V. THE ARGUMENT FOR PARITY

V. THE ARGUMENT FOR PARITY

V. THE ARGUMENT FOR PARITY

There is not much good that has come out of the 2020 coronavirus pandemic, which has been a time of suffering for so many. But at least the pandemic has served as a catalyst for a long-needed “jumpstart” for gig worker’s rights. Prior to the pandemic, gig work was viewed more as marginal work done only convenience. Now, more people are aware that gig work is real work, and attitudes are starting to change. Indeed, when the pandemic struck, grocery delivery shoppers, meal delivery workers, and on-demand rideshare drivers were all understood to be working at important jobs and were considered “essential” workers under most people’s understandings as well as under the law. As a result, the CARES Act and related legislation provided temporary unemployment and paid sick leave programs that treated gig workers the same as employees.

At the same time that all these events were taking place for gig workers, many salaried or 9-to-5 employees started working from home, using online platforms on a regular basis to complete their work. The result of all these changes is that old categories between remote work and in-person work, or work that needed to facilitated on an app simply can no longer be maintained. Where once those kinds of technological distinctions might have justified differential treatment for gig workers, the reality is that these categories have begun to blur and collapse. This next Section examines the trends, discussions, and changes in the law to argue in favor of parity for gig workers.

A. The Essential Worker Paradox

The discourse on gig workers during the pandemic presents what I call the essential worker paradox: How can workers be essential and yet at the same time be completely disregarded when they try to gain the basic protections that employees receive? The paradox might be explained by separating out the concept of essential work from the people who are deemed essential workers. Essential work is the labor that needs to happen in order for society to function; food and

²²⁸ See Nicole Clark, Gig Workers Can Qualify for CARES ACT Unemployment Aid, BLOOMBERG L. (May 6, 2020, 3:01 AM), https://www.bloomberglaw.com/document/XBOENS4000000?bna_news_filter=daily-laborreport&jcsearch=BNA%252000000171bc1ad730a5f9bd3f86dc0001#jcite.

²²⁹ Russel Brandom, Sick Days: Instacart Promises a Safer Way to Shop, But Workers Tell a Different Story, THE VERGE (May 26, 2020, 9:00 AM), https://www.theverge.com/21267669/instacart-shoppers-sick-extended-pay-quarantine-leavecoronavirus.

agriculture production, energy production, the provision of medical services, and transportation, to name a few examples. This work is of critical importance, and without it the consequences to the economy and to health would be dire. Essential workers, on the other hand, are the people who of necessity are needed to produce the essential work.

While essential work is valued and valorized, the notion often seems to be separated from the essential workers who are involved in actually providing it. We can see this distinction in the statistics about how essential workers are underpaid compared to other employees, or the news stories about large grocery chains shuttering storesrather than provide hazard pay to store cashiers and clerks. ²³⁰ The lower wages and casual attitude toward safety for frontline workers means that essential workers are not being treated as if they are critical, important, unique, or irreplaceable. In fact, perhaps because of the risks that gig workers are taking, it often seems they are often treated as disposable. Gig workers and other frontline workers are taking the risks that others do not want to take, and are doing so out of economic necessity. As one French gig worker put it, “on est la chair a canon,” which means, “we are cannon fodder.”²³¹ Indeed, it is hard to understand how the work could be seen as important, and yet so little consideration be given to the person who is performing that work.

The attempted division of work from the worker providing the labor also has a long tradition, and has in the past led to labor abuses. There, the labor that people provided was prized, but the workers themselves were treated poorly. In fact, these are the reasons that the organizing documents of the United Nations – International Labor Office declared that labor is not a commodity.²³² In other words, work is done by people, and the personhood and human rights of the worker must exist separately and distinctly from the importance of the work being done. To put it in another perspective, the view recognizes that the person who is working has a value and worth a human being beyond what they are able to produce.

These human rights concepts can help us to disentangle the essential worker paradox. We must not claim that work is essential but then treat gig workers as disposable. And we know that gig workers, out of any frontline workers, are among the most marginalized because of the continuing problems around their legal status. But knowing how and why these terms are being confused and in some instances exploited opens up an opportunity when we look at the essential work and essential workers in tandem. Gig workers took enough risks during this pandemic to say that they have truly are essential, and thus have earned parity with employees.

B. We are All Gig Workers Now

As over 50 million Americans moved from full-time in person work to some form of hybrid work or to work from home, remote work became more normalized. And as computer intermediated work will likely continue to become more ubiquitous, most of the reasons for excluding gig workers from employee status seem increasingly problematic and out of touch with the way that work is being performed.

To take an example, consider office workers who used to work in an office but then switched to working from home during the pandemic. Remote work was possible for these

²³⁰ See note [ ], supra.

