The largely immigrant of color workforce is denied lifesaving employment rights, while experiencing media stigma and political persecution. Attempts to improve these conditions through regulation may eliminate income opportunities for undocumented workers.
The “gig economy” of ride-hailing and food delivery apps has rapidly grown in the past five years. This development is the latest in a five-decade long trend that externalizes risk and liability by separating production across ‘flexible’ contractors. Uber, Lyft, and others commit regulatory noncompliance, claiming their workers as independent contractors, financially benefiting while causing premature deaths among a largely immigrant of color workforce. Both moral and financial blame for workplace injury is placed on the individual worker: companies refuse to cover injury compensation and health insurance, while streets are structurally designed to deprioritize the safety of vulnerable workers. Gig economy workers are frequently targeted with racist dogwhistles by media discourse, and politicians such as New York’s Bill de Blasio respond to citizen complaints of a threat to ‘quality of life’ with aggressive policing. White supremacy informs both cases of “broken windows” policing mobilized against workers, and when workers rights are ignored to the benefit of shareholders. In response, drivers have organized, and sympathetic legislators have attempted to regulate. California is currently adopting the most obvious method to ensure rights are protected, clarifying and enforcing W2 employment status where companies have gotten away with misclassification. This may prove problematic for independent contractors that are unauthorized immigrants, who legislators should recognize and account for.
Defining Employment and Contracting
With the rise of smartphone applications in the 2010s, a platform-based service economy grew rapidly, upending existing industries while growing the total use of services. In the gig economy’s largest sector, Transportation Network Companies (TNCs) such as Uber and Lyft, the total for-hire and taxi ridership in the United States grew from 1.4 billion in 2012 to 4.2 billion[1] in 2018, exceeding local bus ridership (Schaller 2018, 7). The rise of gig work is situated within a, “continuation and an intensification of developments that have been underway for nearly four decades,” of Post-Fordist production and neoliberal socio-economic reforms (Doorn 2017, 902). Beginning in the late 1970s, the historical full-time, often-unionized social contract of labor declined in favor of “flexible” arrangements, with temporary employment and risks increasingly shouldered by workers (Peck and Theodore 2012, 745). This included the taxi industry, which historically had employees in most US cities. Beginning in the 1970s, taxi companies across the US moved to a model of leasing their medallion-equipped vehicles at costly rates to independent contractors (Dubal 2017, 13). Dubal notes that beginning in the mid-1970s, “many companies initiated the process of externalizing risks and responsibilities,” which can be perfectly represented by the gig economy’s reliance on rapidly depreciating driver-owned vehicles (Dubal 2017, 13). The gig economy did not replace employee labor with contingent labor, but did consolidate the market to just a few companies while growing the practice to a greater share of the economy.
The independent contractor classification forms the legal basis for gig workers’ limited rights and benefits in work, while theoretically providing flexibility to both parties. Classification of workers as either employees or independent contractors is not a steadfast rule in the United States but based on meeting a variety of criteria adopted from Common Law. Power is a key consideration in whether work is classified as Independent Contracting or Employment under Common Law, especially in items A, C, and I:
(a) The extent of control which, by the agreement, the master may exercise over the details of the work.
(b) Whether or not the one employed is engaged in a distinct occupation or business.
(c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
(d) The skill required in the particular occupation.
(e) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.
(f) The length of time for which the person is employed.
(g) The method of payment, whether by the time or by the job.
(h) Whether or not the work is part of the regular business of the employer.
(i) Whether or not the parties believe they are creating the relation of master and servant.
(j) Whether the principal is or is not in business.
(Ring et al. 2019, p.1-2)
These principles establish a relationship of informed consent to independent contracts, as opposed to the “master and servant” relationship of employment. Independent contractors typically have the autonomy to determine what contracts they want to take, and how they want to accomplish the work under the contract. Independent contracting implies a more equal level of power, where one entity seeks a particular product accomplished through the short-term creative effort of another entity. Employment status offers rights, protections and benefits under the Civil Rights Act, Americans with Disabilities Act, Family Medical Leave Act, Social Security Act, National Labor Relations Act, and Affordable Care Act, while independent contracting does not generally have protections (Zwick 2018, 687). Employment benefits introduced in the New Deal and Fordism era have always been afforded on a discriminatory basis, incorporating normalized white Americans and excluding largely Black and Latinx farmworkers and home care workers (Gilmore 2002, 18). Misclassification continues racist application of employment rights, guaranteeing these benefits for a company’s mostly white technical staff while barring its service workers from them.
