Protecting Platform Workers in the Gig Economy: Look to the FTC

Abstract

Much litigation and scholarly commentary has focused on whether Uber drivers and other platform workers are employees of the platform or independent contracts. This Article contends that in the long run, this debate will be irrelevant to the question of how to protect workers in the platform economy. Many worker-platform relationships are not employment relationships under even the broadest definition of the term. Others may be found to be employment relationships but the platforms will react by changing the terms to service to ensure that their workers ultimately are held to be independent contractors. This Article maintains that rather than analogize platform-worker relationships to employment, a more apt analogy is to the franchisee-franchisor relationship. Platform workers have much in common with franchisees and since 1979 the Federal Trade Commission has required franchisors to make extensive disclosures when offering franchises to prospective franchisees and has prohibited material misrepresentations in the process. The Article urges the FTC to develop a platform disclosure rule, a measure that is within the FTC’s existing authority and which can provide meaningful protection to platform workers without any new legislation.