How Concepcion and Italian Colors Affected Terms of Service Contracts in the Gig Economy

50 Pages Posted: 31 Jul 2017 Last revised: 17 Jan 2018

Elizabeth Chika Tippett

University of Oregon School of Law

Bridget Schaaff

University of Oregon School of Law

Date Written: July 14, 2017

Abstract

This study examines whether companies in the gig economy altered their contract terms following two landmark Supreme Court decisions affirming the enforceability of class action waivers in arbitration agreements: AT&T Mobility, LLC v. Concepcion and American Express v. Italian Colors Restaurant. Many of the companies in the study appear to have been influenced by the decisions.

The study analyzes Terms of Service contracts from 38 gig companies between 2009 and 2016. Prior to 2012, only about one third of companies used arbitration agreements, and few such agreements contained a class action waiver. By 2016, however, nearly two thirds of gig companies included an arbitration agreement, and almost all included a class action waiver. These class action waivers remove the future threat of aggregate liability for claims brought by workers and consumers alike. The addition of such waivers could also explain in part why gig companies have not reclassified their workers, even after experiencing substantial litigation.

Keywords: Arbitration, Class Action, Collective Action, Wage and Hour, FLSA, Class Action Waiver, Sharing Economy, Gig Economy

Suggested Citation

Tippett, Elizabeth Chika and Schaaff, Bridget, How Concepcion and Italian Colors Affected Terms of Service Contracts in the Gig Economy (July 14, 2017). Rutgers Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3009913 or http://dx.doi.org/10.2139/ssrn.3009913

Elizabeth Chika Tippett (Contact Author)

University of Oregon School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States
541-346-8938 (Phone)

Bridget Schaaff

University of Oregon School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States

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