For Release
FTC Issues Policy Statement Clarifying that Independent Contractors, Gig Workers’ Organizing Activities Are Shielded from Antitrust Liability
The Â鶹´«Ã½ Trade Commission today issued a policy statement clarifying that independent contractors, including gig workers, are shielded from antitrust liability when engaging in protected bargaining and organizing activities—such as seeking better compensation and job conditions.
According to the FTC’s policy statement, the Commission will not challenge collective action by independent contractors and gig workers, which include rideshare and food delivery drivers, that provide labor services and are seeking better compensation and job conditions because such activities are exempted under the antitrust statutes.
"Companies increasingly rely on gig workers and independent contractors. As more of these workers consider unionizing to secure better pay and conditions, the FTC is making clear that the antitrust laws do not stand in the way of their efforts to collectively organize or bargain,†said FTC Chair Lina M. Khan.
“Gig workers shouldn’t be forced to accept low wages or poor working conditions just because they’re independent contractors,†said Hannah Garden-Monheit, Director of the FTC’s Office of Policy Planning. “The FTC’s policy statement today makes clear that the antitrust laws do not prevent gig workers from collectively organizing to fight for a better living.â€
Under the Clayton and Norris-LaGuardia Acts, the ability of workers to organize and collectively bargain over wages and labor conditions is protected from antitrust liability. However, as more workers are increasingly classified as independent contractors and gig workers, they face a patchwork of cases regarding the potential application of the labor exemption.
The FTC’s policy statement makes clear that workers engaged in protected bargaining or organizing activity are not categorically excluded from the antitrust exemption simply because they do not have a formal employer-employee relationship with the firm with which they are negotiating regarding compensation or working conditions. According to the policy statement, the protection of all workers from antitrust liability when they are engaged in protected labor activities is firmly grounded in the statutory text, consistent with existing case law, and reflective of the original meaning of the labor exemption.
Categorically excluding all independent contractors from the protections of the labor exemption would give employers both the incentive and opportunity to exploit asymmetries in antitrust liability protection between workers, according to the policy statement. For example, businesses would have an opportunity and incentive to classify (or misclassify) their workers as independent contractors to suppress wages and to gain an unfair advantage against competitors who provide better compensation and job conditions to workers.
The Commission voted 3-2 to approve the policy statement with Commissioners Andrew N. Ferguson and Melissa Holyoak voting no. Commissioner Ferguson issued a dissenting statement joined by Commissioner Holyoak.
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