²³¹ Aizicovici, supra note [ ].

²³² DECLARATION OF PHILADELPHIA, INTERNATIONAL LABOUR OFFICE (1944), and for full text, see ILO, Constitution of the International Labor Organization (Geneva, 1992), 22.

office workers because they used digital platforms to connect them with their supervisors, co workers, and subordinates. Those office workers still would be considered employees even if they had the flexibility to sign in and complete work during flexible working hours, perhaps as they managed household chores or helped children with virtual school. The old arguments about why gig workers should be left out of employment protections, typically framed around flexible work schedules, seem hollow in light of these fundamental changes to the structure of work.

And because so many workers have switched to remote work, this is even more of a reason why employee status for gig workers is such an important concern. Within the fissured workplace, many jobs could be split up, outsourced, or put onto digital platforms. ²³³ And the lack of any fundamental rights for gig workers creates the incentives for that to happen. If we stop to think about it, solidarity with gig workers makes sense for workers across the occupational hierarchy. And it makes even more sense in light of the incredible sacrifices that gig workers have made during the pandemic so that others could stay safe.

C. Moving from Temporary to Permanent Rights

Temporary rights and protections in the wake of the pandemic are one thing; but they are not enough to reward gig workers fully for their sacrifices during the pandemic. ²³⁴ The schism between those who are employees, and those who are being denied coverage only because they use a platform to access their work is increasingly unfair and illogical, as noted above. The changes that were implemented during the pandemic on a temporary basis should remain. ²³⁵ Access to paid sick leave and unemployment protections should be made permanent for gig workers.

Beyond unemployment and paid sick leave, there are other protections that gig workers need. For example, having a reasonable minimum wage that included time searching for work or getting to work would help with financial stability. Allowing gig workers to sue for discrimination and harassment would mean that fewer gig workers would be sidelined by prejudices or unfair employment practices. The ability to join a union and bargain collectively would be absolutely key. And the right to blow the whistle on wrongdoing at work, without fear of reprisal, would also be important. In listing these benefits which would help gig workers, it becomes more obvious that these are the typical rights of employees. In fact, employment law has already largely sorted out the important needs, rights, and responsibilities of employees. ²³⁶ Gig workers have earned these same rights.

There are counterarguments. While it might be difficult to argue that gig workers were only working on trivial matters (due to their service during the pandemic), platforms might try to argue that the employee model would be too expensive to maintain. Or, as they did during the Proposition 22 campaign in California, platforms might argue that making workers employees would take away their flexibility and freedom of contract. Finally, there is also an argument that

²³³ DAVID WEIL, THE FISSURED WORKPLACE (2013).

²³⁴ See, e.g. THOMAS PIKETTY, CAPITAL IN THE TWENTY-FIRST CENTURY (2017) (TRANS. ARTHUR GOLDHAMMER).

²³⁵ Megan Tobias Neely, What Will U.S. Labor Protections Look Like After Coronavirus?, HARV. BUS. REV. (Apr. 2, 2020), https://hbr.org/2020/04/what-will-u-s-labor-protections-looklike-after-coronavirus.

²³⁶ DeStefano, supra note [ ].

even some employees who are essential workers were not treated particularly well during the pandemic.²³⁷ For example, at the beginning of the pandemic, health care workers who wanted to wear N-95 masks while treating patients were often reprimanded or fired.²³⁸ Incredibly, the justification at that time was that hospitals and doctor’s practices did not want to worry or alarm patients.²³⁹ Some retail and grocery store workers were violently attacked when they attempted to enforce mandatory mask policies in stores. ²⁴⁰

There are rebuttals to these counter arguments that I believe are convincing. All businesses struggle with costs and profitability, but they still must provide minimum wage to their workers. As platforms were just starting, perhaps they needed room to experiment, but these are well-established businesses now. Further, part-time work can still be flexible and yet come under the ambit of “employee” protection. Businesses can and should treat their workers with dignity and fair wages the same way that traditional businesses do. Finally, negative treatment of frontline employees is hardly a reason to deny another group of workers the rights that they deserve. In fact, these disturbing stories of frontline employees being treated poorly is more likely a reason that we should try to raise the standards for all workers, not a reason to withhold benefits from gig workers.

This Article has pointed to several key reasons that lead to the conclusion that there should be parity for gig workers with employees. That change would have important implications. Apart from minimum wages, unemployment benefits, and discrimination protections it would also mean that gig workers could join unions. Presumably increased gig worker power and pressure from unions would mean an end to deceptive practices like “tip baiting,” which harm only the workers, but not the platforms. ²⁴¹ Gig worker parity could be accomplished through legislation, by court decisions, or by Acts of Congress. But the way forward depends on securing protections for all workers, regardless of the technology they may use to help them accomplish their work.