The gig-economy must protect its workers during the pandemic.

A RESPONSE TO 3/30/2020 BUFFALO NEWS ARTICLE “Is it Really a Strike if Instacart Workers Aren’t Employees?”

Rampant employee misclassification in the gig-economy industry creates an environment that encourages workplace violations and abuses. While these “progressive” companies earn billions of dollars in profits each year, it is the “independent contractors,” many of whom earn less than minimum wage, who shoulder the brunt of the work without adequate compensation. These workers, at the very least, deserve the protections afforded to all classified as employees in this country. This idea that you can “be your own boss” is frequently a far cry from reality for many gig-economy workers who expect autonomy but then endure significant employer control but receive no employee protections required by Federal and State laws. These abuses were unregulated for years, but legislation (in states like California) and recent judicial precedent in the State of New York are finally foreshadowing a massive and necessary overhaul and regulation of the gig-economy industry.

The Court of Appeals of the State of New York, which is the highest court in the State of New York, just last week found that workers for Postmates, a gig-economy industry food delivery service, had misclassified all of its workers as independent contractors in the State of New York for the purposes of New York State unemployment insurance contributions. Matter of Vega, No. 13, 2020 WL 145612 (N.Y. Mar. 26, 2020). The Court of Appeals, I think, is foreshadowing a new scheme of laws governing the gig-economy industry in the State of New York. Although it had the opportunity to do so in the case, the Court declined to devise a new test for analyzing whether a worker is an employee or independent contractor under the guise of the gig-economy industry and specifically noted “…overhauling a test ‘is not a task to which courts are well suited,’ and ‘is a policy question best left to the legislature.” Id. at n. 2. An effort is already underway for New York to pass gig-economy industry worker protection laws similar to those in California.

The fact is, an article entitled “Is it Really a Strike if Instacart Workers Aren’t Employees?,” completely minimizes the worker abuses in the gig-economy industry and enables gig-economy companies to continue to ignore their obligation to protect workers on the front-lines of the COVID-19 pandemic. In saying this, I am not offering any conclusion that Instacart misclassifies its employees or accusing Instacart of anything whatsoever. That determination is, and has been, left to the Courts for the last half decade. For example: in March of 2017, Instacart settled a nationwide employee misclassification lawsuit for 4.6 million dollars; in October of 2019, Instacart settled an employee misclassification lawsuit in California for 11 Million Dollars; and as recently as November of 2019, a still-pending employee misclassification lawsuit was filed against Instacart in Illinois.

Again, I am not reaching any conclusion or accusing Instacart of anything in this OP-ED, however, if the quotes in the Buffalo News article are true, it should sound the alarm on worker abuses during the pandemic and not focus on discourse on how “independent contractors” are not employees. The Fair Labor Standards Act and the New York Labor Law exist to protect workers from abuses like abhorrent working conditions, minimum wage violations, and overtime

violations. The article quotes the Gig Workers Collective as noting “…the average pay per order is well under $10.00.” Respectfully, that is likely less than minimum wage and could be a violation of both Federal and State wage and hour laws, if the worker is determined to be an employee. The article goes on to quote an “independent contractor” named Katie Lane, who notes she is cashing in on working full-time for Instacart during the COVID-19 pandemic. The fact remains that, even though Ms. Lane is doing well as an independent contractor, she would be doing a whole lot better if she had the protections of an employee, including the ability to earn overtime wages, be reimbursed for mileage, obtain the benefits and protections of the workers’ compensation law, and have O.S.H.A. oversight of her working conditions. The article notes Instacart workers decided to strike after weeks of being denied hand sanitizer and increased compensation. Grocery delivery is proving to be a vital and essential service in our nation’s time of crisis. Furthermore, the gig-economy is a fantastic resource for our economy and one industry that should be flourishing during the crisis.

The least, the very least we can do to thank the heroes risking their health so we can feed our families is to provide them with the same protections afforded to all classified as employees in this country.

If you feel as if you have been misclassified  by your employer in the Gig-Economy, contact Sam Alba at Friedman & Ranzenhofer, PC today.

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