1Since the the start of the COVID-19 pandemic, many gig companies continue to have dominance in their respective industries. Companies like Uber, Lyft, Handy, TaskRabbit and DoorDash formed the pre-Pandemic generation of the « gig economy », thorough internet apps that distributed workers classified as « independent contractors » to provide services to their customers. Several of those companies have been hauled into court and before regulatory bodies for failure to afford their workers the legal rights to which all other employees are entitled, such as minimum wage, workers’ compensation, and safety protections.

2In this Article, I examine the of the state of the gig economy in the latter half of 2023, which is marked by the normalizing stage of the pandemic which saw many workers returning to the typical work locations they occupied before the pandemic. Here, I argue that the gig economy of the pandemic has now gone through a transition because of the ubiquity of technology in the workplace. Now, the Platform is where many workers now participate in out of necessity and convenience. I use the term Platform here as a single virtual place for work, just as the term « workplace » is an eponym for the collection of work relationships between individuals in physical space.

3While this Article focuses primarily on the platform economy in the United States and the European Union, the economy in the rest of the world is also changing due to three factors. First, there is a renewed interest among workers in many countries in collective action, strikes, and unionization. Second, there are growing demands on regulators, both from workers and unions, and the regulated themselves, to formalize the gig economy into the Platform economy. Finally, the changing and often ethereal location of the workplace after the COVID-19 Pandemic (« the bPandemic ») has led to an ever-growing number of workers who were not considered part of the gig economy, but who will be part of the institutionalized platform economy. These phenomena are present even while the governments at various levels move to regulate the platform economy, which will affect many more workers in the future.

I - The Shift Brought by the COVID-19 Pandemic

4The gig economy of today is marked by an informality that dates to well before the dawn of the internet or computers. The shape-up line for labor in the early industrial age has been replaced today with day laborer gatherings on street corners in cities such as Las Vegas, Los Angeles, and El Paso, Texas.

5Today, the gig economy is associated with technological platforms and a labor model that eschews the legal model of employment in favor of a regulatory arbitrage that avoids liabilities in wages, taxes and litigation.

II - United States: The Move Toward a New Category of Workers

III - European Union: An Emphasis on Categories and Transparency

10After a period of consultation and negotiation, leaders in the European Parliament reached an agreement that eschewed the five factors in favor of an approach that allowed each EU member state to determine what is fair. This suggests that the platform companies, seeing the experience of many other multi-factor tests, were successful in making sure that the realities of many workers on the ground would not be applied into the factors of the proposed directive, and more frequently than not leading to the workers being found to be employees.

12The Directive assumes that the technology that Platform companies use can be employed to improve the enforcement of labor rights. At the same time, the Directive requires that employers monitor compliance with the Directive with humans, rather than thorough artificial intelligence. With full transparency of data, in theory, the problem of misclassification should be avoided. Because the Directive has yet to take effect in most countries, it is early to determine whether the Directive will have an appreciable impact on the classification of workers.

IV - Three Global Phenomena Going Forward

13The movement toward the EU Directive and changes at the federal and state levels in the United States occur as three phenomena take place throughout the global economy. First, there has been a growing movement toward collective organization and strikes in some unique contexts, such as at Starbucks Coffee and Amazon Warehouse. Then, there have been several industrial actions in the United Kingdom resulting from workers’ concerns over the high cost of living. These activities stem from the frustration of many workers, on platforms and otherwise, who have not been seeing the gains that they had hoped after the general recovery of the U.S. economy.

14Second, in the pandemic, the amount of control that companies have over platform workers increased in myriad ways. Surveillance technology companies have rapidly swooped into the workspace to monitor worker productivity and control work time. Thus, the location of the « workplace » becomes the platform, and that is where more and more workers spend most of their time. Academics are just one of many examples, where online or Zoom teaching has become the norm for countless professors, and virtual conferences and lectures have replaced the traditional in-person meetings. Academic workers, then, are now on the Platform, and are more likely to be working in contingent and remote assignments than they are to have the stability of a regular paycheck and benefits.

Conclusion

16The foregoing is a snapshot of several of the changes that have occurred over decades, but have moved at an even more rapid pace because of the Pandemic. As discussed, these changes are ongoing, but the trend is toward more workers finding themselves on the Platform for some period of their work life. As Proposition 22 and the law in the State of Washington show, states have seen the need for some minimum package of social benefits like minimum wage, collective bargaining or portable benefits for gig workers. The challenge for Platform workers and unions will be to ensure that their rights closely approximate what other employees off the Platform receive, whether or not they are labelled as « employees ».