IV. Gig Workers as Essential Workers

IV. Gig Workers as Essential Workers

IV. Gig Workers as Essential Workers

The view of gig work as marginal and unimportant certainly has changed during the pandemic. They put themselves at increased risk of illness so that others could receive grocery deliveries, prepared meals, medications, packages, and other essential items. Labeled “essential workers” by the law, gig workers continued to show up and work in person.¹⁴⁸ This Section covers the “essential worker” designation: the origins of the term, who qualifies as an essential worker under state and federal guidelines, and what this designation has meant for gig workers. Further, this section analyzes the CARES Act and related legislation, as those laws have extended significant benefits to gig workers such as temporary unemployment and paid sick leave. Yet, there are significant problems that have arisen with these programs, which stem at least in part because of the ambiguity surrounding gig worker employment status.

A. Essential Workers and Essential Work

Recent estimates from the Brookings Institute found that 50 million U.S. workers qualified as frontline or essential workers under federal and state pandemic guidelines. ¹⁴⁹ Some of the other results from this report are surprising. For example, when looking at overall earnings, frontline workers earn lower wages than average. ¹⁵⁰ In addition, many people think of “frontline” workers as having a public presence, but many of these jobs are actually largely invisible to the end user or customer. For example, cleaners that work to sanitize office buildings are crucial to make them safe working environments, yet few acknowledge the importance of that role. A different study by the Economic Policy Institute noted that minority groups are overrepresented among essential workers. ¹⁵¹

¹⁴⁸ Faiz Siddiqui, Gig Workers Face Arrest and Charges While Delivering during Pandemic and Curfews, WASH. POST, June 17, 2020, https://www.washingtonpost.com/technology/2020/06/17/gig-workers-arrests-protests-pandemic/ (noting in completing deliveries during lockdowns, gig workers for Caviar and Uber Eats took the risk of being hassled by law enforcement).

¹⁴⁹ Adie Tomer & Joseph W. Kane, To Protect Frontline Workers During and After COVID-19, We Must Fist Define Who They Are, BROOKINGS INSTITUTE REPORT, (June 10, 2020), https://www.brookings.edu/research/to-protect-frontline-workers-during-and-after-covid-19-wemust-define-who-they-are/.

¹⁵⁰ *Id. *

¹⁵¹ Celine McNicholas & Margaret Poydock, Who Are Essential Workers?, ECONOMIC POLICY INSTITUTE’S WORKING ECONOMICS BLOG, (May 19, 2020), https://www.epi.org/blog/who-areessential-workers-a-comprehensive-look-at-their-wages-demographics-and-unionization-rates/.

We know some basics about who the essential workers are. But where did the term “essential worker” come from, and how is that defined in modern day parlance? This Section hopes to provide at least partial answers to these questions.

1. Historical Background and Definitions

Before the pandemic, U.S. labor and employment law did not distinguish between essential versus non-essential work per se. Employment law in the U.S. is more deregulated than in other parts of the world, and relatively weights or value of labor is typically determined by the market. As such, there has not typically been an attempt to apportion protections based on the importance of the work being done. It is true that certain occupational categories, such as those in the mining or the nuclear power industry, are more highly regulated because of known safety hazards to workers in those industries.

While the term “essential worker” seemed to have essentially sprung from nowhere during the start of the 2020 pandemic, that may not be entirely accurate. The concept of essential work did exist in the past, but only seems to have come to the forefront during times of war or disease. ¹⁵² In early modern Europe, professional doctors and skilled workers often fled the crowded cities that were often the epicenters of epidemics. But much work still needed to be done in those cities, especially work diagnosing disease, caring for patients, enforcing quarantines, and other critical tasks for maintaining public health. ¹⁵³ Many of the workers who handled these tasks were essential pressed into this service out of economic necessity. ¹⁵⁴ Some of those who worked in these essential capacities were elderly women, who typically would not have been given these occupational opportunities, but for whom the rules and strictures of society were bent to allow their workforce participation.¹⁵⁵ Those who were recipients of charity and pensions, those who used to work in businesses that were shuttered, and servants left to fend for themselves, all worked during pandemics, often at dangerously risky tasks.¹⁵⁶ They did so under various degrees of economic duress, and indeed, it was the poor, then and now, who shouldered the largest share of the work while putting their own lives and health at risk.

Moving into the modern industrial age, cycles of conflict have also given rise to work classification systems that attempted to prioritize essential industries. For example, steel, lumber, and coal were seen as essential industries during World War I because of the need for

¹⁵² Indeed, the Black Death and its high mortality rate actually gave rise to employment legislation. Employers in Britain requested the crown institute a cap on wages, because of the acute shortage of labor after the pandemic. Such regulation was at odds with market forces and thus was unsuccessful. See Stewart Schwab, Predicting the Future of Employment Law: Reflecting or Refracting Market Forces, 76 IND. L.J. 29 (2001).

¹⁵³ Richelle Munkhoff, Searchers of the Dead: Authority, Marginality, and the Interpretation of the Plague in England, 1574-1665, 11(1) GENDER & HISTORY 1 (1999).

¹⁵⁴ Kevin Siena, Epidemics and “Essential Work” in Early Modern Europe, HISTORY & POLICY BLOG, (March 25, 2020), http://www.historyandpolicy.org/opinion-articles/articles/epidemicsand-essential-work-in-early-modern-europe.

