I. INTRODUCTION

I. INTRODUCTION
1. Table of Contents

I. INTRODUCTION

Gig workers have been on the frontlines of the coronavirus pandemic, providing essential services like grocery shopping, transportation, and food delivery. Yet many encountered difficulties because they lacked protective equipment, had neither benefits or sick days, and would likely not be able to receive worker’s compensation if they became ill. ¹ Gig workers also encountered difficult situations with the customers they were helping to serve. For example, a Lyft driver wrote about his experiences, noting that many of the riders refused to wear masks, and in fact resented him for attempting to enforce Lyft’s safety rules.² Some of these passengers were too drunk to drive themselves, and did not seem to have the coordination to put on a mask.³ Other passengers were capable of following the rules, yet felt that the pandemic was a hoax or that the mask rules did not apply to them. Some drivers threw up their hands and gave up on masks because they needed the income so desperately; but as they did so, they knew they were taking risks with their health. ⁴

Indeed, that particular gamble has sometimes led to tragic results. At the beginning of the pandemic, Uber driver Khalid Zayyid, who used to work almost eighty hours per week on the platform, decided to stay close to home because of his pre-existing health conditions.⁵ But as the

¹ Gig Workers Face the Spread of the New Coronavirus with No Safety Net, WASH. POST (Feb. 29 2020), https://www.washingtonpost.com/technology/2020/02/29/gig-workers-face-spreadnew-coronavirus-with-no-safety-net/.

² Peter Jakubowicz, Diary of a Lyft Driver during COVID: “He says he’s not wearing a mask to ride in a car,” THE GUARDIAN, (Nov. 19, 2020), https://www.theguardian.com/lifeandstyle/2020/nov/19/diary-lyft-driver-covid-coronavirus.

³ Id. (recounting an instance in which a drunken passenger tried to use a package of cigarettes as mask and other passengers wore children’s masks, not covering their faces and mouths).

⁴ Id. See also Kate Conger et al., Pandemic Erodes Gig Economy Work, N.Y. TIMES (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/technology/gig-economy-pandemic.html (noting difficulty faced by rideshare drivers due to a lack of tourism and airplane flights).

⁵Shauna Hussain, This Uber Driver Died of COVID-19, L.A. TIMES, Nov. 1, 2020, https://www.latimes.com/business/technology/story/2020-11-01/prop-22-uber-driver-covid-19-death-benefits-workers-comp.

months went by, and bills began to accumulate, Zayyid returned to driving for Uber. ⁶ Zayyid told his family about riders who refused to wear masks. Just a week after returning to work, tragically Zayyid fell ill with COVID-19 and died shortly thereafter.⁷ Uber claimed that since Zayyid was an independent contractor, no worker’s compensation or death benefits would be available to his family. In response, activists held a candelight vigil outside of Uber’s San Francisco corporate headquarters to protest the deaths of Khalid Zayyid and other rideshare drivers from COVID-19. ⁸

During the coronavirus pandemic approximately forty percent of U.S. workers shifted from in-person work to working remotely from home.⁹ But many “frontline” jobs could not be done remotely. That necessary component of public contact has led to the risk of exposure for these workers.¹⁰ Thousands of healthcare workers have been sickened and died.¹¹ Grocery store clerks and cashiers have found themselves in close contact with the public, and they too have

⁶ Id.

⁷ Id.

⁸ Activists hold candlelit vigil outside Uber HQ for delivery drivers who died during the pandemic, RT (Dec. 23, 2020), https://www.rt.com/news/510530-activists-vigil-delivery-driverscovid/. See also Dugan Arnett & Nestor Ramos, Against this Enemy, Youth Wasn’t Enough; Friends and Family Aren’t Sure Where Riley Rumrill Contracted the Virus that Killed Him, BOSTON GLOBE (Apr. 2, 2020) (recounting story of 31-year-old Uber driver who died of COVID).

⁹ May Wong, *Stanford Research Provides a Snapshot of a New Working-from-Home Economy, *STANFORD NEWS (June 29, 2020), https://news.stanford.edu/2020/06/29/snapshot-new-workinghome-economy/ (quoting Stanford economist David Bloom, who estimated over forty-two percent of the country’s workers transitioned to remote work during the pandemic).

¹⁰ James J. Brudney, Forsaken Heroes: COVID-19 and Frontline Essential Workers, 48 FORDHAM URB. L.J. 1, 2 (2020) (recounting instances of grocery store workers, bus drivers, and meatpacking workers becoming ill from COVID-19).