In the 2019 SuperShuttle DFW Inc. decision, the National Labor Relations Board overturned Obama-era rules that added the considerations of whether a worker was economically dependent on a contract, and whether the worker has a proprietary interest and skills in their work (Ring et al. 2019). The NLRB General Counsel issued a memo applying the SuperShuttle DFW Inc decision to Uber in particular. The memo claimed that Uber drivers experience no supervision, have “near-absolute autonomy in performing their daily work,” and have “entrepreneurial freedom,” (Office of the General Counsel of the NLRB 2019, 9-12). They stated that concerns over Uber’s surveilling system are minimized by the “unlimited freedom to look elsewhere for better earnings,” that drivers have (Ibid., 7). This emphasis of ‘choice’ under capitalism, which is also available to all employees, does not understand the material conditions of drivers, who are often have opportunity limited by discrimination against their race, language, education, and immigration status. The General Counsel also does not adequately recognize the disciplinary technological controls that platform place on workers.
Labor Experience of Gig Workers
Economic Policy Institute[2] examined the experience workers have driving for Uber and argues that it meets multiple qualities of an employment relationship (Mishel and McNicholas 2019). Gig economy platform corporations control customer prices and worker earnings with no negotiation available (Rosenblat 2016). In Uber’s case, fares were completely detached from driver earnings in 2016, bringing it even closer to an employment relationship. Drivers are not able to know a passenger’s destination or their expected earnings before accepting a ride request, and face termination for not accepting 80-90% or more of ride requests (Office of the General Counsel of the NLRB 2019, 8). This can make individual rides unprofitable for drivers when remote destinations require “deadheading” back to an urban area to receive more requests. Passenger rating systems, which typically demand contractors maintain at least 4.6 out of 5 stars, enforce the performance of emotional labor and customer service norms, and drivers may risk termination for not tolerating abusive customers out of fear for retaliatory reviews (Rosenblat 2016). Uber describes its drivers as “small business entrepreneurs,” yet their earning opportunities are limited only to the amount of time they work for the company (Uber 2014).
Fatal Coupling of Power and Difference in the Gig Economy
Ruth Gilmore conceptualizes how the ‘practitioners’ of racism exploit a fatal coupling of power and difference (Gilmore 2002). Largely supported by the labor of immigrants of color with limited other job opportunities, the gig economy uses denial of its technologically enhanced power and control over workers to enact violence against them. Able to continuously draw from demographics with limited employment opportunities, the industry makes workers’ bodies disposable by denying health care coverage and injury compensation.
The analysis commissioned by the NYC Taxi & Limousine Commission, written by faculty at the New School and U.C. Berkeley, identifies that, “the app companies have been able to expand their workforce by drawing principally immigrants without a four-year college degree and who face restricted labor market opportunities,” noting that the economic growth that followed the Great Recession was not experienced by immigrants without four-year degrees (Parrott and Reich 2018, 15). An economy that denies job opportunities based on white supremacy allows gig economy companies to rapidly expand with low wage on-demand labor.
New York City requires TNC companies share data the companies are not forthcoming with in other cities. Parrot and Reich’s report shows that about 90% of New York’s TNC drivers are immigrants, with the majority having emigrated from the Dominican Republic, Haiti, Pakistan, India, and Bangladesh (Parrott and Reich 2018, 15). 65% work full time, and 80% acquired their vehicle specifically for the job, attaching investment and debt risk to the career, with many of them doing so using high-rate, subprime credit leasing (Ibid., 15). Ravenelle compares this practice to industrial company towns, exemplified by a driver who was terminated just two weeks after signing with Uber’s financing scheme, which had him pay $200 per week on $37,200 in debt for a $16,419 Chevy Cruze. (Ravenelle 2019). In another case, The Atlantic chronicled Oakland-resident Sakhr Sharafadin, a young immigrant from Yemen who hoped to balance gig work with school. Soon after financing a new Toyota Camry, he developed an eye condition that required surgery. Uninsured, he paid his medical bills on credit cards (Markham 2018). Between the debt of health care and a rapidly depreciated vehicle, he was forced to drop out of college and work 12-hour days on Uber, seven days a week, indefinitely.
As a result of apparent regulatory noncompliance, workers of color experience the consequences of this debt and underinsurance. Pulido (2015) establishes a definition of white supremacy in corporate regulatory noncompliance. Pulido uses an example of a battery recycling facility that has violated environmental contamination regulations for decades in a majority Latinx neighborhood outside of Los Angeles. Exide, the corporation, has chosen to ignore citations and continue to expose communities of color to dangerous pollutants, and agencies have not stopped it. Systemic white supremacy does not require racial hatred. Pulido states that, “Exide is fully aware of what it is doing and does not wish to harm its neighbors, but the financial well-being of the institution, which overwhelmingly benefits whites, is prioritized,” (Pulido 2015, 813). Similarly, gig economy companies continue white supremacy through regulatory noncompliance that prioritizes mostly white investors over workers of color.
