Analysis

Lawmakers Eye Stronger Coronavirus Help For Gig Workers

Law360 (March 25, 2020, 7:33 PM EDT) -- Local lawmakers across the U.S. are championing greater labor protections for gig economy workers during the COVID-19 pandemic, as the crisis sees both a tremendous spike in demand for workers delivering groceries and hard times for other industries where such labor pools have become common.

While much of the U.S. workforce is working from home to reduce the spread of the virus, many gig economy workers remain out and about, delivering goods as the novel coronavirus pandemic drags on.

The demand for delivery workers has never been greater, and neither has the risk.

Not only are gig economy workers doing deliveries at a greater risk of contracting the virus, but they also face economic uncertainty if they have to stop working. Many gig workers are classified as independent contractors and thus lack access to paid leave, employer-provided health insurance and unemployment insurance.

Lawmakers recognizing those financial insecurities and the health risk are demanding labor protections for such workers.

“In these uncertain times, we need to act to protect all workers, especially those who don’t have access to unemployment insurance assistance,” a group of Washington state legislators urged their counterparts in Washington, D.C., this week.

“These workers include those considered by employers to be independent contractors in the gig economy and those who are self-employed. We are hearing from these workers about the economic difficulties caused by the coronavirus pandemic,” the Washington state legislators wrote. “This threatens their livelihoods and the strength of the broader economy.”

The pandemic has caused a boost in hiring at some companies to help meet the demand for food deliveries. Online grocery service Instacart announced plans to hire 300,000 workers in North America over the next three months, and Amazon and Walmart said they are hiring 100,000 and 150,000 workers, respectively.

The workers who take those roles will join the millions of Americans who depend on gig economy jobs as their primary source of income, but for those who are independent contractors, their employers largely won’t be paying into states’ unemployment insurance funds on their behalf.

The Washington state lawmakers urged their congressional delegation to work with the Trump administration to ensure that more Americans gain access to unemployment insurance, even if they don’t meet some of the standard eligibility requirements.

U.S. Sen. Mitt Romney, R-Utah, has also publicly called for broadening unemployment insurance eligibility to include independent contractors.

Veena Dubal, an associate professor at the University of California, Hastings College of the Law, told Law360 the pandemic underscores the problem with work that is unprotected, saying it is devastating workers across the country.

Lawmakers seeing people trapped in “really desperate situations” have started to call for basic protections for gig workers, Dubal said.

In California, Assemblywoman Lorena Gonzalez, who authored the state’s 2019 landmark bill Assembly Bill 5 extending employee classification status to workers in the gig economy, has called for action at both the federal and state level.

“Gig workers are on the frontlines of serving our communities during this crisis,” Gonzalez said.

Gonzalez is urging Congress not to concede to the demands of corporations “exploiting the COVID-19 pandemic to exempt themselves from existing employer obligations under state and federal law that require them to pay into unemployment insurance, Medicare, Social Security, and provide minimum wage and overtime pay, paid sick days, paid disability leave, and workers’ compensation for their workers.”

Meanwhile, she urged California’s Labor and Workforce Development Agency to “immediately provide” unemployment benefits to workers “misclassified” as independent contractors.

Also in the Golden State, San Francisco legislators called this week for enforcement of A.B. 5 to ensure that gig economy companies are meeting their legal obligations to workers.

But Uber and Lyft, whose drivers have had trouble finding work as people stay confined to their homes, argue that the law doesn’t apply to those workers.

Uber’s CEO urged President Donald Trump in a letter this week to embrace a “third way” and create a new category of workers between employees and independent contractors.

A Lyft spokesperson countered the San Francisco lawmakers’ proposed resolution, arguing that ride-hailing companies, also known as transportation network companies, are delivering essential services during the pandemic and that requiring them to reclassify drivers as employees now would threaten to interrupt crucial services.

“Attempting to force TNCs to adopt an employment model in the midst of this crisis would result in the widespread elimination of work for hundreds of thousands and the immediate interruption of essential services for vulnerable populations. It will hurt drivers and at-risk communities at a time when they need our services most," Lyft spokesperson Julie Wood said in a statement Tuesday.

Dubal said that in California, the governor needs to enforce state law. While some gig workers are completely out of work, other gig workers who are doing deliveries are being overworked, lack sufficient access to hand sanitizers and “are really putting their own bodies on the line” right now.

In terms of sick pay, some gig economy platforms have started rolling out basic benefits for independent contractors amid lawmakers' appeals.

Instacart announced that all of its in-store shoppers now have access to sick pay and that in-store shoppers and full-service shoppers, who deliver groceries, can receive up to 14 days of pay if they are diagnosed with COVID-19 or if they are “placed in individual mandatory isolation or quarantine as directed by a local, state, or public health authority.”

Lyft, Uber, Amazon, Caviar and Doordash all announced similar benefits in recent weeks for workers that they have classified as independent contractors.

And help could still be coming at the federal level, said Rebecca Smith of the National Employment Law Project, pointing to the Providing Americans Insured Days of Leave Act. The bill would provide independent contractors nationwide with two weeks of federally funded paid sick leave during the COVID-19 crisis and employer-funded paid sick days after 2021.

Overall, Smith said, the pandemic has exposed “gaping holes in our country’s social benefits” and the “employer practices and policy gaps that leave millions of America’s workers — and their families and communities — at risk of grave illness and financial ruin.”

--Editing by Aaron Pelc and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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