¹¹ Lost on the Frontline: Thousands of US Healthcare Workers Have Died Fighting COVID-19, THE GUARDIAN (Feb. 10, 2021), https://www.theguardian.com/us-news/nginteractive/2020/dec/22/lost-on-the-frontline-our-findings-to-date (counting 3,500 deaths from COVID-19 and noting that nurses were especially impacted).

fallen ill.¹² Cleaners,¹³ bus drivers,¹⁴ and nursing home attendants¹⁵ have all risked their health to complete their work. And workers in the meatpacking industry, forced to share close quarters with each other have resulted in contagion and worker death, while the Occupational Safety and Health Administration (OSHA) was largely absent in enforcing workplace safety rules. ¹⁶ Even more shockingly, supervisors and managers at one meatpacking plant organized a winner-take-all betting pool to wager on how many employees would catch COVID-19.¹⁷

And being present, in person, was a requirement for many gig work jobs too. Whether it was grocery shopping for Instacart, delivering food and restaurant meals for DoorDash, or picking up and delivering packages for Shipt, gig workers kept showing up and working hard to make sure that meals, supplies, and groceries got to the people who needed them. ¹⁸ In fact, many gig platforms were busier than ever and many gig workers were working even longer

¹² See, e.g. Brittany Shammas & Hannah Knowles, A Trader Joe’s Employee Called for Stronger Coronavirus Measures. The Company Fired Him, WASH. POST. (Feb. 28, 2021), https://www.washingtonpost.com/business/2021/02/28/trader-joes-fired-employeecoronavirus/?utm_campaign=wp_main&utm_medium=social&utm_source=facebook&fbclid=IwAR0BTl4TogOY9U6_oGWjZmwtx0kR7wvks4BlU0ms7kd7ltDESo9I3jbL3MQ; Russell Redman, UFCW: Over 11,500 Grocery Workers Affected in First 100 Days of Pandemic, SUPERMARKET NEWS (June 26, 2020) (reporting that UFCW union reported that 82 grocery store clerks had died from COVID-19).

¹³ See e.g. Marianna Brady, Coronavirus: Are Hospital Cleaners Forgotten Heroes in this Crisis, BBC News, (April 20, 2020), https://www.bbc.com/news/world-us-canada-52359101; Pat EatonRobb, Cleaners risk health to work during pandemic, then lose jobs, AP NEWS (May 1, 2020).

¹⁴ See, e.g. Michael Levinson, 11 Days After Fuming About a Coughing Passenger, a Bus Driver Died from the Coronavirus, N.Y. TIMES, (April 4, 2020), https://www.nytimes.com/2020/04/04/us/detroit-bus-driver-coronavirus.html; Kristen Griffith, *“We can’t drive a school bus virtually,” Caroll County Bus Drivers Express Health, Safety Concerns, *CAROLL COUNTY T., Jan. 6, 2021.

¹⁵ See, e.g. Tanya Lewis, Nursing Home Workers Had One of the Deadliest Jobs of 2020, SCIENTIFIC AMER., (Feb. 18, 2021), https://www.scientificamerican.com/article/nursing-homeworkers-had-one-of-the-deadliest-jobs-of-2020/; Nursing Home Workers Risk Health, Lives During Pandemic, WASH. POST, Jun. 29, 2020.

¹⁶ Many Say OSHA Not Protecting Workers during COVID-19 Pandemic, NPR HEALTH (July 4, 2020), https://www.npr.org/2020/07/04/887239204/many-say-osha-not-protecting-workersduring-covid-19-pandemic; See also Emily A. Benfer et al, Health Justice Strategies to Combat the Pandemic: Eliminating Discrimination, Poverty, and Health Disparities During and After COVID-19, 19 YALE J. HEALTH POL’Y L. & ETHICS 122, 146 (2020).

¹⁷ Laurel Wamsley, Tyson Foods Fires 7 Plant Managers Over Betting Ring on Workers Getting COVID-19, NPR (Dec. 16, 2020), https://www.npr.org/sections/coronavirus-liveupdates/2020/12/16/947275866/tyson-foods-fires-7-plant-managers-over-betting-ring-onworkers-getting-covid-19; Joshua Rhett Miller,* Tyson Foods Manager Fired for COVID Betting Pool Calls it “Something fun,”* N.Y. POST (Dec. 29, 2020), https://nypost.com/2020/12/29/firedtyson-manager-calls-covid-pool-simply-something-fun/.

