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FTC addresses gig work

The Department of Labor isn't the only entity addressing gig work (see page 1). The Federal Trade Commission also released a policy statement on its enforcement efforts related to the issue. The FTC defines gig work as an activity where individuals earn income by providing ondemand work, often through a digital platform.

You may be ensnared in the FTC's enforcement net if it considers you a joint employer with a platform. On the other hand, your employees who moonlight at other jobs may not be gig workers, even though they may call it a "gig."

The FTC focuses on three market features related to its consumer protection and competition missions:

* Worker misclassification: Platforms often categorize workers as independent contractors. In practice, however, platforms may control workers' jobs in ways that counter this classification. What the FTC can do about it: It can sue platforms for deceptive or unfair pay practices or deceptive claims or nondisclosures about startup costs, training fees and other expenses.

* Diminished bargaining power: Platforms use opaque algorithms to control core aspects of the working relationship. In addition, a decentralized work environment, the potential lack of legal protection for workers to organize and a high turnover rate contribute to workers' diminished bargaining power. What the FTC can do about it: It can sue platforms for unfair or deceptive practices by an automated boss (also known as algorithm-based decision-making) or for restrictive contract terms (e.g., take-it-or-leave-it provisions hindering workers from seeking other jobs during or after their time with a platform).

* Concentrated markets: Markets encompassing online platforms are often concentrated, resulting in reduced choices for workers, customers and businesses. What can the FTC do about it? It can investigate platforms for agreements among gig companies to fix wages, benefits, fees or other terms of employment, and it can challenge mergers of platform companies.

The case for behavioral rules

If you don't have behavioral rules to guide employees or don't enforce the current ones, you are missing an opportunity to discipline workers appropriately when they cross behavioral lines. Name-calling, cursing and language that crosses the line into harassment based on protected characteristics like sex, age, race and national origin can and should be punished up to and including discharge. Allowing such behavior can trigger...

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