Nationally, after expenses and with individual healthcare, drivers earn just $9.21 per hour according to the Economic Policy Institute’s methodology, which subtracts estimated expenses from the revenue data that Cook’s Uber-commissioned study revealed (Mishel 2018, 2). Based on Uber’s New York operating cost and the commission the company receives, Uber exploits a 600% profit margin, suggesting the capacity to increase compensation (Parrott and Reich 2018, 45). Revenue instead goes largely to stock-based compensation of its mostly white leadership staff (Swartz 2019).
Sixteen percent of TNC drivers in New York lack any health insurance, double the national average, and 40 percent have incomes low enough to qualify for Medicaid (Mishel 2018, 5). The mortality rate for uninsured people with the same diagnoses as insured people is 35 percent higher (Castaneda and Saygili 2016). These effects are not limited to individual gig economy workers, but their entire families. Half of drivers in New York support children and provide the majority of their family’s income (Mishel 2018, 5).
Right to life in the gig economy is often abridged by employer-created working conditions. In work that requires more vulnerable use of roads, violence can be created by street designs that are structured to prioritize high-speed circulation of goods in automobiles at the expense of safety. Do Jun Lee’s (2018) research is on New York City’s restaurant food delivery e-bike couriers, independently contracted both by apps including Uber Eats and Postmates as well as individual local restaurants. The 153 workers that Do Jun Lee interviewed and surveyed are largely Mandarin and Spanish-speaking immigrants. 33.9% disclosed their status as undocumented, only 2.3% are white, and just 17.6% took the English language version of the survey (D. J. Lee 2018, 75). Couriers experience frequent injuries as a result of drivers, the health effects of which are exacerbated by a lack of worker-compensation, health insurance, and sick-leave under their independent contracts (Ibid., 98). Lee considers unsafe streets a regime of cumulative irresponsibility that results in deaths along lines of power difference, explaining the structural result rarely discussed:
This environment focuses the blame for conflicts and harm on personal responsibilities rather than structures or systems; this is particularly problematic in a highly unequal society because assigning personal responsibilities for harm becomes largely based upon power. (Ibid., 115)
Gig economy workers are often perceived by white people as outside the limits of normalization, encouraging policing against them. This stigma extends to other independent contractors, including ride-hailing. Uber’s 2018 US Safety report revealed the frequency of assaults against drivers, which contrasts with media coverage Uber notes as almost entirely focused on passengers who have been assaulted by drivers (Uber 2019). Since 2017, Mayor Bill de Blasio has instructed the NYPD to criminalize food delivery couriers. Most couriers use more affordable throttle-based e-bikes that are illegal under the city’s law, which insists on pedal-assist sensors, a technology difference that does not affect speed or power. In the first quarter of 2018 alone, 459 tickets of $500 were issued, and 320 e-bikes were confiscated by the NYPD. 68.9% of surveyed Mandarin-speaking couriers have received citations, compared to 41% of Spanish-speaking, and just 12% of English-speaking couriers (D. J. Lee 2018, 193). This crack-down has been justified by public complaints and is considered by de Blasio to be a “quality of life” enforcement action, continuing a regime of broken windows policing rooted in defining normalized and non-normalized behavior (Ibid., 188). Enforcement does not consider the quality of life of the couriers it charges.
Wealthier white cyclists have become normalized in New York, with improved bike infrastructure in wealthier areas and the CitiBike program used by commuters and tourists, which itself has pedal assist e-bikes. In comparison, immigrant delivery couriers are portrayed in media discourse as reckless and dangerous to the social order (D. J. Lee 2018, 141). Couriers are visually identifiable and set apart from normalized populations by their required high-visibility yellow vests. Some couriers report that the vest exacerbates targeted assault, policing, and verbal abuse. One courier, a white woman, evades the requirement to “pass” as a non-courier, using her embodied privilege to avoid stigmatization (Ibid., 145). Applying Pulido’s concept of racially devalued bodies functioning as ‘sinks’ to environmental contamination, Lee makes the argument that, “immigrant delivery workers function as ‘sinks’ for collective traumas involved in delivery,” (Ibid., 18). Lee’s work is one of the few pieces of research that has listened to independent contractors and interpreted both a strong case against problematic regulation while giving nuance to the exploitative labor conditions, value, and necessity that workers have.
In Lee’s media discourse analysis, only 5% of news stories regarding e-bike couriers considered the need for systemically improved street infrastructure, while most stories provided a platform for privileged white residents to give accounts in the media that, “indicate that they feel deep fear and panic when encountering immigrant delivery workers in their neighborhoods,” (Ibid., 63). White supremacy exists in New York when policing is used to value this fear over the livelihoods of immigrant workers of color.