¹⁵⁵ Munkhoff, supra note [ ].

¹⁵⁶ GIULIA CALVI, HISTORIES OF A PLAGUE YEAR: THE SOCIAL AND THE IMAGINARY IN BAROQUE FLORENCE (TRANS. DARIO BIOCCA & BRYANT T. RAGAN JR. 1989).

particular commodities to aid in the war effort. ¹⁵⁷ Later, in the lead-up to the U.S. entry into World War II, President Franklin D. Roosevelt created a War Manpower Commission which recruited labor for war and essential civilian industries and trained workers for jobs related to the war effort. Certain industries and manufacturing concerns were labeled “essential activities” by the Commission. ¹⁵⁸ In 1943 the Commission labeled particular job titles and areas as “critical occupations.”¹⁵⁹ The demand for such essential workers would pull in groups that had previously been excluded from opportunities in the labor market, often because of widespread employment discrimination against women and people of color. ¹⁶⁰ The popularized images of Rosie the Riveter emphasized that women’s work was needed to maintain the war effort and to sustain domestic production.¹⁶¹

In all these previous efforts at definitions, the idea of work as being “essential” meant that the work was critical, important, or crucial to the functioning of society. Despite the risks that might be present to the individual worker’s health or safety, this work needed to continue. Another way of thinking about essential work is that because of the risk involved, too few people want to staff those jobs. And it ends up being those who have little choice, due to economic necessity or financial precarity, who typically comprise the bulk of essential workers. With this history and background on the terminology around essential work and essential workers, the next Section turns to the definitions of essential worker under the current law.

2. Federal Government Definitions of “Essential Worker”

The 2020 CISA Guidance (“the Guidance”) for work in the pandemic covers broad categories of different occupations and industries that are critical for the continued functioning of society.¹⁶² Key among these definitions for our purposes is that gig work comes within the definitions provided by the Guidance. For example, the Guidance includes “restaurant and quick serve food operations, including … food prep centers, carryout, and delivery food workers” in its definition of essential businesses. ¹⁶³

In addition, the CISA guidance mentions “workers supporting personal and commercial

¹⁵⁷* Essential Workers – Definition, History, and Importance,* NATL. PUB. RADIO, Sept. 25, 2020, https://www.wshu.org/post/essential-workers-definition-history-and-importance#stream/0.

¹⁵⁸ War Manpower Commission, 8 (162) Federal Reg. 11420 (Aug. 17, 1943).

¹⁵⁹ Id.

¹⁶⁰ John J. Corson, The Labor Force: Its Recruitment and Training, 9:3 L. & CONTEMP. PROBS. 418 (Summer 1942) (noting previously underutilized sources of labor including that of women, racial minorities, youth, the imprisoned, and the disabled).

¹⁶¹ Kellie B. Gormly, Rosie the Riveter Gets Her Due 75 Years After the End of World War II, SMITHSONIAN MAG., (Dec. 8, 2020), https://www.smithsonianmag.com/smithsonianinstitution/rosie-riveter-gets-her-due-75-years-after-end-world-war-ii-180976474/.

¹⁶² 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]

¹⁶³Id.

transportation services including taxis, delivery services, vehicle rental services, [and] bicycle maintenance.” Finally, the CISA guidance includes “car-sharing services, and transportation network providers.”¹⁶⁴ Based on these definitions, gig work grocery shopping, food, meal, and restaurant delivery would all be considered “essential work” under the CISA guidance.¹⁶⁵

Importantly, the CISA guidance makes no distinction or divide between those who are performing this work under “employee” status and those who are performing it as independent contractors. The CISA definition was focused more on what work was critical in particular sectors of the economy to keep the population supplied with food and other necessities during lockdown periods. Rather than focusing on the business details and factors that might bring work within the ambit of “employment,” the CISA guidance focused more on the purpose of the work and how it might help with efforts to control the pandemic.

3. State Definitions of “Essential Worker” and Platform Definitions

In addition to the CISA guidelines, states have also adopted the term “essential worker” to help make determinations about business closures. Some states have used the same exact language as the federal CISA guidance. ¹⁶⁶ Other states, such as Alaska and Colorado, permitted and encouraged places of public accommodation, such as restaurants and bars, to offer food and beverage using only take-out and delivery as necessary.¹⁶⁷ Colorado also provided an exemption for transportation and infrastructure necessary to support critical business.¹⁶⁸ While these two state guidelines did not mention gig workers directly, their coverage and presence is implied. That is especially as platforms would be a key part of the infrastructure to support restaurants and to get meals delivered to restaurant patrons.

Still more states, such as Indiana, Hawaii, and California, have expressly mentioned gig work as included in their definitions of essential work. These states’ definitions mention “businesses that ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods or services to end users or through commercial channels,” “transportation network providers (such as Uber and Lyft),” and “employees supporting personal and commercial transportation services, including taxis, bicycle services, Transportation Network Companies, and delivery services including Delivery Network Companies.”¹⁶⁹

Apart from either federal, state, or municipal definitions, many on-demand platforms

¹⁶⁴ Id.

¹⁶⁵ Brudney, supra note [ ] at 2-3.

