Recent technological developments related to the extraction and processing of data have given ris... more Recent technological developments related to the extraction and processing of data have given rise to widespread concerns about a reduction of privacy in the workplace. For a growing number of low-income and subordinated racial minority workforces in the United States, however, on-the-job data collection and algorithmic decision-making systems are having a much more profound yet overlooked impact: these technologies are fundamentally altering the experience of labor and undermining the possibility of economic stability and mobility through work. Drawing on a multi-year, first-of-its-kind ethnographic study of organizing on-demand workers, this Article examines the historical rupture in wage calculation, coordination, and distribution arising from the logic of informational capitalism: the use of granular data to produce unpredictable, variable, and personalized hourly pay. Rooted in worker on-the-job experiences, I construct a novel framework to understand the ascent of digitalized variable pay practices, or the transferal of price discrimination from the consumer to the labor context, what I identify as algorithmic wage discrimination.
Across firms, the opaque practices that constitute algorithmic wage discrimination raise central questions about the changing nature of work and its regulation under informational capitalism. Most centrally, what makes payment for labor in platform work fair? How does algorithmic wage discrimination change and affect the experience of work? And, considering these questions, how should the law intervene in this moment of rupture?
To preface an assessment, Part I examines the rise of algorithmic wage discrimination and its historic legalization in California and Washington state as crucial occasions to understand how data from labor and algorithmic decision-making systems are changing wage practices in service and logistics sectors. The section also considers the extent to which these new lawscomport with legal and cultural expectations about moral economies of work arising from and embedded in longstanding wage equalization statutes— namely, minimum wage and anti-discrimination laws. Part II uses findings and analysis from ethnographic research to assess how data from labor is used to produce algorithmic wage discrimination in ride-hail work and how workers subjectively experience and respond to the practice. I find that workers describe the variable payment structures as forms of gambling and trickery, and that these experiences, in turn, produce profoundly unsettling moral expectations about work and remuneration. Part III assesses both how workers’ groups have leveraged existing data privacy and business association laws to contest algorithmic wage discrimination and the limitations of these approaches. The Article concludes by proposing a non- waivable legal restriction on its practice, which will in turn also restrict harmful data extraction and deter firm fissuring practices.
The legal identity of on-demand platform workers has become a central site of conflict between la... more 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 employee benefits and protections, including minimum wage and overtime rights. Platform 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 constricts 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 Proposition 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 justified the elimination of pay for all time spent laboring and other worker protections 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, including 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 situate 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 workers 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 possible by and reproduce racial subjugation. As the platform companies attempt to spread their Prop 22 wage model in other locales, lawmakers and labor representatives shaping or re-defining minimum employment standards must consider the racialized consequences of this formative reality.
As the COVID-19 pandemic ravaged human bodies and economies across the world, millions of app-dep... more As the COVID-19 pandemic ravaged human bodies and economies across the world, millions of app-deployed drivers in the United States—primarily immigrants and subordinated racial minorities—faced a dangerous and perplexing paradox created by law. Simultaneously treated as independent contractors, excluded from economic security, and anointed as “essential workers,” these workers were both celebrated and disproportionately exposed to poverty, disease, and death. This essay makes sense of the legal and lived condition of being essentially dispossessed during this moment. The author argues that this cruel contradiction became possible through a mystification generated by the fragmented nature of work law. Together with obscuring narratives of techno-modernism, seven years of arbitrary legal outcomes made the central legal question (are they employees or independent contractors?) appear unresolvable. Activist-drivers confronted their relegation to being essentially dispossessed by using t...
As on-demand labor platforms proliferate the independent contractor business model, plaintiffs’ a... more As on-demand labor platforms proliferate the independent contractor business model, plaintiffs’ attorneys in the United States have filed dozens of misclassification lawsuits to secure rights and protections for workers. The conventional wisdom is that if these lawsuits are won, then they will reverse the growth of insecure work. This Article challenges this widely-held assumption. Using empirical research, I examine the trajectories and legacies of three celebrated misclassification lawsuits from earlier moments of transportation “gig work” in California: Tracy v. Yellow Cab Cooperative, Friendly Cab v. NLRB, and Alexander v. FedEx. Against many odds, plaintiff workers secured judicial recognition of employee status in each of these cases. The untold, post-litigation stories, however, were surprisingly grim: workers’ economic lives were no more secure — and in some cases more precarious — then before the lawsuits. While I maintain that such litigation plays an important deterrence ...
