Miriam A. Cherry
85 Geo. Wash. L. Rev. 1804
Technology and the rise of the on-demand or sharing economy have created new and diverse structures for how businesses operate and how work is conducted. Some of these matters are intermediated by contract, but in other situations, contract law may be unhelpful. For example, contract law does little to resolve worker classification problems on new platforms, such as ridesharing applications. Other forms of online work create even more complex problems, such as when work is disguised as an innocuous task like entering a code or answering a question, or when work is gamified and hidden as a leisure activity. Other issues involve internet users making contributions to online communities, believing their efforts are volunteer, when in fact they are being monetized by others.
To date, courts in the United States have largely failed to recognize what is happening in these new online work cases, and plaintiffs have yet to find a solid doctrinal ground for recovery. Contract law is stymied in many of these online work situations because assent—widely acknowledged as foundational to contract—is generally absent. In some of these situations, one party was unaware that work was even being performed, or that their work might later be monetized. A comparative approach with law in the United Kingdom is therefore helpful. Even though the U.S. courts that have examined these cases have purported to use an unjust enrichment or restitution formulation to analyze the issues, in reality they are defaulting to traditional notions of agreement or assent that are grounded in contract law. Referring to the more richly nuanced and developed law of unjust enrichment and restitution in U.K. law may result in a more fruitful and well-reasoned analysis of online work cases.
