Document Type

Article

Publication Date

2021

Source Publication

St. Louis U. L.J. 65(1) (forthcoming 2021)

Abstract

Digital workers have not had significant success in securing conventional forms of collective workplace representation, particularly statutory collective bargaining. This article examines an established sectoral bargaining statute, the Status of the Artist Act (SOA), as a possible model for collective bargaining legislation that is better suited to regulating digital work than the Wagner Act model (WAM) of labor legislation. Key features of the WAM labor legislation pose significant barriers for digital worker organizing. First, the necessity for applicant unions to demonstrate a threshold level of support among workers requires applicants to accurately estimate the number of workers in the proposed unit. This is difficult given that digital workers tend to be geographically dispersed and isolated. Second, the WAM is oriented towards single-employer, single location, enterprise-level bargaining units. Fragmented organization is ill-suited to the organization of digital work. Recent certification cases involving Uber, Lyft and Foodora illustrate the difficulties of these WAM features for digital worker organizing. The SOA, applicable to self-employed professional artists, shares much of the WAM framework. However, it departs from the WAM in crucial ways, designed to overcome collective bargaining barriers for the arts sector. Key differences include: no requirement for workers to establish employee status; a broader approach to appropriateness relieves against fragmented, small, units characteristic of WAM; demonstration that the applicant is the “most representative” association rather than majority support means certification does not turn on the applicant’s ability to accurately determine the number of workers in the proposed unit; limited challenges to representativeness; and, collective agreements provide a minimum floor, facilitating representation of heterogeneous workers in a unit. Organization of work and workers in the digital work and arts sectors share important similarities including the “gig” nature of the work and the geographic dispersion of workers. This article suggests that the structural similarities between digital and arts work, reflected in the SOA framework, offer guidance for a more effective statutory collective bargaining system for digital workers.

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