The fight to secure gig workers more employment rights and protections has been one of Albany’s more intractable policy issues for several years now. Powerful and deep-pocketed gig companies like Uber and DoorDash have long resisted efforts to reclassify gig workers from independent contractors to employees – securing for them all the rights that employees everywhere are entitled to – as legislators tried to do in California. Meanwhile, labor advocates have shut down attempted compromise bills that would grant gig workers some new rights but withhold others, calling them giveaways to companies.
The New York City Council has had more success in advancing new protections for some gig workers, thanks in large part to advocacy from the workers themselves. Organizing by Los Deliveristas Unidos, a grassroots group of largely immigrant food delivery workers, led to those workers securing protections at the city level, including access to bathrooms and minimum pay levels.
With the state legislative session in full swing, City & State reached out to experts in labor law and gig work to see how legislators might approach the contested issue this year. Four experts responded, including Maria Figueroa, dean of the Harry Van Arsdale Jr. School of Labor Studies at SUNY Empire State; Patricia Campos-Medina, executive director for the Worker Institute at ILR Cornell University; Andrew Wolf, a lecturer at the City University of New York; and Eli Dvorkin, editorial and policy director at the Center for An Urban Future.
Responses have been edited for length and clarity.
Is there still an avenue for New York to pursue reclassifying gig workers as employees, rather than independent contractors?
Andrew Wolf: New York has a clear path to classifying gig workers as employees. In fact, the state Department of Labor has already ruled that Uber and Lyft drivers are employees under the state’s unemployment insurance system, despite the companies fighting against it. The pandemic showed the need to classify gig workers as employees as their contractor status undermined workers’ ability to quickly access social assistance and health and safety protections.
Patricia Campos-Medina: As of right now, it is unclear if there is a credible legislative effort to reclassify workers as employees rather than independent contractors. However, that does not mean that these issues are not a concern for workers, their advocates and for labor unions. App companies determine how often you work, the type of job you take and the wages for your work. Determining who is the actual boss in this employment relationship is an essential component of determining who is ultimately responsible for the health and safety of the workers, their earnings and working conditions while employed to deliver essential services to New Yorkers.
Maria Figueroa: There is still the option to introduce a Fair Play Act bill for gig workers. This law makes it harder to misclassify workers as independent contractors, and it is already in place for the construction and transportation industries in New York state. There have also been court rulings providing statutory rights to ride share and delivery workers under the state’s unemployment insurance and workers compensation laws. The avenues are still there, but the application of the rulings or the introduction of a Fair Play Act bill would depend on the advocates’ ability to build a solid coalition to promote such policy approaches.
Eli Dvorkin: There's little doubt that the wholesale reclassification option is still on the table, both in New York and at the federal level. But part of what makes this challenge so complex is that gig workers themselves are split on the issue. Independent and contract workers want predictable, family-sustaining pay, health care and other benefits, but most also want the flexibility to access income-earning opportunities on demand. Current policy tools aren't a great fit for addressing these issues, but newer ideas could help.
If New York doesn’t reclassify gig workers, what other feasible options could the state consider to expand their rights?
Eli Dvorkin: The best outcome would be one in which freelance and gig workers are able to enjoy the flexibility they currently have, while gaining access to crucial protections and benefits that are typically reserved for workers in traditional employment. One good option would be to build out a system of universal portable benefits. Under this system, benefits from health care and paid sick leave to retirement accounts would move with independent workers from job to job.
Maria Figueroa: Another approach would be to create a third category of workers who would have bargaining rights, unemployment insurance, workers compensation, family and medical leave, pension security, and anti-discrimination protection; but won’t be classified as employees. However, advocates will not accept (and rightly so) a law that grants protections that are inferior to what employees currently enjoy under state law.
Andrew Wolf: Beyond classifying gig workers as employees, there is a whole host of policies the state could implement to protect gig workers. The state could pass a minimum wage, pass a just cause firing law, make the companies provide protective equipment, fight the discrimination workers face, and create a task force to address the rash of violence and robberies against gig workers. Another important and under-discussed issue is creating greater transparency in how algorithms impact workers and ensuring that gig workers have access to the data they generate for these companies. Regulating these electronic platforms is not just a workers’ rights issue but a tech policy issue.
Will the successful organizing of Deliveristas in New York City affect the push for more gig worker rights at the state level? Are we likely to see workers themselves having a stronger voice in the debate in Albany?
Maria Figueroa: The Deliveristas’ success in obtaining local level protections will have an impact eventually at the state level, if other localities follow the same approach and the state then decides to establish a statewide policy. At this point, the New York City Deliveristas’ newly won protections need to go through the test of implementation and enforcement. Since implementation requires so much attention and resources, it is likely that New York City app-based workers will be focusing on local level efforts and not necessarily in a debate in Albany. Perhaps workers in other sectors of the gig economy will have more of a voice in statewide policy initiatives.
Patricia Campos-Medina: The struggle for rights for app-based food delivery workers in New York City demonstrated the importance of listening to the workers’ concerns and their solutions. What is critical in this process is for legislators to engage all stakeholders and ask them what is important to them – basic human rights to a bathroom in New York City or the ability to (contribute) towards a workers compensation fund? It might be that both are important, but if they are not part of the discussion on designing the solution, then we are not changing the power relationship for low wage-workers, many of whom are undocumented, to advocate for themselves in the context of their daily realities.
Andrew Wolf: Successful organizing by groups like the Deliveristas and the New York Taxi Workers Alliance is sure to have a huge impact on policy making at the state level. These gig worker fights were part of a broader upsurge in immigrant organizing in New York City during the pandemic, as demonstrated in the fight for the excluded worker fund. The rise of gig worker organizing is part of a general wave of New York’s most recent immigrant populations finding their political voice and exercising their growing importance in the state.
Eli Dvorkin: The Deliveristas have done so much to raise the visibility of these issues and I see that momentum continuing to grow. At the same time, thousands of other freelance and independent workers have a huge stake in the outcomes of potential policy changes at the state level. I don't have a crystal ball, but I see a major opportunity for New York state to build a cohesive and modern system of portable benefits that would strengthen the social safety net for the long term.