United States: EEOC Focusing On Gig Economy

Published in NH Bar News - 12/20/2016

Many of us remember the cartoon series The Jetsons. In that futuristic animation, we were introduced to George and Jane Jetson, their teenage daughter Judy and elementary-school-age son Elroy from Orbit City. George worked at Spacely Space Sprockets, Inc. for the owner Cosmo Spacely and commuted to and from work in what looked like a flying saucer car with a clear bubble roof. In the episode entitled "The Vacation," George describes his workweek as working "his fingers to the bone" two days a week for an hour a day.

Supposedly, The Jetsons takes place in the latter half of the 21st Century. While I have not seen any aero-cars or adjustable space-like buildings high above the ground, we do have moving sidewalks, robots cleaning floors, and drones delivering pizza to our doorsteps. And the concept of a different type of work structure or relationship is now a reality. Anyone who has used the Uber or Lyft apps has already participated in this emerging business structure.

Known as the "gig" economy, the term refers to the shifting away from the traditional long-term work relationship with a single employer to one of freelance or temporary work on short-term assignments or projects. Workers in this type of business environment have an entrepreneurial and independent spirit. This on-demand work structure brings flexibility and the ability to work on as few or as many projects or assignments as desired.

McKinsey Global Institute, a company that researches the evolving global economy, reported in October 2016 that up to 30 percent of the working-age population in the United States and certain European Union members are independent contractors. McKinsey defines independent work as a "high level of control and autonomy," "payment by task, assignment, or sales," and "short-term duration." More than half of those providing services in this category do this type of work to supplement their primary income, choose this path out of preference rather than necessity, and report high satisfaction in their work lives.

McKinsey statistics further show that while only 15 percent of independent workers have used a digital platform, digital platforms such as "Upwork, Uber, Airbnb, or Etsy have been growing rapidly," according to McKinsey's paper, "Independent Work: Choice, Necessity, and the Gig Economy."

Businesses participating in this gig economy will be the focus of the Equal Employment Opportunity Commission (EEOC). In October 2016, the EEOC unveiled its four-year Strategic Enforcement Plan (SEP). The SEP provides employers insight into the direction of the EEOC in the coming years, allowing companies to ensure their businesses are compliant. There is continued attention on the classification of workers as independent contractors or temporary workers.

Additionally, under the Emerging and Developing Issues, the EEOC expects to clarify the employment relationship and the application of workplace civil rights protections to these 21st Century workplace relationships and structures. The EEOC will focus on the increasing complexity of this gig economy, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy – for example, Uber drivers.

Companies already in this on-demand workplace, however, are currently facing high-profile litigation. Class action litigation involving current and former Uber drivers in Massachusetts and California is being closely watched. In that case, the drivers brought claims alleging that they were improperly classified as independent contractors rather than as employees. The actions cover about 385,000 drivers. After three years of contentious litigation, and on the eve of trial earlier this year, the parties reached a settlement of these two class-action lawsuits. Among other terms, Uber agreed to pay $84 million, plus an additional $16 million if the company went public. Drivers remained classified as independent contractors, and Uber agreed to institute certain processes and procedures internally.

Upon a motion for preliminary approval of the class-action settlement for $100 million, the US District Court for the Northern District of California found the settlement "not fair, adequate and reasonable" and denied approval. Later, in a surprise twist in early September, the US 9th Circuit Court of Appeals in San Francisco reversed an earlier ruling by that judge finding the arbitration agreements signed by the Uber drivers to be unenforceable. The appeals court found that drivers who joined Uber in 2013 and 2014 must go to arbitration rather than the courts to resolve the dispute, affecting some of the drivers in this class-action lawsuit. There is also a separate appeal pending on whether the arbitration agreements are unenforceable in any event, because they violate the National Labor Relations Act to engage in concerted activity.

As the EEOC targets the 21st Century workplace, it is evident that there is a growing demand for this type of independent, on-demand workplace structure today. New digital platforms like Uber are expanding this marketplace for freelance and temporary workers to connect with those purchasing their services. As McKinsey notes, "Anyone who has ever felt trapped in a cubicle, annoyed by a micromanaging boss, or fed up with the office politics has probably dreamed of leaving it all behind and going it alone."

As we move further into the 21st Century, policymakers will need to consider whether these workers are independent contractors or employees or fall into a new category of classification. What discriminatory protections, benefits, or income security should be put in place for these gig economy workers? Whatever the decision, companies are likely to continue to explore this new marketplace. We are already seeing this with the use of digital technologies – apps – that allow businesses to reach a broader pool of external talent and workers to have the independence they desire.

Perhaps the futuristic world of The Jetsons is not that far away.

Jennifer L. Parent is chair of the Litigation Department and a director of McLane Middleton. She is the current NH Bar Association Delegate to the American Bar Association and a past president of the New Hampshire Bar Association.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions