FTC Says Antitrust Laws Don’t Apply to Gig Economy Collective Bargaining

Gig workers and other independent contractors can take collective action seeking better compensation and job conditions without being challenged by the Federal Trade Commission (FTC), the regulator said Tuesday (Jan. 14).

The FTC said this in a press release announcing its release of a policy statement clarifying that these independent contractors are shielded from antitrust liability when engaging in these activities.

“Companies increasingly rely on gig workers and independent contractors,” FTC Chair Lina M. Khan said in the release. “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.”

While workers’ ability to collectively bargain is protected from antitrust liability under the Clayton and Norris-LaGuardia Acts, there is a “patchwork” of cases regarding this exemption when it comes to the growing number of independent contractors, according to the release.

The FTC’s policy statement clarifies that statutory text, existing case law and the original meaning of the labor exemption support the protection of all workers from antitrust liability when they are engaged in protected labor activities, the release said.

The commission approved the policy statement in a 3-2 vote, per the release.

In a dissenting statement of Commissioner Andrew N. Ferguson joined by Commissioner Melissa Holyoak — the two commissioners who voted no — Ferguson wrote that he dissented from the issuance of the policy statement because it came just days before the inauguration of President Trump.

“As I have said before, this is not the time for the Biden-Harris Commission to announce policy statements, let alone declare how the agency will exercise prosecutorial discretion going forward,” Ferguson wrote. “Indeed, it is senseless for the Biden-Harris Commission to announce, on its way out the door, its plans for the future. It has no future.”

In another issue involving gig workers, the state legislatures of Massachusetts and California have debated proposals to reclassify Uber and Lyft drivers as employees rather than independent contractors.

In March, the U.S. Chamber of Commerce joined a lawsuit challenging a Department of Labor independent contractor rule that included a new test for classifying employees and independent contractors.