¹⁸ Michelle Cheng, How the Pandemic Made Instacart “Essential,” QUARTZ (Dec. 5 2020), https://qz.com/1940943/how-instacart-became-essential-in-the-pandemic/.

hours. ¹⁹ Instacart hired over 300,000 workers to handle the increased business that they saw on the platform.²⁰ Rideshare drivers, on the other hand, sometimes struggled. Although demand was up because people avoided public transportation, on the other people were not traveling by air nearly as much and so the mainstay of providing rides to and from the airport were no longer as much in demand. During the pandemic, gig work positions were considered “essential work” under state and federal guidelines, and as such the gig workers were labeled “essential workers.”²¹

Similar stories have played out around the world. Chinese delivery drivers were initially hailed as heroes for their role in helping to maintain a quarantine area around Wuhan.²² As the virus spread around the world, however, gig workers delivering food and necessary supplies began to feel increasingly vulnerable. French delivery workers on the UberEats platform noted that the company offered additional promotions that may have encouraged multiple trips and risked violating lockdown orders.²³ Between that and a lack of personal protective equipment, the gig delivery drivers complained that they were being turned into “cannon fodder.”²⁴ A report

¹⁹ Yuliya Chernova, The Coronavirus Pandemic – Making It Work: Gig Worker Balances Big Paydays Against Risks, WALL ST. J., Mar. 21, 2020.

²⁰ Alexandra Sternlicht, Instacart Wants to Hire 3000,000 Shoppers to Help Meet Coronavirus Demand, FORBES (Mar. 23, 2020), https://www.forbes.com/sites/alexandrasternlicht/2020/03/23/instacart-wants-to-hire-300000- shoppers-to-help-meet-coronavirus-demand/?sh=69ecf5672213. During the initial lockdowns of March and April 2020, the pandemic and the highly contagious nature of the coronavirus turned simple, everyday tasks, like grocery shopping, into a difficult ordeal. Rather than worry about exposure and contagion, customers flocked to grocery delivery services, mailed meal plans, and restaurant meal delivery. Restaurants, facing spacing and capacity restrictions on indoor dining, turned to curbside pickup and various delivery services to continue their operations. And in turn, customers turned to on-demand platforms to delivery these pre-made meals and prepared foods. Platforms, including Uber Eats, DoorDash, and Grubhub, faced an increasing demand for their services. Gig shoppers at various other stores saw the need for their services rise and on-demand transactions facilitated many purchases that kept people supplied and the U.S. economy running.

²¹ See Part III, infra; See also U.S. DEP’T OF HOMELAND SEC., CYBERSEC. & INFRASTRUCTURE SEC. AGENCY, ADVISORY MEMORANDUM ON IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS DURING COVID-19 RESPONSE (May 19, 2020), https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential_Critical_Infrastructure_Workers_1.pdf [hereinafter IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS] (defining essential workers).

²² Charlie Campbell, These Delivery Drivers are Risking Their Health to Keep China Running During the Coronavirus Epidemic, TIME (Mar. 16, 2020), https://time.com/5803803/chinadelivery-driver-ecommerce-covid19/.

²³ Francine Aizicovici, “On est de la chair a canon”: les livreurs de repas a domicile inquiets face au coronavirus, LE MONDE (Mar. 19, 2020), https://www.lemonde.fr/economie/article/2020/03/19/coronavirus-on-est-de-la-chair-a-canon-sinsurge-maxime-livreur-a-velo_6033665_3234.html.

²⁴ Elisa Braun, et al., Coronavirus Pandemic Leaves Gig Economy Workers Exposed, POLITICO, (Mar. 19, 2020), https://www.politico.eu/article/coronavirus-pandemic-leaves-gig-economyworkers-exposed/.

by Sydney, Australia’s Centre for Work Health and Safety noted that gig workers were often in serious traffic accidents, feared to report dangerous conditions, and received only limited safety help from the platforms they worked for during the pandemic.²⁵ South Korean delivery and gig workers have literally worn themselves out, with a dozen dying on the job from long hours and exhaustion, a phenomena known as gwarosa, precipitated by the increase in deliveries during the pandemic.²⁶ The World Economic Forum reported that over 70 percent of gig workers felt abandoned by their platforms, and were unhappy with the safety measures and support that were offered to them.²⁷ Other gig workers felt the pressure to “work sick”²⁸ since platforms only pay workers when the task or gig is completed, not a salary that allows for sick days.