¹⁶⁶ For the definition in Texas, CITY OF AUSTIN, TEXAS, INFORMATION FOR BUSINESSES AND INDUSTRIES, https://www.austintexas.gov/department/information-businesses-and-industries (last visited Mar. 9, 2021). For the definition in Georgia, see GA. DEP’T OF ECON. DEV., GEORGIA’S STATEWIDE EXECUTIVE ORDER: GUIDELINES FOR BUSINESSES, https://www.georgia.org/covid19bizguide#critical (last visited Mar. 9, 2021).

¹⁶⁷ GOV. MICHAEL J. DUNLEAVY, STATE OF ALASKA, COVID-19 HEALTH MANDATE 3.1 (Mar. 17, 2020), https://gov.alaska.gov/wp-content/uploads/sites/2/03172020-SOA-COVID-19-HealthMandate-003.pdf.

¹⁶⁸ COLO. DEP’T OF PUB. HEALTH & ENV’T, FOURTH UPDATED PUBLIC HEALTH ORDER 20-24 IMPLEMENTING STAY AT HOME REQUIREMENTS (Apr. 9, 2020), https://cha.com/wpcontent/uploads/2020/04/Fourth-Updated-Public-Health-Order-Authorized-Business.pdf.

¹⁶⁹ https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf

themselves have viewed the services their workers provide as “critical” or “essential businesses.” In one letter to its “Dashers” (i.e. gig workers), the platform DoorDash notes that “Deliveries from restaurants and grocery stores have been deemed essential services in the following jurisdictions, meaning Dashers may continue to perform delivery services.”¹⁷⁰ Uber has similarly told its workers that they are “essential” and that in providing transportation, they are providing an “essential service.” Ultimately, the definitions of “essential worker” all emphasize the importance of the gig work being done during the pandemic. Like the federal guidance, none of these state definitions or directives mention the employee versus independent contractor distinction.

Even with its various formulations and definitions, most gig workers who work via app easily have fit into the definition “essential” workers during the 2020-2021 coronavirus pandemic. Defining work as “essential” means that it is “very important.” It means that the work is not a luxury or work for convenience, it is work that is done to help society survive a threat or a difficult time. In past definitions, a critical occupation might be something directly warrelated, but in other instances might actually mean one in which demand for labor far outstripped supply. These issues raise further questions. What types of work are seen as heroic, important, and valorized, and which forms of works are marginalized? What happens when these categories blur? We will return to these questions in Section V of the Article, which argues in favor of parity for gig workers based on these very definitions of essential work.

B. Legislative Protections for Gig Workers During the Pandemic

During the early stages of the pandemic, federal and state legislatures and administrative agencies across the United States acknowledged the essential nature of gig economy workers, issuing emergency regulatory interventions that conferred greater protection to gig economy workers. Most notably, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) granted gig workers federal unemployment benefits and related legislation granted some gig workers paid sick leave. ¹⁷¹ While the provisions in the CARES Act and related legislation moved gig workers toward the benefits that other employees currently receive as of right, it did not cover all the changes that need to be made. For example, gig workers have asked for increased supplies of personal protective equipment to keep themselves safe, ¹⁷² hazard pay,¹⁷³

¹⁷⁰ COVID-19: Dasher Exemption to Shelter-in-Place Orders Letter, DOORDASH, https://help.doordash.com/dashers/s/article/COVID-19-Dasher-Exemption-to-Shelter-in-placeOrders-Letter?language=en_US (last visited Mar. 9, 2021).

¹⁷¹ Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, tit. IV, §§ 4114-4120, 134 Stat. 281 (2020); See also Sean Ludwig, Coronavirus Aid, Relief, and Economic Security Act: What Small Businesses Need to Know, U.S. CHAMBER OF COM. (Mar. 27, 2020), https://www.uschamber.com/co/start/strategy/cares-act-small-business-guide.

¹⁷² See Megan Rose Dickey, Gig Workers Say They Are Struggling to Get Personal Protective Equipment from Companies,TECHCRUNCH (Apr. 16, 2020, 1:35 PM), https://tcrn.ch/2z7esl8.

¹⁷³ See Andrew Keshner, “Anybody Who Works at this Point Deserves Hazard Pay”: The Working Conditions that Led One Instacart Worker to Strike, MARKETWATCH (Apr. 2, 2020, 9:11 AM), https://www.marketwatch.com/story/is-this-batch-worth-me-going-to-this-store-andpossibly-bringing-home-covid-19-what-life-is-like-for-one-striking-instacart-worker-2020-04-01.

and supplies of disinfectants.¹⁷⁴ Some on-demand companies have met those safety and riskrelated requests voluntarily, while others only did so grudgingly or only in the face of protests or other collective action by gig workers. Even so, the changes in the CARES Act and in other related legislation have demonstrably improved working conditions for gig workers and brought them closer to the rights and benefits enjoyed by traditional employees.¹⁷⁵ This section will explore some of these pressing issues and how the CARES Act for the first time brought gig workers closer to parity with employees throughout the pandemic.