TransportRN: Transportation & Society (Topic), 2020
In 2020, almost a decade after the advent of Uber and Lyft, the ride-hailing industry is facing a... more In 2020, almost a decade after the advent of Uber and Lyft, the ride-hailing industry is facing a wave of militant self-organizing and claims to employment status by drivers. So far, the most significant mobilization has been the fight over AB5, a California assembly bill that was signed into law in September 2019, and which makes it much clearer that drivers should be treated as employees of Uber and Lyft. So far, the most significant mobilization has been the fight over AB5, a California assembly bill that was signed into law in September 2019, and which makes it much clearer that drivers should be treated as employees of Uber and Lyft. We are at a critical juncture in the history of labor and urban transportation. <br><br>In order to sort through the arguments surrounding AB5 and grasp the significance of this moment, this essay does something that the discourse around ride-hailing has failed to do: situate the industry historically, tracing both the continuities and ...
This Article examines both the creation of secure work and its ongoing demise through a critical ... more This Article examines both the creation of secure work and its ongoing demise through a critical historical and contemporary case study: over a century of chauffeur work in San Francisco, California. Employing a combination of historical archives and sociological research, I show how chauffeur driving became a site of secure work for much of the twentieth century and how this security unraveled over the course of many years. Since their entree on the streets in 1909, chauffeur corporations — from the Taxicab Company to Uber — underwent formative re-organizations to shift the liabilities and responsibilities of business onto workers. Counterintuitively, these changes in corporate form were met with decreased regulation and a contracted business-labor bargain. I contend that the transformation of the corporate form, the shrinking bargain, and the rejoinders of the state triangulated to produce worker risk and weaken the relationship between work and security.
"Hunkered down in our homes for weeks on end, we long to be free. We nostalgically imagine o... more "Hunkered down in our homes for weeks on end, we long to be free. We nostalgically imagine our lives before the pandemic – recalling what it was like to live in a social world: to dine with friends at a neighborhood restaurant, to visit our elderly parents. Those of us lucky enough – so far – to be personally untouched by death and suffering are inevitably wondering: when can we stop living in fear? What can we do to end this physical isolation? ..."
Traducao para o portugues de Rodrigo de Lacerda Carelli do texto “The Time Politics of Home-Based... more Traducao para o portugues de Rodrigo de Lacerda Carelli do texto “The Time Politics of Home-Based Digital Piecework”, de autoria de Veena B. Dubal, apresentado inicialmente ao Center for Ethics Journal: Perspectives on Ethics , no simposio “The Future of Work in the Age of Automation and AI” e com versao original disponivel em: https://c4ejournal.net/2020/07/04/v-b-dubal-the-time-politics-of-home-based-digital-piecework-2020-c4ej-xxx/ RESUMO: As mudancas na tecnologia digital transformaram radicalmente os processos de trabalho do seculo passado mediante a reordenacao dos espacos fisicos e cognitivos. Mas aspectos centrais da organizacao do Tecnocapital no seculo XXI emprestam e intensificam praticas de producao do seculo XX ja abolidas. Os industriais da automacao, por exemplo, redescobriram a flexibilidade e a velocidade de producao e a mais-valia em um resquicio da fabricacao de pecas de vestuario: o trabalho por peca. Como os fabricantes estadunidenses do inicio do seculo XX ...
