This chapter begins by explaining the pleading requirements of the Federal Rules of Civil Procedure. Next, this chapter explores how Supreme Court caselaw has shaped those rules, emphasizing the Court’s recent decisions in Twombly and Iqbal. Then, this chapter outlines the results of numerous research studies that examine the current state of employment discrimination in our society. Building on this research, this book proposes a unified analytical framework for pleading intent in employment discrimination claims brought under Title VII. The chapter then explains how the proposed pleading model comports with the federal rules, as interpreted by Twombly and Iqbal. The chapter further explores the best approach to pleading claims arising in the technology-sector context.

This chapter argues that the classification of workers as independent contractors or employees should be shaped by an overarching question: How much flexibility do individuals have in determining the time, place, price, manner, and frequency of their work? Those who have more control of these variables are more independent than those who must conform to a business owner’s schedule. This approach provides an objective basis for resolving classification disputes, particularly those that arise in the context of the technology-based economy. By minimizing legal uncertainty, a focus on worker flexibility would ensure both that workers receive appropriate protections under existing law and that companies are able to innovate without fear of unknown liabilities.

This chapter sets forth the guidelines for systemic litigation. This chapter examines the Supreme Court’s decision Wal-Mart Stores, Inc. v. Dukes, explaining how the Court has redefined the standard for commonality. Next, this chapter examines the Fair Labor Standards Act – which creates the federal requirements for wage/hour claims. This chapter then examines the federal district court decision in O’Connor v. Uber, which permitted the aggregation of a class on the worker classification issue. This chapter further examines the potential harm of the O’Connor analysis and the need for more clarity in the technology sector. This chapter proposes a framework for analyzing whether class action claims should be permitted to proceed in technology-based cases. Finally, this chapter explores how Federal Rule of Civil Procedure 23(c)(4) – issue class certification – can impact the analysis of class action cases.

This chapter argues that the partial automation of managerial authority should not matter when determining whether platform workers are—or should be treated as—employees or independent contractors under the law. It offers a close reading of an end-user license agreement (EULA) between the on-demand transportation company Uber and its drivers. In particular, the chapter examines the relationship between the EULA and Uber’s use of algorithmic management to design, direct, monitor, evaluate, and compensate drivers’ work. By scrutinizing this relationship through a theory of the “self” implicit in contract law, the chapter shows that the EULA grants Uber rights to direct drivers’ work and determine the principal terms of the agreement as it goes along. This unilateral discretion is difficult to reconcile with what the law expects of an enforceable contract. Rather, it resembles the open-ended authority that the law permits an employer over its employees. Uber exercises its extra-contractual discretion through the App. Algorithmic management enables Uber continually to recalibrate its putative bargain with drivers to the company’s advantage. One lesson of this analysis is that decision makers tasked with evaluating the employment status of platform workers should take more seriously the contractual component of being an “independent contractor.”

This chapter offers an overview of the legal and regulatory landscape impacting gig work in America. It covers recent developments in case law and legislation at city, state, and federal levels, as well as regulatory activity involving administrative actors like the National Labor Relations Board. The legal landscape described here provides the background for the chapters that follow. It argues that there are in fact far fewer laws regulating gig work than one might expect because of the newness of this type of labor exchange, preemption rules that make it difficult for local (and sometimes state) authorities to regulate work, and because non-work issues – consumer protection, taxation, urban infrastructure – have tended to occupy regulators’ attention.

As the United States tax system continues to grapple with how to tax workers in the gig economy, it confronts a number of questions about the nature and composition of the sector as well as the tax issues confronted by its participants. Many of these questions have proven difficult to answer due to a lack of adequate information. But the answers are important and will shape how tax and other areas of law (such as employment law, labor law, and antitrust) respond to the gig economy. Thus, the question of how to obtain the data and information necessary to formulate sound policies for gig work is vital. This chapter discusses the limitations of quantitative empirical research on the gig economy and argues that incorporating more qualitative approaches will help generate a more comprehensive understanding of the tax policy issues involved. Adoption of a diverse set of research approaches is crucial because the administrative tax return and labor survey data are incomplete and are shaped by prior decisions of gig economy firms and participants. Many questions remain that such quantitative data, by its very nature, cannot answer. This chapter first identifies the key tax issues at stake in the gig economy, including tax administration, worker classification, and tax impacts on workforce decisions. It then discusses the key ways in which quantitative approaches do not fully capture the tax issues at stake. Finally, it details how qualitative research methods such as interviews and case studies can flesh out gaps in the quantitative data, can help interpret quantitative data, and can help answer questions that extend beyond the scope of quantitative data, yielding a richer account of gig economy tax issues than that provided by quantitative tax administrative and labor survey data alone.

The changing nature of work offers both opportunities and challenges for organizations. Among those challenges are issues related to maintaining compliance with labor and employment legal obligations. As work, and the workforce, changes, traditional strategies for maintaining compliance may no longer meet organizational needs and legal requirements. In this chapter, we highlight several areas in which the changing nature of work, the workforce, and the legal landscape may pose legal challenges for organizations going forward. We focus on four primary areas: (1) the classification of workers as “employees” versus “independent contractors,” (2) the occurrence of off-the-clock work, (3) pay equity, and (4) applications of big data for solving human capital problems. The chapter provides a brief background of the relevant legal standards, after which we address each of the four topic areas.