1. Unemployment Coverage for Gig Workers

In late March 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed by Congress and signed into law by then-President Trump with the purpose of providing economic assistance for American workers, families, and small businesses suffering due to the pandemic. ¹⁷⁶ In an unprecedented action, the CARES Act expressly granted gig workers unemployment benefits.¹⁷⁷ In the past, state unemployment statues had only applied to “employees.” Often when gig workers were deactivated from platforms, they were told that they were not eligible for unemployment benefits. In other circumstances, gig workers challenged these determinations, appealed the results, and won unemployment benefits.¹⁷⁸ These same problems of employment classification have resulted in uneven decisions about unemployment benefits.

Provisions within the CARES Act radically changed that dynamic. The provisions created additional funding for the Pandemic Unemployment Assistance (PUA) program, which made individuals who would ordinarily not qualify for regular unemployment compensation and are unable to continue working as a result of COVID-19, such as self-employed workers, independent

¹⁷⁴ See Alina Selyukh & Shannon Bond, Amazon, Instacart Grocery Delivery Workers Demand Coronavirus Protection and Pay, NAT’L PUB. RADIO (Mar. 30, 2020, 8:47 AM), https://www.npr.org/2020/03/30/823767492/amazon-instacart-grocery-delivery-workers-strikefor-coronavirus-protection-and-.

¹⁷⁵ Andrew J. Hawkins, Hundreds of Uber and Lyft drivers rally in San Francisco for employee protections, THE VERGE (Aug. 27, 2020, 5:37 PM), https://www.theverge.com/2019/8/27/20835658/uber-lyft-driver-rally-ab5-pete-buttigiegemployee-protections,

¹⁷⁶ The Treasury Department is Delivering COVID-19 Relief for All Americans, U.S. DEP’T OF THE TREASURY, https://home.treasury.gov/policy-issues/cares (last visited Mar. 10, 2021).

¹⁷⁷Sean Ludwig, Coronavirus Aid, Relief, and Economic Security Act: What Small Businesses Need to Know, U.S. CHAMBER OF COM. (Mar. 27, 2020), https://www.uschamber.com/co/start/strategy/cares-act-small-business-guide.

¹⁷⁸ Uber Technologies, Inc. v. Barbra Berwick, Case No: 11-46739 EK (2015). See also Sam Sanders, California Labor Commission Rules Uber Driver is an Employee, Not a Contractor, NAT’L. PUB. RADIO (June 17, 2015), https://www.npr.org/sections/thetwoway/2015/06/17/415262801/california-labor-commission-rules-uber-driver-is-an-employee-nota-contractor.

contractors, and gig workers, eligible for unemployment benefits.¹⁷⁹ The legislation as well as the U.S. Department of Labor’s guidance on the topic specifically use the term “gig workers” for the implementation of the PUA.¹⁸⁰ To qualify for PUA benefits, a gig worker would have to provide self-certification that they lost work directly because of the COVID-19 pandemic. Such scenarios of losing work directly because of coronavirus include, but are not limited to, a personal diagnosis of coronavirus, a household member’s diagnosis of coronavirus, responsibility for providing care for a family member with coronavirus, school closures related to coronavirus requiring the individual care for a child, and, most broadly, public health emergencies due to coronavirus that severely limit one’s ability to continue performing customary work activities or has forced one to suspend such activities.¹⁸¹

The CARES Act’s extension of unemployment benefits to gig workers was a groundbreaking acknowledgment of the importance of gig work. This would not have been a benefit that gig workers could have counted on prior to the pandemic. For some gig workers, who lost income because of temporary cutbacks on travel and transportation usage, the legislation was a helpful addition during a slow time at work. However, these unemployment benefits were temporary, and as described below, some gig workers had a difficult time accessing them.

2. Access to Paid Sick Leave

As part of the package of aid in the Families First Coronavirus Response Act (FFCRA), Congress passed the Emergency Paid Sick Leave Act.¹⁸² The Emergency Paid Sick Leave Act created specific expansions to help bridge the gap for workers who did not receive sick leave through their employers. ¹⁸³ These expansions covered situations where the employee became sick with COVID-19 symptoms, was exposed to COVID-19, or where the worker was caring for a sick family member.¹⁸⁴ In addition, some states, like Colorado and New York, have temporarily extended the reach of their paid sick leave structures.¹⁸⁵ The FFRCRA expansion expired on December 31, 2020, but employers may voluntarily decide to provide leave for their

¹⁷⁹ U.S. DEP’T OF LAB., EMP. & TRAINING ADMIN., UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 16-20 (Apr. 5, 2020), https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20.pdf, https://www.dol.gov/newsroom/releases/eta/eta20200405.

¹⁸⁰ *Id. *

¹⁸¹ U.S. DEP’T OF LAB., EMP. & TRAINING ADMIN., UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 16-20 (Apr. 5, 2020), https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20.pdf; Nicole Clark, Gig Workers Can Qualify for CARES ACT Unemployment Aid, BLOOMBERG LAW (May 6, 2020), https://news.bloomberglaw.com/daily-labor-report/insight-gigworkers-can-qualify-for-cares-act-unemployment-aid.

¹⁸² Families First Coronavirus Response Act, Pub. L. No. 116-127, § 1, 134 Stat. 178 (2020).

¹⁸³ Id., Division E.

¹⁸⁴ U.S. Department of Labor Wage and Hour Division, Families First Coronavirus Response Act: Questions and Answers, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#104.

