Uber as for-Profit Hiring Hall: A Price-Fixing Paradox and Its Implications

Abstract

Uber poses a consistency problem for antitrust. In certain high-profile legal conflicts over its business model, Uber aims to have it both ways, maintaining that it is entitled to engage in price coordination of ride services but that Uber drivers may not coordinate with each other in their bargains with Uber. Meyer v. Kalanick and Chamber of Commerce v. City of Seattle, two currently pending antitrust lawsuits, expose a position to which Uber is committed and which, more importantly, is implicit in status quo regulation of Uber: that Uber is entitled to benefit from a price premium resulting from price coordination in ride services while drivers are barred from doing so. The labor exemption from antitrust law traditionally functioned to distribute such a premium from coordination, and it still does so where services are performed within the bounds of the employment relationship. As the labor exemption recedes, Uber dramatizes a more general regulatory tension by pressing the implications of the exemption’s absence against drivers’ coordination, while seeking to protect its own price-coordination activity. In developing this argument, I offer a model for understanding Uber’s activity that differs from -- or at least, does not require -- a position often taken by worker advocates, that Uber is selling ride services and is legally the employer of Uber drivers. By crediting and giving flesh to Uber’s own self-conception, we arrive at a fruitful analogy: the hiring hall. This foil illustrates both the regulatory inconsistency and some ways to resolve it.