This is what I am term the “essential worker paradox.” On the one hand, the labor of gig workers had been recognized as being absolutely critical during the pandemic. On the other hand, gig workers have been treated by the law as outside the bounds of employment protection. Due to the nuances of the law surrounding employment classification, gig workers have been kept from employment status and its protections, including minimum wage, the right to join a union, and basic statutory benefits. ²⁹ The misclassification issues trace back to the nature and design of computer-intermediated work and how it has not been recognized as true employment. ³⁰ The stark difference in treatment between gig workers and regular employees was unfair before the pandemic, but in light of gig workers’ tremendous sacrifices during the coronavirus pandemic, the differential treatment now is indefensible. Indeed, with so many full-time employees using apps and platforms to help them accomplish their work, the distinctions

²⁵ Tom Rabe, “We have no protection,”: *Abuse, dangerous conditions beset Sydney’s Gig Economy, *THE SYDNEY MORNING HERALD (Nov. 10, 2020), https://www.smh.com.au/national/nsw/we-have-no-protection-abuse-dangerous-conditionsbeset-sydney-s-gig-economy-20201109-p56cxy.html.

²⁶ Choe Sang-Hun, Delivery Workers in South Korea Say They’re Dying of “Overwork,” N.Y. TIMES, Dec. 15, 2020 (noting that on-demand couriers have been excluded from the protection of the laws and that businesses and customers demand “bullet speed”). See also Harold Thibault, “C’est sans fin, je suis vraiment epuise,”: en Coree du Sud, des livreurs meurent litteralement de surmenage, LE MONDE (Dec. 1, 2020), https://www.lemonde.fr/economie/article/2020/12/01/cest-sans-fin-je-suis-vraiment-epuise-le-surmenage-un-risque-majeur-pour-les-livreurs-sudcoreens_6061716_3234.html.

²⁷ Josephine Moulds, Gig workers among the hardest hit by coronavirus pandemic, WORLD ECONOMIC FORUM, (Apr. 21, 2020), https://www.weforum.org/agenda/2020/04/gig-workershardest-hit-coronavirus-pandemic/.

²⁸ Naomi Ishisaka, Gig workers fall through the public health safety net as coronavirus spreads in Washington, SEATTLE TIMES, (Mar. 9, 2020), https://www.seattletimes.com/seattle-news/gigworkers-fall-through-the-public-health-safety-net-as-covid-19-spreads/.

²⁹ Miriam A. Cherry, Beyond Misclassification: The Digital Transformation of Work, 37 COMP. LAB. L. & POL’Y J. 577, 581 (2016).

³⁰ Juan Carlos Alvarez de la Vega, et al., The Gig Economy in Times of COVID-19: Designing for Gig Workers’ Needs, Microsoft Research Position Paper, MICROSOFT RESEARCH SYMPOSIUM ON THE NEW FUTURE OF WORK, (Aug. 5-7, 2020), https://www.microsoft.com/enus/research/uploads/prod/2020/07/NFW-Alvarez-de-la-Vega-et-al.pdf (noting that the issue may be one of app and computer design, but that programmers should also be designing software not just for companies or customers, but also to look out for the interests of gig workers).

and categories make even less sense now. Indeed, for the last decade, in jurisdictions around the world, gig workers have been suing to claim employee status.³¹ Paid by the task, and managed by algorithms that can automatically deactivate an account, gig employment is amongst the most precarious types of work in the U.S. economy.³² With no job security, and in fact automatic deactivation from many apps, and no rights under employment law, and a lack of benefits, gig workers have long been marginalized by the view that their work exists only for the sake of convenience, that it is a side-hustle, and in some instances completely invisible, by the very nature of the tasks that these workers do. ³³

But the meal delivery driver, the on-demand grocery shopper, and the on-demand package deliverer are not on the margins anymore – the services they provide have become essential to people’s lives. ³⁴ There seems to have been an accompanying shift along with the risks that gig workers have taken, which has come with very specific benefits, like pandemic unemployment assistance and sick days, which were not available to gig workers before. As such, the events of the pandemic have moved—at least some—gig workers closer to parity with traditional employees. Such a move toward parity with employees is long overdue. This Article will argue that because of their heroic efforts during the pandemic, we should resolve the essential worker paradox in favor of gig worker’s employee status. There is no principled distinction that can be drawn between these hard working gig workers and other employees.

This Article proceeds in five parts, following this Introduction. Part II will examine some of the misconceptions around gig work and that have held back the campaign to be recognized as employees. Then, Part III will discuss the changing legal landscape that gig workers have faced in attaining employee status. Primarily this part focuses on the Noember 3, 2020 Proposition 22 vote in California and the setback it represented for gig workers in that state. Then, Part IV examines the role of gig workers as essential workers in the pandemic. Finally, Part V and the Conclusion set forth the case for gig workers to attain parity with employees. Gig workers have risked their health and worked hard to keep others safe during this pandemic. They have earned the same basic rights and protections as employees. But first, it is important to see how and why the gig economy found itself in this predicament in the first place.

I. INTRODUCTION

Table of Contents