¹⁸⁵ Shennan Harris and Lilah Sutphen, State Law Round-Up: Covid-19 State and Local Paid Sick Leave Law Developments (US), NATIONAL L. REV., Apr 21, 2020, https://www.natlawreview.com/article/state-law-round-covid-19-state-and-local-paid-sick-leavelaw-developments-us.

employees.¹⁸⁶ As of this writing, none of these extended measures have achieved any permanence, however.

The regulatory response about paid sick leave was important for many reasons during the pandemic. ¹⁸⁷ Public health agencies have long recommended when dealing with infectious diseases that workers stay home to avoid spreading illness to others in the workplace. For many workers, the ability to rest or self-isolate while sick is largely determined by their access to paid sick leave.¹⁸⁸ Among OECD countries, the United States is only one of two that does not provide its workers with universal access to paid sick leave.¹⁸⁹ A lack of paid sick leave negatively impacts public health. Studies have shown that workers who lack paid sick leave are 1.5 times more likely to go to work while they are contagious, mostly because either they cannot afford to stay at home or they are worried that there will be reprisals for taking time off. ¹⁹⁰

The other reason that the passage of the Emergency Paid Sick Leave Act was so significant is that, incredibly, only a minority of states currently mandate any paid sick leave for employees. ¹⁹¹ Currently only 13 states and Washington D.C. have enacted paid sick leave laws.¹⁹² The states that mandate paid sick leave include Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, Washington, Rhode Island, Maryland, New Jersey, Michigan, Nevada, and Maine. ¹⁹³ Some states, like New Jersey, started with individual cities and municipalities passing paid sick leave laws. ¹⁹⁴After Jersey City and Newark passed ordinances for paid sick time, that influenced other cities within the state to do the same. Eventually, this led to a statewide bill requiring New Jersey employers to provide paid sick time to their employees.¹⁹⁵ Maine was the most recent addition to the list, changing the law during the pandemic to require paid sick leave for employees.¹⁹⁶

Regardless of state minimum statutory mandates, many private employers voluntarily provide paid sick leave as an important benefit. From a practical perspective, that means that the

¹⁸⁶ U.S. Department of Labor Wage and Hour Division, Families First Coronavirus Response Act: Questions and Answers, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#104.

¹⁸⁷ Drew DeSilver, As coronavirus spreads, which U.W. workers have paid sick leave – and which don’t?, Pew Research Center, https://www.pewresearch.org/fact-tank/2020/03/12/ascoronavirus-spreads-which-u-s-workers-have-paid-sick-leave-and-which-dont/

¹⁸⁸ Erin Garrity, Guacamole is Extra but the Norovirus Comes Free: Implementing Paid Sick Days for American Workers, 58 B.C. L. REV. 703 (2017).

¹⁸⁹ Amy Raub et. al, *Paid Leave for Personal Illness: A Detailed Look at Approaches Across OECD Countries, *WORLD POLICY ANALYSIS CENTER (2018), https://www.worldpolicycenter.org/sites/default/files/WORLD%20Report%20-%20Personal%20Medical%20Leave%20OECD%20Country%20Approaches_0.pdf

¹⁹⁰ Heymann et. al, Protecting health during COVID-19 and beyond: A global examination of paid sick leave design in 193 countries, 15 GLOBAL PUBLIC HEALTH 925-934 (2020).

¹⁹¹ Id.

¹⁹² Paid Sick Leave, NAT’L CONF. OF STATE LEGISLATURES (July 21, 2020), https://www.ncsl.org/research/labor-and-employment/paid-sick-leave.aspx.

¹⁹³ *Id. *

¹⁹⁴ Kevin J. Skelly, Paid Sick Time Trend Continues, 3 N.J. EMP. L. LETTER 1 (2015).

¹⁹⁵* Id.*

¹⁹⁶ S. DOC. NO. 369, 129th Maine Legislature., Reg. Sess. (Me. 2019); 26 M.R.S. §637(7) (2019).

availability of paid sick leave varies by geography, occupation, size of employer, and geography.¹⁹⁷ Paid sick leave seems to more broadly cover workers in the top quarter of earnings, with around only 31% of people in the lowest-earning tenth having coverage. Another difference is between the public and private sector.¹⁹⁸ More government workers have access to paid sick leave than their private counterparts.

While this uneven coverage is problematic for both workers and society (from a public health perspective), gig workers are in an even more precarious position than most workers. This precarity arises because the state laws on sick leave discussed above will only apply to “employees.” Based on the gig work model, workers only earn money on platforms as they complete tasks; they are not provided benefits like paid time off or paid sick leave. As such those who rely on gig work as a source of primary income are often forced into an untenable choice between working sick and paying for necessities like food and shelter. ¹⁹⁹ Recently, the City of Seattle, Washington, passed laws that guaranteed workers (regardless of employment status) paid sick and safe days.²⁰⁰ Seattle’s municipal government chose to be expansive in their coverage so that regardless of rulings on the issue of employee status, gig workers would be entitled to paid sick leave.

