The Seattle Solution: Collective Bargaining by For-Hire Drivers and Prospects for Pro-Labor Federalism

Well before the 2016 presidential election, worker movements like “Fight for Fifteen” had begun to rack up wins in left-leaning states and cities on issues including the minimum wage and paid sick time. Then the election made necessity out of virtue, with states and cities adopting a key role in resisting policies of the Trump administration. Now, with the Trump National Labor Relations Board and Department of Labor starting to roll back pro-worker gains made during the Obama Administration, this emerging progressive federalism has only become more important for improving working conditions and expanding opportunities for workers’ collective action. This essay focuses on one innovative workers’ rights measure: a Seattle ordinance allowing taxi and for-hire drivers who are classified as independent contractors to unionize and bargain collectively. This law is largely a response to precarious working conditions in the app-based “gig economy,” which depends on an army of workers who are paid by the task and who do not receive protections usually afforded employees. A key idea behind the ordinance – the Seattle solution – is that the most expedient way to improve working conditions for these workers, who are regarded as ineligible for key employment protections yet who are powerless to bargain a better deal on an individual basis, is through increased collective leverage. As Part I of this essay discusses, Seattle’s driver bargaining ordinance is considerably more protective of workers’ collective action than the NLRA. Thus, it is possible that even those drivers who are covered by Seattle’s law who should arguably be classified as employees may actually wind up better off than they would be if they challenged their classification as independent contractors, particularly considering the costs and uncertain outcomes of such challenges. However, it is also possible that the ordinance will be struck down, and Part II canvasses pending legal challenges to the Seattle ordinance, which is now temporarily enjoined by the Ninth Circuit. Finally, Part III discusses legal and political barriers to the Seattle solution, concluding that they are not insurmountable