Last week, Harvard Civil Rights-Civil Liberties Law Review hosted a conversation with Shannon Liss-Riordan about the legality of Uber classifying drivers as independent contractors instead of as employees. Liss-Riordan is an attorney at Lichten & Liss-Riordan, P.C., a plaintiffs’-side employment and union-side law firm. She is currently representing Uber drivers in a lawsuit against Uber in California.
With companies like Uber and Airbnb on the rise, the so-called “shared economy” has been a hot topic in employment law. It has caused debate over what makes someone an “employee” and whether the traditional model for differentiating employees and independent contractors is well suited for the modern economy. Harvard Law Professor Benjamin Sachs, who moderated the conversation, has written extensively on the topic, and dedicates a substantial portion of his Employment Law class to this discussion.
Liss-Riordan seemed less persuaded that the “shared-economy” creates new problems. While recognizing that Uber and similar companies have created something new in how they use technology to provide services for consumers, their attempt to classify workers as independent contractors is anything but new. She noted that “companies in a whole lot of industries for many years” have tried to classify workers as independent contractors, pointing to cleaning companies, trucking companies, call centers, and adult entertainment industry as a few examples. By classifying workers and independent contractors, employers can “save massively on labor costs” by avoiding laws society has deemed necessary, such as minimum wage, overtime compensation, unemployment, and workers compensation. This, Liss-Riordan argues, comes at the expense of workers and taxpayers.
Liss-Riordan does think there is a place for independent contractors, but that it has been “fiercely misused and abused” by employers. She was also skeptical about creating a third category of workers called “dependent contractors.” Many people have called for this third category as a way to deal with the modern economy, which, proponents argue, includes many workers that do not fit neatly into our traditional notions of either an employee or independent contractor. It would give workers more protection than independent contractors, but less than an employee. Liss-Riordan believes this would be an easy way out for “companies not to provide all the protections they have had in the past,” but admitted that it might be a second best option and better than the current situation. Implicit in her argument is her belief that Uber drivers actually do fit into the category of “employee” easier than it has been made to seem. Professor Sachs pushed back on this assumption earlier in the conversation, and neither Sachs nor Liss-Riordan were able to give an easy test to distinguish someone who is “really” an independent contractor from someone who is “really” an employee.
Liss-Riordan also gave advice to Harvard Law students interested in public interest. She encouraged students to follow their heart rather than doing what everyone else does. When asked about whether people should stop patronizing Uber, she recognized the limitations of promoting change through consumer boycott, and suggested people increase awareness about the issues and tip their drivers.