The rapid spread of the COVID-19 pandemic left consumers to figure out how to bring the comforts of the world into their homes. Few industries benefited from this trend like the food delivery industry. Revenue more than doubled for the major food delivery companies during the pandemic, and these traditionally unprofitable companies posted profitable quarters in 2020 and 2021. But while the companies continue to grow, restaurants and delivery drivers generally have not profited in tandem. Food delivery drivers have been exposed to increased safety risks. They have also been underpaid and have not received all their promised tips. Because the platforms classify delivery personnel as independent contractors, rather than employees, the platforms do not have to provide delivery personnel a minimum wage or health benefits.
The rise of gig economy services, which include the food delivery platforms, has also increased calls to update labor laws because of complaints about how gig economy companies exploit their labor. Although gig economy workers share many of the same qualities as employees, gig economy workers are usually classified as independent contractors to determine whether federal and state collective organizing laws protect their actions and whether they qualify for employee benefits.
This Note will discuss the intersection of antitrust law and labor law in the gig economy space, centered around food delivery platforms. This Note will then argue that antitrust enforcers and courts should analyze potential antitrust violations under a “fairness” standard that considers how consolidation of market power affects upstream markets like the labor market.