3. Hazard Pay

In April of 2020, federal legislation was proposed to provide additional pay to essential workers. ²⁰¹ The idea behind hazard pay, or, “hero pay,” as some have referred to it, was to compensate frontline workers for the increased risk of contagion they would likely face on the job. However, the federal legislation on this subject failed to pass.²⁰² Nonetheless, some grocery stores and other businesses decided to pay an additional “hero” bonus of a few extra dollars per hour. Unions took up the cause of hazard pay, using it to push for wage increases. And some municipalities mandated an additional $2-4 per hour payment of hazard pay, with laws aimed at larger businesses that employed a critical mass of essential workers.²⁰³

But most hazard pay was a temporary measure. In the summer of 2020, many retail companies ended hazard pay and instead replaced it with a one-time bonus for essential

¹⁹⁷ Drew DeSilver, supra note.

¹⁹⁸ *Id. *

¹⁹⁹ Heymann, et al., supra note 190.

²⁰⁰ Gig Worker Paid Sick and Safe Time Ordinance, DOMESTIC WORKERS STANDARDS BD., SEATTLE.GOV, http://www.seattle.gov/laborstandards/ordinances/covid-19-gig-workerprotections-/gig-worker-paid-sick-and-safe-time-ordinance (last visited Mar. 10, 2021).

²⁰¹ Wayne Winegarden, Mandated Hero Pay Fails to Achieve Its Lofty Goals, FORBES, (Jan. 15, 2021, 10:15 AM), https://www.forbes.com/sites/waynewinegarden/2021/01/15/governmentmandated-hero-pay-fails-to-achieve-its-lofty-goals/?sh=511128383815.

²⁰² Id.

²⁰³ Nathaniel Meyersohn, These cities want to give grocery store workers hazard pay, CNN, (Feb. 3, 2021, 12:57 PM), https://www.cnn.com/2021/02/03/business/grocery-stores-hazard-payseattle-los-angeles/index.html Pandemic Hazard Pay: LA City Council committee votes to move forward with proposed emergency ordinance, ABC7, (Jan. 27, 2021), https://abc7.com/hazardpay-covid-pandemic-coronavirus/10073194/ (noting that law required grocery and pharmacy retailers with three hundred or more employees nationally or ten on any one site would be required to pay $5/hour in hazard pay).

workers. ²⁰⁴ And despite the fact that the pandemic continued on, some employers pushed back against hazard pay for frontline workers. For example, Kroger closed two of its grocery stores in Seattle, Washington, claiming that those closures were in response to the higher wages required as hazard pay. ²⁰⁵Meanwhile, many essential workers pointed to low wages and argued that they needed a higher pay scale to be compensated for their risk they were taking. However, just as in previous pandemics, those who kept working and taking risks were often those who were in the most marginal occupational and financial positions.²⁰⁶

C. Continuing Issues and Problems

Despite legislative extension of certain temporary employment rights to gig workers, some problems remain. The systems that would allow gig workers to access unemployment and sick leave were cobbled together rapidly, and many gig workers had trouble accessing their benefits. Other practices, like tip baiting, emerged during the pandemic and are part of a larger discussion of fair pay for work on digital platforms. While gig work companies have stepped up to address some of these issues, some problems remain. Most of these problems stem from the continued ambiguities about gig worker employment status.

1. Accessing Benefits

Although the PUA’s extended unemployment benefits have been a positive development for gig workers overall, some gig workers in particular reported difficulties accessing the PUA benefits.²⁰⁷ Part of the difficulty . Eligibility for the PUA program was generally the same across the nation, but the actual process of qualification, application, and disbursement were all administered at the state-level. ²⁰⁸ The split federal-state process meant that some state unemployment agencies required that an individual first file for traditional state unemployment compensation, receive a rejection letter, and then re-file a new claim with the state for the PUA program. ²⁰⁹ With unemployment systems already bogged down by claims during an extreme period of high unemployment, these kinds of burdensome bureaucratic systems created serious

²⁰⁴ Molly Kinder, et al.,* The COVID-19 Hazard continues, but the Hazard Pay Does Not: Why America’s Essential Workers Need a Raise,* BROOKINGS REPORT (Oct. 29, 2020), https://www.brookings.edu/research/the-covid-19-hazard-continues-but-the-hazard-pay-doesnot-why-americas-frontline-workers-need-a-raise/.

²⁰⁵ Nathaniel Meyershohn, Kroger will close more stores over hazard pay laws for workers, CNN, (Feb. 18, 2021, 3:10 PM), https://www.cnn.com/2021/02/17/business/kroger-closinggrocery-workers-hazard-pay/index.html.

²⁰⁶ Brudney, supra note 10.

²⁰⁷ See Dara Kerr, *Gig Workers with COVID-19 Symptoms Say It’s Hard to Get Sick Leave from Uber, Lyft, Instacart, *CNET (Mar. 26, 2020), https://www.cnet.com/features/gig-workers-withcovid-19-symptoms-say-its-hard-to-get-sick-leave-from-uber-lyft-instacart/.

