The BDN Opinion section operates independently and does not set newsroom policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Michael Felsen of Jamaica Plain, Massachusetts, retired in 2018 after a 39-year career as an attorney with the Department of Labor. He is currently an Access to Justice Fellow with Justice at Work in Boston. This column was produced for The Progressive magazine and distributed by Tribune News Service.
Tech giants like Uber, Lyft and DoorDash may soon be knocking on people’s doors — but it won’t be to deliver a meal or a ride. Instead, they’ll be asking for help in their effort to knee-cap protections for the gig workers they employ.
This is what they did last year during a $200 million referendum campaign in California called Proposition (“Prop”) 22, which successfully enshrined their drivers’ status as “independent contractors” in that state.
In early August, the companies filed a similar ballot initiative in Massachusetts. Other states are in the crosshairs.
These gig-economy goliaths are hell-bent on making sure their workers are considered independent contractors and not employees. That’s because, under state and federal laws, employees are entitled to protections including minimum wage, paid sick leave, safe workplaces, and unemployment and workers’ comp insurance — while independent contractors enjoy none of these.
As a result, many companies misclassify their employees as independent contractors — cheating them out of their rights while side-stepping employment-related payments they owe.
Unfortunately, the legal tests for who is an employee and who isn’t vary from state to state and from one federal law to another, and can be tricky to apply. That’s confusing for workers and employers alike.
But a number of states, including Massachusetts and California, have adopted the simple and worker-friendly “ABC test” for employee status. It essentially says that those who do the work a company is primarily engaged in are employees, entitled to rights and protections.
Under that test, gig drivers, for example, are clearly employees. In fact, the Massachusetts attorney general sued Uber and Lyft on precisely that basis; the case is pending. Hence, the gig companies launched their Massachusetts ballot initiative, to replicate Prop 22’s surgical excision of a slew of gig workers from employee status under the ABC test.
A lot of Californians think they were hoodwinked into voting “yes” on Prop 22. Uber and the others claimed misleadingly that if their drivers and delivery workers wanted flexibility, they couldn’t be employees. They also pointed to the benefits they’d provide their “independent contractors” under Proposition 22 (and the Massachusetts initiative): a guarantee of 120 percent of the state minimum wage, some payment toward health care benefits, and some reimbursement for mileage.
But because these benefits are largely based on the hours and miles that the drivers are actually engaged (not while they’re waiting for or returning from a gig), many workers say they’re illusory. In fact, an analysis from UC-Berkeley’s Labor Center estimated the pay guarantee under Prop 22 for Uber and Lyft drivers actually equates to a wage of $5.64 an hour.
In 2017, gig workers totaled one-third of our nation’s workforce. That percentage has since grown. In 2019, the Federal Reserve reported that 58 percent of full-time gig workers said they would find it hard to come up with $400 in the event of an emergency.
Passage of the federal Protecting the Right to Organize (PRO) Act would help empower these workers, by including the “ABC test” in the National Labor Relations Act — expanding nationwide protections when workers act collectively. The same test for employee status should be adopted into other laws like the Fair Labor Standards Act (minimum wage, overtime). Federal statutory or regulatory changes like these would effectively supersede the effect of Prop 22 and its clones.
But while we wait for federal action, Uber and DoorDash are on the move. So if they come knocking with another Prop 22, tell them you’re not interested — because the table scraps they’re offering is hardly the square meal their workers deserve.