Edan Alva, Lyft driver of five years, protests outside the San Francisco Uber headquarters Wednesday. Photo: Jason Doiy/ALM

Thousands of Lyft Inc. and Uber Technologies Inc. drivers stayed off the road Wednesday in a strike aimed at increasing their pay and benefits, a protest that could be complicated by their status as independent contractors.

Gig economy drivers' classification— independent contractor versus employee —is still under scrutiny in California, whose Supreme Court adopted the worker-friendly ABC test standard to classify contractors in April 2018.

If drivers were employees, the National Labor Relations Act grants them a right to strike, in most cases, and protects against company retaliation. But outside of Seattle, gig economy drivers don't have a right to collective bargaining or recourse if they're fired for work-related protests.

“Like many other employment protections, the right to strike extends only to employees, and not to independent contractors,” said Charlotte Garden, an associate professor at the Seattle University School of Law, in an email. ”That has two legal consequences: first, companies can fire independent contractors because of their collective action without violating labor law.”

According to Garden and Stanford Law School professor William Gould, companies could face retroactive NLRA violation allegations if it's determined drivers were retaliated against and misclassified as independent contractors. Drivers participating in Wednesday's strike raised ”issues that only exist in an employment relationship,” Gould noted, such as worker conditions.

The second legal consequence Garden cited is that, as independent contractors, drivers on strike could possibly violate antitrust law. Because gig economy drivers are, technically, all running their own independent businesses, Gould said a strike for higher pay could be viewed as “business people who are trying to fix prices.”

“That's unlawful under the Sherman Antitrust Act,” Gould said in an interview.

Both labor law professors said it's “unlikely” that an antitrust case will be brought against drivers. Garden noted companies usually consider public perception before retaliating, not just legal consequences.

Neither Lyft nor Uber responded to request for comment on what consequences striking drivers will face, if any. The companies have long held that classifying drivers as independent contractors grants workers the ability to choose when they drive or take a day off.

The strikes could be sparked by the ride-hailing companies' decisions to go public without clear paths to profitability that don't include slashing driver pay or replacing drivers with autonomous vehicles. Lyft held its initial public offering last month. Uber's is scheduled for later this week.

In their S-1 filings, both companies said their business would be adversely impacted if drivers were classified as employees. Lyft's filing stated reclassification could lead to “claims under laws pertaining to unionizing, collective bargaining and other concerted activity” and claims of “retaliation under civil rights laws.”

Read More: 

As the Gig Economy Goes Public, Labor Regulations Still Pose Risk

9th Circuit: 'Dynamex' Worker Classification Test Applies Retroactively

Calif. Supremes Embrace Worker-Friendly Classification Test. Why This Matters to Gig Companies