of employees as independent contractors. Some states are deciding that certain independent contractors are employees. For example, Florida recently declared that some Uber drivers were employees and not independent contractors. This means that the drivers can now pursue overtime and reimbursement for job expenses. There are also lawsuits around the country to decide this very issue.

While not as hotly debated, another area for independent contractor rights is organized labor. Drivers of companies such as Uber, Lyft, and Sidecar have created “App-Based Drivers Associations” in a few states, including California. How successful these initiatives will be has yet to be seen. The effectiveness of a strike when new workers are just a smartphone tap away is diminished.

Finally, there are common law contract and business tort laws that are available to independent contractors (and any worker, for the most part). For instance, an independent contractor may negotiate contractual provisions into the contract with his or her employer. If those terms aren’t honored, the independent contractor can sue for breach of contract. These contractual terms could include benefits for the independent contractor that might normally be provided if the independent contractor were an employee.

There are also other legal causes of action, such as theft of intellectual property and interference with contractual relations, that are available to independent contractors.

The theft of intellectual property is actually what you think it is: stealing someone else’s intellectual property. An example might be a copyright infringement where an independent contractor (such as a freelance writer, artist, or photographer) creates and therefore owns the intellectual property to a given work, but the client/employer improperly takes the work as its own and profits from it.

Interference with contractual relations is also what it sounds like: interfering with someone else’s business relationship. An example that involves an independent contractor could be an employer who hires an independent contractor for a job. During the course of the job, the employer learns that the independent contractor has a contract with another business. Wanting the other business to work directly with the employer instead of through the independent contractor, the employer induces the other business to breach its contract with the independent contractor and to start working with the employer.

Summing It Up

Despite the reduction in worker rights, independent contractors still have the following rights available to them:

  • in some cases, correcting the misclassification as independent contractors instead of employees,
  • the right to organize and form labor associations and unions, and
  • common law contract or business tort remedies, including breach of contract, theft of intellectual property, and interference with contractual relations.