Labor Law

4 posts

Algorithmic Harms to Workers in the Platform Economy: The Case of Uber

Issues Volume 53, Issue 2

By Zane Muller

Technological change has given rise to the much-discussed “gig” or “platform economy,” but labor law has yet to catch up. Platform firms, most prominently Uber, use machine learning algorithms processing torrents of data to power smartphone apps that promise efficiency, flexibility, and autonomy to users who both deliver and consume services. These tools give firms unprecedented information and power over their services, yet they are little-examined in legal scholarship, and case law has yet to meaningfully address them. The potential for exploitation of workers is immense, however the remedies available to workers who are harmed by algorithm design choices are as yet undeveloped.

This Note analyzes a set of economic harms to workers uniquely enabled by algorithmic work platforms and explores common law torts as a remedy, using Uber and its driver-partners as a case study. Part II places the emerging “platform economy” in the context of existing labor law. Part III analyzes the design and function of machine learning algorithms, highlighting the Uber application. This Part of the Note also examines divergent incentives between Uber and its users alongside available algorithm design choices, identifying potential economic harms to workers that would be extremely difficult for workers to detect. Part IV surveys existing proposals to protect platform workers and offers common law causes of action sounding in tort and contract as recourse for workers harmed by exploitative algorithm design.

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Measuring the Impact of Mergers on Labor Markets

Issues Volume 53, Issue 1

By Aryeh Mellman

While the Department of Justice (DOJ) traditionally reviews mergers solely in terms of their impacts of prices for consumers, the antitrust laws were enacted to deal with broader socio-political problems like industrial concentration as well as prices. A new line of research on labor market concentration suggests an additional area of concern for antitrust law, noting that even as mergers decrease prices, they can increase labor market concentration, keeping wages low for employees of merging companies.

This Note analyzes a merger through the lens of its predicted impact on wages, rather than prices. Part II lays out the evolution of antitrust law and merger review from its early multifaceted socio-political focus to its current narrow economic angle. Part III then questions whether the price-focused consumer welfare standard is as complete as it appears to be. Next, Part IV reviews the literature on labor market concentration and demonstrates how the tools that measure concentration in the product market can easily do the same in the labor market. Part V conducts a retrospective empirical analysis of a past merger, assessing whether it would have passed DOJ muster had the agency considered its effect on wages. Finally, Part VI suggests possible changes to the merger review process in light of the research and case study.

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Giving Voice to the Silenced: The POWER Act as a Legislative Remedy to the Fears Facing Undocumented Employees Exercising Their Workplace Rights

Issues Volume 54, Issue 3

By Elie Peltz

Undocumented workers in the United States number nearly eight million and are key contributors to major industries and regional economies across the country. Yet undocumented workers often hesitate to report labor law violations due to the fear of making themselves known to immigration authorities. In recent years, employers have felt emboldened to ignore the labor rights of undocumented workers amidst a political climate marked by anti-immigrant rhetoric and increased government monitoring of immigrants. Although federal, state, and local law all provide criminal and civil remedies for undocumented workers who have experienced workplace violations, these forms of relief do not protect undocumented workers from their greatest fear — deportation. Consequently, many undocumented workers continue to suffer workplace abuse in silence.

This Note explores two complementary federal government reforms to insulate undocumented workers who report workplace abuse from deportation: 1) expansion of the U nonimmigrant status visa program, and 2) restriction of U.S. Immigration and Customs Enforcement’s ability to deport individuals who have pending actions against employers. This Note then analyzes proposed legislation that fixes the shortcomings of these attempts at reform: The Protect Our Workers from Exploitation and Retaliation Act (POWER Act), most recently introduced in Congress in November of 2019. Finally, given enforcement trends that emerged under the Trump Administration, this Note critically assesses the viability of the POWER Act and considers ways to bolster the legislation’s protections for undocumented workers.

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Beyond Discriminatory Intent: Agriculture, Labor Rights, and the Shortcomings of Equal Protection Doctrine

Issues Volume 55, Issue 2

By Mary Otoo

The National Labor Relations Act provides labor protections for millions of workers. The existing exemption for agricultural workers, however, leaves a crucial category of workers vulnerable because they lack federal protection to form unions and collectively bargain with their employers. Implemented in 1935, the exemption created a severe disparate impact for farm workers, most of whom are Latinx. This lack of labor rights robs agricultural workers of important tools to increase wages and improve working conditions and benefits.

In the past, plaintiffs have attempted to challenge the exemption on equal protection grounds, but these challenges have failed—in large part because there is no direct evidence of Congress’ intent to discriminate against Latinx workers, despite the exemption’s disproportionate harm. This Note presents a theoretical framework for assessing equal protection claims challenging laws that have a prolonged and severe disparate impact, a framework which, unlike current equal protection doctrine, does not require plaintiffs prove discriminatory intent. The intention in creating this new framework is to make it easier for plaintiffs to challenge longstanding laws that continue to have a harmful disparate impact on minorities, even in cases where it is difficult or impossible to prove that Congress harbored discriminatory intent when it passed the law. This Note explains the elements of the theoretical framework and applies it to the NLRA agricultural exemption.

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