Private Law Theory

ABSTRACT
Many companies have long sought to classify their workers as self-employed independent contractors rather than as employees. The battle over appropriate worker classification – employee vs independent contractor – has become more protracted in recent years due to the rise of online platform-based business models that provide on-demand services, such as Uber and Lyft (ride hailing), Grubhub (grocery delivery), Postmates (home deliveries), and TaskRabbit (home chores). Missing from these classification contests are Airbnb hosts (those who rent out a room, apartment, or house for short-term stays). To date, no one seems to question that Airbnb hosts are self-employed independent contractors. But Congress effectively lumped together Uber drivers and Airbnb hosts in its CARES Act Pandemic Unemployment Insurance. Perhaps now is the time to consider whether Airbnb hosts, like Uber and Lyft drivers and other on-demand workers, are actually employees misclassified as independent contractors.

This article first briefly reviews the more ‘traditional’ tests used to determine whether workers have been properly classified as independent contractors, particularly applied to twenty-first century platform-based businesses. This article then introduces a different classification test – the ‘ABC Test’ – recently adopted by case law and statute in California. Using the State of California’s lawsuit against Uber and Lyft that seeks to enforce California’s ABC Test by forcing Uber and Lyft to classify their drivers as employees rather than independent contractors, this article compares the elements of the ABC Test as alleged against Uber and Lyft to consider applications of these standards against Airbnb hosts. A California Superior Court has ruled that Uber and Lyft are in violation of California’s ABC Test by continuing to classify their drivers as independent contractors instead of employees. The California Superior Court’s and other courts’ similar holdings are used to analyze similarities between Uber and Lyft drivers and Airbnb hosts. This article argues that application of the ABC Test to Airbnb hosts could lead to the conclusion they are actually misclassified employees.

Sprague, Robert, Are Airbnb Hosts Employees Misclassified as Independent Contractors? (August 26, 2020). University of Louisville Law Review, volume 59, 2020.

First posted 2020-09-02 10:55:15