²⁰⁸ https://news.bloomberglaw.com/daily-labor-report/insight-gig-workers-can-qualify-for-caresact-unemployment-aid

²⁰⁹ Id.

delays. ²¹⁰ In many states, gig workers complained that the system was slow, difficult to use, and unwieldy.²¹¹ Since many gig workers make less than minimum wage, this delay was a serious problem for many living paycheck-to-paycheck. Because of these financial pressures, some gig workers described the process of filing for unemployment as “nerve-wracking.”²¹² Another gig worker went further, describing the situation as “a terrible sort of Kafkaesque, bureaucratic nightmare,” after he tried to phone the unemployment office 600 times and received a busy signal every time he called. ²¹³

Although there were some problems with initial implementation and several months of delay, by mid-May 2020 at least 37 states were able to start distributing PUA payments to gig workers. But gig workers have reported ongoing problems with accessing these benefits even beyond May 2020. Laid-off or furloughed workers describe two hour waits on phone calls, only to have the call then drop, or email inboxes that just bounce back to the sender, unread. ²¹⁴ As mentioned earlier, part of the difficulty was no doubt attributable to the vast influx of new claims. But other delays were caused because traditionally gig workers and other independent workers were not listed in W-2 income tax reports, which generally are used by state unemployment agencies to determine eligibility for benefits. ²¹⁵ Outdated filing systems and old computer networks also contributed to delays, as well as the fact that during the pandemic there were a spate of fraudulent unemployment filings that needed to be investigated.²¹⁶ The Federal Bureau of Investigation noted that the pandemic brought a spike in fraudulent unemployment

²¹⁰ Rebecca Rainey, Millions of Gig Workers are Still Waiting for Unemployment Benefits, POLITICO, (April 30, 2020), https://www.politico.com/news/2020/04/30/millions-of-gig-workersare-still-waiting-for-unemployment-benefits-225844; Shannon Bond, “We Can’t take Your Call”: Uber Drivers, Other Gig Workers Struggle for Unemployment, NAT’L PUB. RADIO, (May 19, 2020), https://www.npr.org/2020/05/19/858410180/we-can-t-take-your-call-uber-driversother-gig-workers-struggle-for-unemployment.

²¹¹ Susanna Capelouto, Georgia Gig Workers Find Long, “Stressful” Wait for Unemployment Payments, NAT’L PUB. RADIO, (May 5, 2020), https://www.wabe.org/georgia-gig-workers-waita-long-time-for-unemployment-payments/.

²¹² Id. ((describing a complex system and a “nerve-wracking” wait for payments).

²¹³ Claire Withycombe, Self-employed, gig workers still waiting for Oregon to distribute unemployment benefits, SALEM STATESMAN J., (June 10, 2020), https://www.statesmanjournal.com/story/news/politics/2020/06/10/oregon-coronavirusunemployment-covid-19-pua/5335310002/.

²¹⁴ Lisa Rowan, Why is it So hard to Get Your Pandemic Unemployment Benefits?, FORBES ADVISOR, (March 1, 2021), https://www.forbes.com/advisor/personal-finance/why-its-so-hardto-claim-unemployment/ (describing the efforts of one worker to call, email in order to try to claim benefits, yet coming away unsuccessfully).

²¹⁵ Id.

²¹⁶ See, e.g. Anya Tucker, More Capital Region Residents Report Identity Theft due to Widespread Unemployment Benefits Fraud, ABC NEWS10, (Feb. 9, 2021), https://www.news10.com/top-stories/more-capital-region-residents-report-identity-theft-due-towidespread-unemployment-benefits-fraud/.

insurance claims and accompanying identity theft.²¹⁷

Problems with wait times and bureaucracy were also a problem for gig workers who tried to access paid sick leave. ²¹⁸ For example, one Instacart worker had gotten tested for COVID and was waiting to hear what his status was, but rather than being given access to sick leave, the worker was deactivated from the platform. Others complained about the excessive documentation that was needed once they received a COVID-19 diagnosis. Still others noted that they were confused, and never given instructions about how to access the paid leave program. As one Uber driver who had tried (unsuccessfully) to access sick leave benefits put it:

“They sent me a link that didn’t work. They said that a doctor or public-health official would have to log in and create an account with a medical ID to submit a special request form. My doctor was frankly so busy she couldn’t. We make Uber literally all of their money and I can’t even afford my insulin in the state of Texas. They couldn’t even throw us a bone?” ²¹⁹

Again, some of these systems were new, but other workers felt like all they were getting was the runaround. All of these factors contributed to the sense of frustration that gig workers had in trying to access these new sick leave benefits.

Many of the problems gig workers encountered in accessing benefits stemmed from their ambiguous employment status pre-pandemic. These ambiguities meant that state unemployment divisions apparently never viewed gig workers as full and equal participants in the labor force. As such, when gig workers were finally granted benefits in the CARES Act, state unemployment offices were caught off guard. Despite benefits specifically earmarked for gig workers, they still ended up marginalized based on unemployment offices’ pre-existing structural limitations, like using W-2 information to determine eligibility for benefits. And so, once again, the ambiguous legal status of gig workers led to problems.

2. Tip-Baiting and Other Deceptive Practices

Beyond the difficulty accessing unemployment benefits and paid sick leave, gig workers during the pandemic also contended with problems that concerned proper payment for their work. In some ways this is nothing new. Earnings on various platforms have been the subject of many controversies in the past. Workers have sued gig companies because of payment problems and a lack of transparency around charges, fees, and how payments have been calculated.²²⁰

²¹⁷ Press release, FBI Sees Spike in Fraudulent Unemployment Insurance Claims Filed Using Stolen Identities, (July 6, 2020), https://www.fbi.gov/news/pressrel/press-releases/fbi-sees-spikein-fraudulent-unemployment-insurance-claims-filed-using-stolen-identities.

