Gig Workers and Unemployment Benefits

New Yorkers in 2020 can rejoice “that workers for [at least one food delivery] app are considered employees for purposes of unemployment benefits.”

Couriers and gig workers is the only thing working right now. While most Courthouses are closed, the courier, fast-food chains and the salesclerk that stocks the toilet paper are believed to be more essential than access to justice for a great deal of litigants.

Gig workers, working second or third jobs and perhaps unable to secure benefits through more traditional employment, are on the frontline of the COVID19 pandemic and deserving of some recognition. Touted by the New York Attorney General in her March 26, 2020 Press Release, “During Coronavirus Pandemic, Decision Will Allow Drivers to Collect Unemployment Benefits,” this New York Court of Appeals decision addresses but falls woefully short of fixing another pandemic problem just waiting to rear its ugly head: benefits for gig workers.

There’s an App for That

From Shipt, to Uber, Door Dash and other app based programs that employ "independent contractors," there are a great many benefits not available to these front line workers.

The newly minted New York Court of Appeals decision In the Matter of the Claim of Luis A. Vega v. Postmates Inc upholds the award of unemployment benefits to a Postmates’ courier, or what has become known as a gig worker, Luis A. Vega.

When you visit https://postmates.com/, the advertisement is reads “Food, drinks, groceries, and more available for delivery and pickup.” If one were so inclined to click on https://careers.postmates.com/, it currently recites that “[w]e’re here to build the future, not just to maintain the status quo. For our people, Postmates is a way of life and a part of pop culture” and beckons those seeking a career with Postmates to “[b]e a part of a company that facilitates $6.6 billion in economic activity across all sales, courier earnings, and merchant growth.” While it sounds like a partnership, Postmates’ couriers are classified as independent contractors. However, as Postmates argued before the New York Court of Appeals, “Postmates food delivery drivers are not the company’s employees because the service simply connects couriers to customers.”[iii]

Like outsourcing labor to sweatshops outside of the United States, the recurrent business model relies on avoiding paying employee benefits and taxes.

States and other municipal entities are pushing back against the free ride that these entrepreneurial exceptors have obtained so far: a glut of workers essential to their business without having to pay those pesky perks otherwise mandated by law. Indeed, “[a] similar battle between Uber and regulators in New Jersey spotlights the possible financial implications [which resulted in] a $650 million bill for unpaid employment and temporary disability taxes, finding that the company has been misclassifying workers as independent contractors.” It is likely that reasonable regulation would, among other things, have avoided the need for New York Court of Appeals to hear In the Matter of the Claim of Luis A. Vega v. Postmates Inc.

These formidable frontline favorites among those vulnerable, stuck at home or confined to their couch are run by gig workers. “Typically, gig workers are classified as independent contractors, which means they are ineligible for unemployment benefits or healthcare.” The legal fiction coupled with the side hustle slogan was that these “gig workers” were able to make their own hours while driving for a “delivery app.” From food and booze to people and papers, courier services are not new to New York while the idea that one could remove the independent contractor label was a novel idea.

The year is 2020. We live in the 21st Century. While couriers, curbside delivery and dating have an “app for that” our New York Legislature needs to create legislation and assist the courts.

As the demand for these “essential” services have skyrocketed, we bear witness to the unionization and growing advocacy of the gig workers who make these applications function and who are starting to demand accountability and benefits. Rideshare Drivers United has been striking while www.gigworkersrising.org touts that “Uber and Lyft drivers need a fair share.” While California has witnessed the passage of legislation entitled these workers to benefits and allowing “millions of new workers [the] right to join labor unions,” New York has remained stagnant although the imprimatur of injustice remains....

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