Jul 29, 2018
JULY MEMBER LUNCHEON
Report on the MCBA July Membership Luncheon: Legal Challenges of the Gig Economy
Jul 29, 2018
By Susan Feder
MCBA members who attended our July membership meeting and lunch heard an informative and interesting presentation on how the gig economy is changing the legal landscape. Exploding developments in technology and the popularity of online app-based companies have shifted the business paradigm in many areas. With these increased business opportunities come significant legal challenges, however. This program addressed the role of the legal profession in the rise of on-demand businesses, and the significant legal challenges these companies face as employers and as providers of goods and services to consumers.
Our speakers were Loni Mahanta, Associate General Counsel at Lyft, and Nancy Allred, Senior Counsel (Policy) at Airbnb. Loni Mahanta oversees all of Lyft’s labor and employment issues, including the defense and preservation of Lyft drivers’ status as independent contractors. Her work with Lyft includes managing class action litigation and government audits, negotiating with the NLRB and with the City in its efforts to permit collective bargaining by independent contractors, and helping to develop policy beyond just Lyft around portable benefits and the creation of a modern, flexible social safety net suited to the gig economy. Prior to joining Lyft, she was an attorney at Folger Levin LLP, and Cowell & Moring LLP, where she specialized in employment litigation. She obtained her BA in International Relations from Stanford University, and her JD from Hastings.
Nancy Allred advises Airbnb on regulatory, policy and governmental affairs. She also supports Airbnb’s public policy team on legislation, regulatory reform, compliance and product implementation. Prior to working at Airbnb, she was in-house at Uber and before that on the legal team at Southern California Edison and at Baker & McKenzie in San Francisco. She earned her undergraduate degree from UC Berkeley and her JD from Columbia University.
Tom McInerney, a shareholder at Ogletree Deakins in San Francisco, and co-chair with yours truly of MCBA’s Program Committee, moderated the program.
What do your companies currently do in the marketplace, and where are they headed in the future?
On behalf of Lyft, Mahanta said that it is a “mission-driven” company with a big picture focus. Their long-term vision is providing a better transportation model for society. That future includes autonomous vehicles and the prospect of Lyft partnering with public transportation to optimize traffic reduction, including through providing “last-mile” solutions. Lyft was launched on May 31, 2012, and has already grown to employ more than 3400 people.
With respect to Airbnb, Allred recounted the local beginnings of the company ten years ago, and the vision of allowing homeowners to “monetize” their homes. Airbnb is now a global business, with a presence in 191 countries. One new vision is providing “Airbnb Experiences” where customers purchase an entire experiential package in addition to lodging. The overriding emphasis of Airbnb’s philosophy is “living like a local” and helping people feel like they belong anywhere they stay.
What are the companies’ most vexing legal challenges?
For Airbnb, dealing with the various laws of 191 different countries presents an obvious challenge, particularly since they must deal not only with national laws but also down to the local level. Worldwide, Airbnb maintains a 300-person policy team to deal with compliance and other issues. In addition, protecting data and maintaining privacy rights presents a significant legal challenge in that a great deal of data is generated on both guests and hosts on the platform.
For Lyft, regulatory issues and privacy are the most difficult legal issues. Mahanta emphasized that Lyft must be a careful steward of information collected on its riders. Another challenge is keeping up with the company’s almost overnight changes and ideas. As a fast-growing and relatively new startup, new programs are constantly suggested and implemented and the legal team is called on to support the company’s hyper-growth model while maintaining legal compliance. This aspect of her work is what makes her job so fun and stimulating.
How have your views of the practice of law changed since joining a general counsel’s office?
Both speakers answered that their jobs are less about discreet legal problems and more about partnering with their businesses in an advisory role. They also noted that the high-profile of their companies adds another layer of concerns.
What are the current regulatory challenges facing your companies?
For Lyft, Mahanta responded with a history of why the ride sharing app is regulated by the CPUC, noting that in California, most regulations faced by Lyft come from the state, rather than at the local level. For Airbnb, Allred stated that the operative regulations are on a city-by-city basis, and almost invariably include taxes. She emphasized that Airbnb needs to be a good partner with city governments and act as a “voluntary collection agent” but expressed concern about creating “platform liability” to act as a government enforcement arm for local zoning and taxing issues.
What is the current state of the dispute regarding the legal classification of drivers on the Lyft platform?
Mahanta responded that the vast majority of Lyft drivers work part-time (85%) to supplement their income and not only want but need flexibility. The California Supreme Court’s decision in the Dynamix case has created much uncertainty in the area. One of the interesting aspects of her job is working on broader solutions to the problem of trying to fit gig workers into classifications designed for the traditional economy. She works on social and legal policy related to developing more portable benefits that would work best for gig economy workers and noted that solutions have to come from the joint efforts of many different stakeholders.
How have your companies addressed issues regarding discrimination, including against customers with disabilities?
Airbnb is working hard to tailor its booking process to reduce discrimination, experimenting with various features such as not showing photographs of guests until later in the process. They are growing a “book now” feature where hosts do not vet individual guests, thus allowing anyone to book. And they have partnered with the NAACP for help in this work. They are also working to enlist more hosts who can accommodate guests with disabilities. One problem on that front is that many hosts do not realize what constitutes true accessibility and advertise their homes as accessible when they are not and Airbnb is working to ensure that descriptions correctly reflect the accessibility.
Lyft has been working with the National Federation of the Blind to educate drivers on riding with service animals, and as a result has improved access in the last two years. They have also been working to train drivers in providing additional help to disabled passengers, such as assistance getting from the car to the destination.
Audience questions touched on some of the broad social policy implications of the gig economy, from worker benefits to the role of autonomous vehicles, reinforcing how interesting and challenging legal work in the gig economy arena can be. The meeting concluded with a rousing thank you to our excellent speakers and moderator!
Susan Feder is a member of the MCBA Board and is a full time mediator practicing in San Francisco and Marin.