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Abstract

Digital workers have not had significant success in securing conventional forms of collective workplace representation, particularly statutory collective bargaining. This article examines an established sectoral bargaining statute, the Status of the Artist Act (SOA), as a possible model for collective bargaining legislation that is better suited to regulate digital work than the Wagner Act model (WAM) of labor legislation. Key features of the WAM labor legislation pose significant barriers for digital worker organizing. These include requirements to: demonstrate employee status, accurately estimate the number of employees in the proposed used, the requirement to demonstrate sufficient support. The WAM is oriented towards single-employer, single location, enterprise-level bargaining units. This is ill-suited to the organization of digital work. Recent certification cases involving Uber, Lyft, and Foodora illustrate the difficulties of these WAM features for digital worker organizing. The SOA, applicable to self-employed professional artists, shares much of the WAM framerk, but it departs from the WAM in crucial ways designed to overcome collective bargaining barriers for the arts sector. Key differences include: no requirement for workers to establish employee status; a broader approach to appropriateness relieves against fragmented, small, units characteristic of the WAM; a “most representative” standard instead of majority support means certification does not turn on the applicant’s ability to accurately determine the number of workers in the proposed unit; limited challenges to representativeness; and, collective agreements provide a minimum floor, facilitating representation of heterogeneous workers in a unit. Organization of work and workers in the digital work and arts sectors share important similarities including the “gig” nature of the work and the geographic dispersion of workers. This article suggests that the structural similarities between digital and arts work, reflected in the SOA framework, offer guidance for a more effective statutory collective bargaining system for digital workers.

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