Are we all gig workers now? Or soon?

That was the provocative premise of a recent panel at CUNY’s School of Labor and Urban Studies that explored efforts of state and city governments and labor unions to improve the wages and working conditions of workers who are not legally considered “employees.”

Not so long ago, a “gig” was John Coltrane’s three-night stand at the Blue Note.

But we would never have thought of Coltrane and his band as “gig workers.” They were just part of a group of “freelancers” – artists and other cultural workers such as graphic designers, proofreaders, editors, IT consultants, web developers and ghostwriters who were hired to complete a specialized task of short duration.

Most often these workers were hired for their specific expertise or skill. They worked for many different clients, and only rarely would that client directly supervise or control their work process.

They set the price of their own work, chose their own clients, and could spurn any particular job without being punished. They were truly “independent” contractors, in many ways, no different from a small business like a landscaper or a plumber.

The bitter fruits of “misclassification”

Today, though, many of us are gig workers of one sort or another, and our ranks are growing to now include such traditional work occupations as nurses and home healthcare aides who bid for shift work on an app, lawyers and even dishwashers! By one estimate, half-a-million New Yorkers perform gig work, including more than 100,000 rideshare drivers and 60,000 “deliveristas.”

They have nothing in common with those freelancers of the past except that their pay-accounting comes via a 1099 form rather than a W-2. The gig workforce is expanding by 15-20 percent every year, while management-by-algorithm is growing even faster.

Why so fast? It’s not because most of these new gig workers suddenly developed a burning desire for “flexibility” or because they wanted “to be their own boss.”

Of course, there are exceptions, but mostly those slogans are the creation of the app-based work-for-hire companies that have found that “misclassifying” workers as independent contractors lets them lower costs by evading laws regulating employment.

In most of the country, the nursing home that hires an aide via app and calls them a contractor is off the hook to pay them a minimum wage, provide sick leave or disability, workers’ comp, unemployment insurance or even the traditional employer’s share of Social Security and Medicare taxes. And since they are not “employees,” they are excluded from even the current feeble federal laws protecting workers trying to organize a union from being fired – or in their case, “deactivation.”

Like the fabled Walmart workers so poor they quality for food stamps and Medicaid, the gig companies shift what should be the employers’ costs to the public purse.

How to address this problem? California passed a law to reclassify these workers as employees unless – like John Coltrane – they were truly independent, providing a temporary but unique service free from company control.

But Uber, Lyft, Instacart, DoorDash and Grubhub poured hundreds of millions of dollars into a successful effort to overturn that law. That scared off other states from going the same route.

Two paths forward

That left two different paths to protecting those workers. Federal labor law normally pre-empts state or local ones, but since the feds don’t consider these workers “employees,” the way was left open for states to provide their own path toward unionization.

In Massachusetts, unions went to the public with a statewide proposition to enable “sectoral bargaining” for rideshare drivers. Sectoral bargaining means a union bargains with a body that represents a whole industry rather than with individual employers.

For a New York analogy, think of the way that Local 32BJ of the Service Employees International Union, which represents building workers, negotiates its contracts city-wide with the Real Estate Advisory Board rather than bargaining singly with each building owner.

And, in fact, it’s 32BJ that has now gotten the required 25 percent of the 90,000 Massachusetts rideshare drivers to sign union cards – this is known as “card check,” and substitutes for a union recognition election – making it the driver’s certified representative. The union has begun bargaining jointly with Uber and Lyft to try to establish by contract the kind of rights and benefits that most “employees” have by law.

Remarkably, the law contains a provision that if the companies try to negotiate indefinitely – the problem workers face at Starbucks and Amazon – hoping to wear out or exhaust worker efforts, contract terms will be settled by binding arbitration.

That’s a legal right no other private sector workers possess. Similar “sectoral bargaining” laws have also gone into effect in California and Illinois, although they are not nearly as strong.

New York City, on the other hand, has acted to regulate these app-based companies.

Years ago, the City dipped its toe in these waters with various laws protecting fast food workers. Since then, it has mandated a minimum wage guarantee for all rideshare riders that includes waiting time, access to paid family leave, and (for deliveristas too) deactivation protections that give them more protection against being “fired” than most non-unionized workers.

The NYC Department of Consumer and Worker Protection has won huge reimbursements of wage and tip theft. Next on the “to-do” list of the Taxi Workers Alliance is a law limiting Uber’s and Lyft’s share of the cost of a ride.

Which way is better?

In a fascinating exchange beginning at about the 30th minute of the panel (use the link or google “we are all gig workers now video”), Bhairavi Desai of the TWA argued that the sectoral bargaining approach concedes misclassification of workers who are “obviously employees.” She worries that deal-making between the state and the app companies has undercut some elements of bargaining – like New York’s waiting time pay – before it even starts.

The glide-path to arbitration may result in top-down unions that abandon the kind of worker activism and militancy that has helped TWA win rights legislatively.

Gabe Morgan of 32BJ responded that workers in New York City have benefitted from an unusually favorable political and labor environment, unavailable elsewhere. Successful unionization, regardless of how it is achieved, will lead to the kind of formal democratic rights that TWA is not required to follow.

The ability to sit at an actual bargaining table, he contends, will produce worker power and eventually favorable labor legislation of the New York kind.

Is “hardship a reason to make compromises”? Should we fight for half-a-loaf?

I think, ultimately, I side with Morgan. Mass unionization is an important goal. So is the certainty of a first contract.

We have to trust that workers will then fight not just the employer but also to make their unions more democratic, more militant, more bottom-up.