Police reform over the past thirty years has been guided by the philosophy of “community policing... more Police reform over the past thirty years has been guided by the philosophy of “community policing,” or the theory that police departments overcome poor community relations by engaging in initiatives that build mutual trust. The advent of the War on Terror brought about the intermingling of federal policing initiatives with local law enforcement. The clashing goals of federal and local police entities undermine local police goals and reformation initiatives based on “community policing.” Using San Francisco as a case study, I argue that overbroad surveillance and information gathering by local police fundamentally undermines trusting relationships between police and the community. I also maintain that police legitimacy depends in part on procedural fairness. Therefore, to the extent the police engage in surveillance practices without clear standards, oversight, and accountability, they are perceived as being less legitimate in the eyes of the community. This, in turn, undermines the ...
Testimony given before the California Assembly Committee on Employment and Labor on the Californi... more Testimony given before the California Assembly Committee on Employment and Labor on the California Supreme Court's Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) decision, the ABC Test, and their implications for the gig economy and worker classification.
Recent technological developments related to the extraction and processing of data have given ris... more Recent technological developments related to the extraction and processing of data have given rise to widespread concerns about a reduction of privacy in the workplace. For a growing number of low-income and subordinated racial minority workforces in the United States, however, on-the-job data collection and algorithmic decision-making systems are having a much more profound yet overlooked impact: these technologies are fundamentally altering the experience of labor and undermining the possibility of economic stability and mobility through work. Drawing on a multi-year, first-of-its-kind ethnographic study of organizing on-demand workers, this Article examines the historical rupture in wage calculation, coordination, and distribution arising from the logic of informational capitalism: the use of granular data to produce unpredictable, variable, and personalized hourly pay. Rooted in worker on-the-job experiences, I construct a novel framework to understand the ascent of digitalized variable pay practices, or the transferal of price discrimination from the consumer to the labor context, what I identify as algorithmic wage discrimination.
Across firms, the opaque practices that constitute algorithmic wage discrimination raise central questions about the changing nature of work and its regulation under informational capitalism. Most centrally, what makes payment for labor in platform work fair? How does algorithmic wage discrimination change and affect the experience of work? And, considering these questions, how should the law intervene in this moment of rupture?
To preface an assessment, Part I examines the rise of algorithmic wage discrimination and its historic legalization in California and Washington state as crucial occasions to understand how data from labor and algorithmic decision-making systems are changing wage practices in service and logistics sectors. The section also considers the extent to which these new lawscomport with legal and cultural expectations about moral economies of work arising from and embedded in longstanding wage equalization statutes— namely, minimum wage and anti-discrimination laws. Part II uses findings and analysis from ethnographic research to assess how data from labor is used to produce algorithmic wage discrimination in ride-hail work and how workers subjectively experience and respond to the practice. I find that workers describe the variable payment structures as forms of gambling and trickery, and that these experiences, in turn, produce profoundly unsettling moral expectations about work and remuneration. Part III assesses both how workers’ groups have leveraged existing data privacy and business association laws to contest algorithmic wage discrimination and the limitations of these approaches. The Article concludes by proposing a non- waivable legal restriction on its practice, which will in turn also restrict harmful data extraction and deter firm fissuring practices.
The legal identity of on-demand platform workers has become a central site of conflict between la... more 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 employee benefits and protections, including minimum wage and overtime rights. Platform 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 constricts 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 Proposition 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 justified the elimination of pay for all time spent laboring and other worker protections 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, including 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 situate 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 workers 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 possible by and reproduce racial subjugation. As the platform companies attempt to spread their Prop 22 wage model in other locales, lawmakers and labor representatives shaping or re-defining minimum employment standards must consider the racialized consequences of this formative reality.
As the COVID-19 pandemic ravaged human bodies and economies across the world, millions of app-dep... more As the COVID-19 pandemic ravaged human bodies and economies across the world, millions of app-deployed drivers in the United States—primarily immigrants and subordinated racial minorities—faced a dangerous and perplexing paradox created by law. Simultaneously treated as independent contractors, excluded from economic security, and anointed as “essential workers,” these workers were both celebrated and disproportionately exposed to poverty, disease, and death. This essay makes sense of the legal and lived condition of being essentially dispossessed during this moment. The author argues that this cruel contradiction became possible through a mystification generated by the fragmented nature of work law. Together with obscuring narratives of techno-modernism, seven years of arbitrary legal outcomes made the central legal question (are they employees or independent contractors?) appear unresolvable. Activist-drivers confronted their relegation to being essentially dispossessed by using t...
