"I came to this bar in a Lyft," Ars' Cyrus Farivar started. "Should I feel guilty about that?”

From there, UC Hastings labor law professor Veena Dubal certainly delivered.

"It's a really good question," Dubal said. "I started researching this type of work with taxi workers before Uber or Lyft existed, and I've seen what [ridesharing]'s done to their livelihoods. So I prefer regulated labor."

She's never used an Uber or Lyft. "That said, these are desperate people who need your consumption, your dollars, and it's a hard thing to say no... but it'd be great if those people want to become taxi workers and have their income regulated. So I don't know if you should feel guilty. Maybe a little bit."

Throughout this Ars Live event on the gig economy, Dubal explained comparisons between on-demand companies and cheap clothing retailers and outlined why taxi companies (though far from perfect) generally provide a better experience for drivers. But recent legal cases sat on the forefront of everyone's mind, and Dubal was happy to explore this, too.

In May 2018, a California Supreme Court ruling in Dynamex v. Superior Court of Los Angeles County essentially switched the burden of proof—rather than workers proving they're employees, companies now had to prove plaintiffs aren't employees. Dynamex established a three-pronged test: Does the employer control the work conditions? Does the worker perform work outside the employer's core business? And is the worker engaged in an independently established business, trade, or occupation?

If a Best Buy hires a plumber, for instance, Dubal notes the plumber would be considered a contractor (that second prong is perhaps the biggest hurdle for gig-economy companies).

Unfortunately, Dubal doesn't have much faith based on precedent. For instance, when FedEx acquired a contractor-dependent company called Roadway Package Systems, the shipping giant wanted to maintain that contractor setup despite forcing new employees to adhere to stricter guidelines (like purchasing trucks with a big FedEx logo on the side). Multi-state litigation followed. Workers earned what felt like victory in Alexander v. FedEx—everyone seemed to acknowledge delivery people as employees.

However... no one became an employee. "When the court says 'This, this, and this make these people employees,' FedEx just changed [its] business model," Dubal says. "The case cost billions. What if that money just went to employees in the first place?"

Dubal sees a similar shift possibly happening. Increasingly, Uber and Lyft offer more than traditional driver-conducted rides: bike shares, electric scooters, possibly autonomous transport. Regarding the second prong of Dynamex—Does the worker perform work that's outside the employer's core business?—defining a core business could get a lot fuzzier.

"So if [companies] dilute their service..." Farivar begins.

"If they are no longer a taxi service," Dubal interjects. "If that's not the primary thing they do and they do all these other things..."

"Foiled again," realized Farivar.

Hope is not lost yet, according to Dubal. For more on possible solutions—and for answers to questions like, "Why haven't workers pushed back harder?", "Is Lyft really just as bad as Uber?", and "How is this going to play out?"—the full episode of Ars Live is available above.

Bay Area readers, don't miss the next Ars Live on 8/8 at Eli's Mile High Club in Oakland. Farivar and Annalee Newitz will talk to author Robin Sloan about writing sci-fi with machine learning (hey, if it can do movies, why not books?). Information can be found on Eventbrite, and you can follow Ars Live on Facebook to stay up to date on all future episodes.

Listing image by Jaap Arriens/NurPhoto via Getty Images