²¹⁸ Aarian Marshall, *COVID-19 Opens the Door for Gig Workers to Win Sick Pay, *WIRED (June 7, 2020), https://www.wired.com/story/covid-opens-door-gig-workers-sick-pay/.

²¹⁹ Lia Russell, *Uber’s Bait and Switch on Sick Leave, *AM. PROSPECT, (May 5, 2020), https://prospect.org/coronavirus/uber-bait-and-switch-on-paid-sick-leave/.

²²⁰ Joel Rubin, Lawsuit Accuses Uber of Ripping off Drivers, Paying Them Smaller Fares than what Passengers Pay, L.A. TIMES, April 28, 2017; Aaron Gordon & Dhruv Mehotra, Uber and Lyft Take a Lot More from Drivers Thank They Say, JALOPNIK, (Aug. 26, 2019), https://jalopnik.com/uber-and-lyft-take-a-lot-more-from-drivers-than-they-sa-1837450373.

But in addition to these problems that have long-been a feature of work on digital platforms, a new practice called “tip baiting” started to become a major problem during the pandemic. The practice of tip baiting involved customers posting a large amount as a tip in order to get prompt fulfillment of their order, and then those same customers later editing down the tip amount. For example, one gig worker on Instacart noted a promised tip of $55 on a grocery order, only to have the customer remove it the next day.²²¹ The removal of the tip left her demoralized, as most of her earnings from that day had instantly evaporated.²²² The practical result of tip baiting is to take the money away from the gig worker who earned it. ²²³ The practice seems incredibly problematic and deceptive, a type of bait-and-switch played on workers. Yet most grocery delivery platforms do allow the customer time to either raise or lower the amount of tip provided. The practice of tip baiting seemed to pick up steam when there were shortages during the spring and summer of 2020. Indeed, tip baiting was one of the issues leading to some of the work stoppages during the spring and summer of 2020 on many gig platforms.²²⁴

More generally, tip baiting and other practices like it bring to the forefront the fact that gig workers deserve to have fair and transparent wage structures for their work. Such fair pay structures would include minimum wages that incorporate time that is spent looking for work and time in between various tasks undertaken on the platform. Gig workers can sometimes struggle to make minimum wage for on-demand apps that require in person work. Those crowdworkers who only do tasks online on average earn only half the U.S. minimum wage. ²²⁵ (That is half of the old minimum wage of $7.25 / hour, not the proposed enhanced minimum wage of $15/hour, that was considered and then blocked by the Senate in February of 2021). ²²⁶ Fair pay remains as a continuing struggle for gig workers.

Gig workers faced other problems during the pandemic, too, like not having adequate restroom facilities or places where they could wash their hands.²²⁷ While these are continuing

²²¹ Id.

²²² Id. (recounting story of Instacart worker Annalisa Arambula, who said, “I don’t pretend to be a hero, like a nurse in a hospital . . . but I literally am exposing myself and when I return home, exposing my own family to the possibility of transmitting this disease. When you know that it’s somebody who’s just doing it to game the system and to get their order when they want it, it’s really frustrating.”).

²²³ Sarah Ashley O’Brien & Kaya Yurieff,* People are Luring Instacart Shoppers with Big Tips – And Then Changing Them to Zero*, CNN (Apr. 9, 2020, 3:01 PM), https://www.cnn.com/2020/04/09/tech/instacart-shoppers-tip-baiting/index.html.

²²⁴ See, e.g. Michael C. Duff, New Labor Viscerality? Work Stoppages in the “New Work,” NonUnion Economy, ST. LOUIS L.J. (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3637605.

²²⁵ Berg, supra note 55.

²²⁶ Democrats Abandon $15 Minimum Wage Backup Plan, WASH. POST, Feb. 28, 2020; Jacob Pramuk, $15 Minimum Wage Not Allowed in Biden’s COVID Relief Bill, Senate Official Says, CNBC, (Feb. 25, 2021), https://www.cnbc.com/2021/02/25/15-minimum-wage-decision-bidencovid-relief-bill.html.

²²⁷ Edward Ongweso Jr., Gig Workers’ Only Chance to Pee Is Apparently an App, VICE, (Oct. 23, 2020), https://www.vice.com/en/article/93w5by/gig-workers-only-chance-to-pee-isapparently-an-app (noting the lack of bathroom facilities for gig workers, and platform’s responses that they should use a separate app to locate bathrooms).

problems that will be need to be addressed, the fact is that at least the pandemic moved some gig workers closer to parity with employees, if only on a temporary basis. But when gig workers tried to access the benefits provided by the expanded PUA plan, they often encountered confusion about their employment status, and as a result, their claims and payments were delayed and their needs minimized. During the pandemic, this issue of employee classification has translated into lost benefits, delayed benefits, and additional stress for gig workers. ²²⁸ The same has been true for the difficulties that gig workers have encountered with accessing their new sick leave benefits.²²⁹ The way towards solving these problems more permanently is clear – and it involves parity for gig workers with other employees.