As on-demand labor platforms proliferate the independent contractor business model, plaintiffs’ a... more As on-demand labor platforms proliferate the independent contractor business model, plaintiffs’ attorneys in the United States have filed dozens of misclassification lawsuits to secure rights and protections for workers. The conventional wisdom is that if these lawsuits are won, then they will reverse the growth of insecure work. This Article challenges this widely-held assumption. Using empirical research, I examine the trajectories and legacies of three celebrated misclassification lawsuits from earlier moments of transportation “gig work” in California: Tracy v. Yellow Cab Cooperative, Friendly Cab v. NLRB, and Alexander v. FedEx. Against many odds, plaintiff workers secured judicial recognition of employee status in each of these cases. The untold, post-litigation stories, however, were surprisingly grim: workers’ economic lives were no more secure — and in some cases more precarious — then before the lawsuits. While I maintain that such litigation plays an important deterrence ...
TransportRN: Transportation & Society (Topic), 2020
In 2020, almost a decade after the advent of Uber and Lyft, the ride-hailing industry is facing a... more In 2020, almost a decade after the advent of Uber and Lyft, the ride-hailing industry is facing a wave of militant self-organizing and claims to employment status by drivers. So far, the most significant mobilization has been the fight over AB5, a California assembly bill that was signed into law in September 2019, and which makes it much clearer that drivers should be treated as employees of Uber and Lyft. So far, the most significant mobilization has been the fight over AB5, a California assembly bill that was signed into law in September 2019, and which makes it much clearer that drivers should be treated as employees of Uber and Lyft. We are at a critical juncture in the history of labor and urban transportation. <br><br>In order to sort through the arguments surrounding AB5 and grasp the significance of this moment, this essay does something that the discourse around ride-hailing has failed to do: situate the industry historically, tracing both the continuities and ...
This Article examines both the creation of secure work and its ongoing demise through a critical ... more This Article examines both the creation of secure work and its ongoing demise through a critical historical and contemporary case study: over a century of chauffeur work in San Francisco, California. Employing a combination of historical archives and sociological research, I show how chauffeur driving became a site of secure work for much of the twentieth century and how this security unraveled over the course of many years. Since their entree on the streets in 1909, chauffeur corporations — from the Taxicab Company to Uber — underwent formative re-organizations to shift the liabilities and responsibilities of business onto workers. Counterintuitively, these changes in corporate form were met with decreased regulation and a contracted business-labor bargain. I contend that the transformation of the corporate form, the shrinking bargain, and the rejoinders of the state triangulated to produce worker risk and weaken the relationship between work and security.
"Hunkered down in our homes for weeks on end, we long to be free. We nostalgically imagine o... more "Hunkered down in our homes for weeks on end, we long to be free. We nostalgically imagine our lives before the pandemic – recalling what it was like to live in a social world: to dine with friends at a neighborhood restaurant, to visit our elderly parents. Those of us lucky enough – so far – to be personally untouched by death and suffering are inevitably wondering: when can we stop living in fear? What can we do to end this physical isolation? ..."
Traducao para o portugues de Rodrigo de Lacerda Carelli do texto “The Time Politics of Home-Based... more Traducao para o portugues de Rodrigo de Lacerda Carelli do texto “The Time Politics of Home-Based Digital Piecework”, de autoria de Veena B. Dubal, apresentado inicialmente ao Center for Ethics Journal: Perspectives on Ethics , no simposio “The Future of Work in the Age of Automation and AI” e com versao original disponivel em: https://c4ejournal.net/2020/07/04/v-b-dubal-the-time-politics-of-home-based-digital-piecework-2020-c4ej-xxx/ RESUMO: As mudancas na tecnologia digital transformaram radicalmente os processos de trabalho do seculo passado mediante a reordenacao dos espacos fisicos e cognitivos. Mas aspectos centrais da organizacao do Tecnocapital no seculo XXI emprestam e intensificam praticas de producao do seculo XX ja abolidas. Os industriais da automacao, por exemplo, redescobriram a flexibilidade e a velocidade de producao e a mais-valia em um resquicio da fabricacao de pecas de vestuario: o trabalho por peca. Como os fabricantes estadunidenses do inicio do seculo XX ...