Opportunities for Regulation
With federal NLRB action on gig economy classification ruled out, the authority to regulate and enforce is in the hands of states. In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, the California Supreme Court ruling rejected the state’s previous classification standard and implemented the “ABC test,” that requires all three conditions be met for independent contracts to occur (AB-5 Worker Status: Employees and Independent Contractors. 2019):
(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
This new test was codified into law in California’s recently passed Assembly Bill 5. Uber maintains that drivers meet the conditions under this test, because “drivers’ work is outside the usual course of Uber’s business, which is serving as a technology platform for several different types of digital marketplaces,” (West 2019). Uber exerts that all labor done in taxi service, food delivery, and scooter charging, which generates all of the company’s revenue, is tangential to the core mission of the company, “technology.” Uber is engaging in regulatory non-compliance, as it has historically. Uber originally entered markets in explicit defiance of local taxi medallion, insurance, and license laws, using promotional free ride credits to gain popular support that was significant enough to force local governments to comply (Claypool 2016). TNC companies gained their competitive advantage by brazenly evading existing regulations, and they hope to accomplish the same with workers’ rights protections (Zwick 2018).
Explicit demands for gig economy companies to reclassify may not ultimately make a difference, as historical precedence has shown. Following Tracy v. Yellow Cab, California taxi drivers technically gained the right to employee status in 1996, but no lasting effect was made (Dubal 2017, 747). They gained rights without any power to receive the benefits, with taxi companies threating blacklists of any driver seeking to have them enforced. Later, organized taxi drivers in the Friendly Cab v NLRB case sought to form a worker cooperative, but the Teamsters union that supported their case dissuaded against this idea in favor of employment status (Dubal 2017, 770).
One concern of compliance with California’s new classification standards is the continued exclusionary aspects of employments. Employers in the United States are responsible for verifying employment authorization upon hiring through the I-9 form or E-Verify. This creates a barrier to income for undocumented immigrants. Working as an independent contractor does not require verification of immigration status or employment authorization, with the IRS providing undocumented immigrants with an Individual Taxpayer Identification Number for filling taxes (Saucedo 2018, 122). Gig economy companies do, however, require a Social Security Number (SSN) to run a privately operated background check. Still, a variety of immigration statuses and visas can result in individuals having an SSN but not having work authorization. These include asylum applicants who have been in the US for less than 180 days, student visa holders, as well as people who previously had legal immigration and work permit status, including DACA, but are no longer authorized to work or live in the US.
Very little scholarly research exists on the extent and population of unauthorized gig economy workers in the United States. Having heard personal anecdotes from gig economy workers in this situation during my own time as a food delivery worker, I searched for additional cases. In forum posts on the legal advice site Avvo.com, forum posters came with the realization that gig economy work they had already been doing was a violation of their visa, and immigration lawyers validated their concerns and advised immediately hiring an immigration lawyer (Avvo 2014). Those with legal immigration status but without general work authorization risk losing their visa if US Citizenship and Immigration Services becomes aware of their 1099 income filings. Gig economy companies do not provide a warning about this risk, as people found out on this legal forum.
The demographic that may have the most to lose from employment classification is previously documented workers. In a guide to independent contracting for undocumented people, non-profit Immigrant Rising advised that, “legal experts who consulted with us could not imagine a scenario in which prior unauthorized work caused an additional adverse impact to adjustment beyond the adverse impact of having been present without authorization,” (Immigrants Rising 2019, 6). Do Jun Lee’s research of New York bicycle couriers demonstrates that classification applies to some undocumented immigrants in the gig economy. Additional research should be done to determine methods of labor regulation that can be inclusive of undocumented immigrants while introducing essential protections, benefits, and collective organizing capacity.
Conclusion
Structures of white supremacy exhibit in the daily labor experience that many gig economy workers have, which ultimately serve premature death. Deaths are analyzed by media at the individual fault level, ignoring the systems at both the corporate and public level that influence incidents. Gig economy corporations benefit from the availability of workers that they can treat disposably, drawing bodies from populations with restricted income opportunities. Technological disciplinary methods allow companies to deny their difference in power from the worker, giving them the ability to deny essential care for the right to life. This standard has been established while gig workers of color face policing and stigmatization by media, neighbors, and politicians. The regulatory basis of the gig economy’s exploitation is in independent contracts. Legislative and judiciary efforts to enforce employment classification have not historically been successful, with additional coercion seen in Tracy v. Yellow Cab to prevent its intended effect. Policymakers should consider the risks that classification pose to undocumented immigrants.
[1] Scholler, former Deputy Commissioner for Traffic and Planning in New York, estimates total ridership based off of Lyft’s publicly released reports, extrapolated using credit card transaction data that shows the market share between Uber and Lyft (5).
[2] EPI is a 501(c)(3) pro-labor economic research think-tank with a stated mission that, “every working person deserves a good job with fair pay, affordable health care, and retirement security.” 29 percent of its funding comes from labor unions. (“About | Economic Policy Institute” n.d.)
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