Police reform over the past thirty years has been guided by the philosophy of “community policing... more Police reform over the past thirty years has been guided by the philosophy of “community policing,” or the theory that police departments overcome poor community relations by engaging in initiatives that build mutual trust. The advent of the War on Terror brought about the intermingling of federal policing initiatives with local law enforcement. The clashing goals of federal and local police entities undermine local police goals and reformation initiatives based on “community policing.” Using San Francisco as a case study, I argue that overbroad surveillance and information gathering by local police fundamentally undermines trusting relationships between police and the community. I also maintain that police legitimacy depends in part on procedural fairness. Therefore, to the extent the police engage in surveillance practices without clear standards, oversight, and accountability, they are perceived as being less legitimate in the eyes of the community. This, in turn, undermines the ...
Testimony given before the California Assembly Committee on Employment and Labor on the Californi... more Testimony given before the California Assembly Committee on Employment and Labor on the California Supreme Court's Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) decision, the ABC Test, and their implications for the gig economy and worker classification.
The rise of labor platforms is a cause and consequence of an ongoing change in the nature of work... more The rise of labor platforms is a cause and consequence of an ongoing change in the nature of work, away from a standard employment model and toward a model where workers split time across multiple companies, without the rights and benefits of employment. The case of Uber in the U.S. brings these changes into stark relief. Given that it exercises more control over workers than most other labor platforms, it provides a most likely case for regulation. Nevertheless, regulators in legislative and judicial arenas have thus far done little to regulate labor on ride-hailing apps. We explore this surprising failure to regulate, arguing that two factors prove important: the problem of classifying a new type of firm and the relative distribution of power between labor and capital. The weakness of the former emerges from collective action problems and has given rise to a form of skewed surrogate representation. We explore this argument through an analysis of regulatory attempts, based on an extensive review of newspapers, legal cases, original and existing surveys, and interview evidence.
The legal identity of on-demand platform workers has become a
central site of conflict between la... more 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 employee benefits and protections, including minimum wage and overtime rights. Platform 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 constricts 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 Proposition 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 justified the legal elimination of pay for all time spent laboring (and other worker protections) 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, including 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 workers 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 possible by and reproduce racial subjugation. As the platform companies attempt to spread their Prop 22 wage model in other locales, lawmakers and labor representatives shaping or re-defining minimum employment standards must consider the racialized consequences of this formative reality.
Since 2012, the platform economy has received much academic, popular,
and regulatory attention, r... more Since 2012, the platform economy has received much academic, popular, and regulatory attention, reflecting its extraordinary rate of growth. This paper provides a conceptual and theoretical overview of rapidly growing labor platforms, focusing on how they represent both continuity and change in the world of work and its regulation. We first lay out the logic of different types of labor platforms and situate them within the decline of labor protections and the rise of intermediated employment relations since the 1970s. We then focus on one type of labor platform—the ondemand platform—and analyze the new questions and problems for workers and the political problem of labor regulation. To examine the politics of regulating labor on these platforms, we turn to Uber, which is the easiest case for labor regulation due to its high degree of control over work conditions. Because Uber drivers are atomized and ineffective at organizing collectively, their issues are most often represented by surrogate actors—including plaintiffs’ attorneys, alt labor groups, unions, and even Uber itself—whose own interests shape the nature of their advocacy for drivers. The result of this type of politics, dominated by concentrated interests and surrogate actors, has been a permissive approach by regulators in both legislative and judicial venues. If labor regulation has not occurred in this “easy” case, it is unlikely to occur for gig work on other labor platforms.
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Papers by Veena Dubal
Across firms, the opaque practices that constitute algorithmic wage discrimination raise central questions about the changing nature of work and its regulation under informational capitalism. Most centrally, what makes payment for labor in platform work fair? How does algorithmic wage discrimination change and affect the experience of work? And, considering these questions, how should the law intervene in this moment of rupture?
To preface an assessment, Part I examines the rise of algorithmic wage discrimination and its historic legalization in California and Washington state as crucial occasions to understand how data from labor and algorithmic decision-making systems are changing wage practices in service and logistics sectors. The section also considers the extent to which these new lawscomport with legal and cultural expectations about moral economies of work arising from and embedded in longstanding wage equalization statutes— namely, minimum wage and anti-discrimination laws. Part II uses findings and analysis from ethnographic research to assess how data from labor is used to produce algorithmic wage discrimination in ride-hail work and how workers subjectively experience and respond to the practice. I find that workers describe the variable payment structures as forms of gambling and trickery, and that these experiences, in turn, produce profoundly unsettling moral expectations about work and remuneration. Part III assesses both how workers’ groups have leveraged existing data privacy and business association laws to contest algorithmic wage discrimination and the limitations of these approaches. The Article concludes by proposing a non- waivable legal restriction on its practice, which will in turn also restrict harmful data extraction and deter firm fissuring practices.
Across firms, the opaque practices that constitute algorithmic wage discrimination raise central questions about the changing nature of work and its regulation under informational capitalism. Most centrally, what makes payment for labor in platform work fair? How does algorithmic wage discrimination change and affect the experience of work? And, considering these questions, how should the law intervene in this moment of rupture?
To preface an assessment, Part I examines the rise of algorithmic wage discrimination and its historic legalization in California and Washington state as crucial occasions to understand how data from labor and algorithmic decision-making systems are changing wage practices in service and logistics sectors. The section also considers the extent to which these new lawscomport with legal and cultural expectations about moral economies of work arising from and embedded in longstanding wage equalization statutes— namely, minimum wage and anti-discrimination laws. Part II uses findings and analysis from ethnographic research to assess how data from labor is used to produce algorithmic wage discrimination in ride-hail work and how workers subjectively experience and respond to the practice. I find that workers describe the variable payment structures as forms of gambling and trickery, and that these experiences, in turn, produce profoundly unsettling moral expectations about work and remuneration. Part III assesses both how workers’ groups have leveraged existing data privacy and business association laws to contest algorithmic wage discrimination and the limitations of these approaches. The Article concludes by proposing a non- waivable legal restriction on its practice, which will in turn also restrict harmful data extraction and deter firm fissuring practices.
central site of conflict between labor and industry. Amidst growing
economic inequality, labor representatives and workers have demanded that
platform workers be afforded employee benefits and protections, including
minimum wage and overtime rights. Platform 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
constricts 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 Proposition 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 justified the
legal elimination of pay for all time spent laboring (and other worker
protections) 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, including 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
workers 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 possible by and reproduce
racial subjugation. As the platform companies attempt to spread their Prop
22 wage model in other locales, lawmakers and labor representatives
shaping or re-defining minimum employment standards must consider the
racialized consequences of this formative reality.
and regulatory attention, reflecting its extraordinary rate of growth. This
paper provides a conceptual and theoretical overview of rapidly growing
labor platforms, focusing on how they represent both continuity and
change in the world of work and its regulation. We first lay out the logic of
different types of labor platforms and situate them within the decline of
labor protections and the rise of intermediated employment relations
since the 1970s. We then focus on one type of labor platform—the ondemand
platform—and analyze the new questions and problems for
workers and the political problem of labor regulation. To examine the
politics of regulating labor on these platforms, we turn to Uber, which is
the easiest case for labor regulation due to its high degree of control over
work conditions. Because Uber drivers are atomized and ineffective at
organizing collectively, their issues are most often represented by
surrogate actors—including plaintiffs’ attorneys, alt labor groups, unions,
and even Uber itself—whose own interests shape the nature of their
advocacy for drivers. The result of this type of politics, dominated by
concentrated interests and surrogate actors, has been a permissive
approach by regulators in both legislative and judicial venues. If labor
regulation has not occurred in this “easy” case, it is unlikely to occur for
gig work on other labor platforms.