California Policymakers Must Protect Gig Workers During Coronavirus Health Crisis
Uber, Lyft, DoorDash, and other gig companies are putting drivers and passengers at risk during coronavirus.
Because they are denied benefits, drivers living paycheck to paycheck will be unable to afford rent, utilities, food, and more. They’ll be forced to choose between continuing to work while sick or losing their housing. Drivers will have no choice but to continue working, putting passengers and the public at risk.
Uber, Lyft, and other gig companies can change this. We’re demanding the state officials protect gig workers during the coronavirus pandemic by fully enforcing AB5 and ensuring workers have access to benefits like paid sick leave, disability, family leave and unemployment insurance.
It shouldn’t take a pandemic for gig companies to provide basic dignity to their drivers.
Sign on now to ask the state of California to step in and protect workers.
To: Governor Gavin Newsom, Attorney General Xavier Beccera, Labor Secretary Julie Su, and local officials, including City Attorneys, District Attorneys, County Counsels, Mayors, City Councils, and local health and labor enforcement agencies
After gig workers across the country took action last week demanding paid sick time during the coronavirus outbreak, companies like Uber, Lyft, DoorDash, and others finally agreed to create a fund to pay for workers who get sick and are quarantined due to coronavirus. But this response is not nearly enough.
In California there are many state and local laws in place to protect workers. Many of these laws require the worker to be an employee, not an “independent contractor” like what the company tells me I am. But recent changes to the law make clear that the company’s position is incorrect and that they must immediately begin complying with the law. Every official with enforcement authority in California must take steps now to ensure misclassified workers are able to access critical workplace benefits.
This issue is not hypothetical to me. I have multiple injuries and a lung condition. The last time I got a common cold, it took me three months to recover. I don’t have health insurance and certainly can’t afford to pay out of pocket for a doctor’s visit. I am fearful at all times because of the potential consequences of Uber and Lyft’s failure to provide a safety net for workers like me. I don’t have access to paid sick time and the company hasn’t communicated what would happen if they deactivate my account due to the virus.
But at a very basic level, offering workers paid time off only when they are diagnosed and quarantined with an illness that could kill them is a slap in the face.
What happens to workers who can’t afford to take time off to see a doctor? Who can’t afford or don’t qualify for healthcare? Who think they might have coronavirus but are scared to go to the doctor because if they stop working they will lose their housing or their kids won’t eat? What happens to every passenger those drivers transport?
I’m not alone in my fear.
“Last week my income went down 30% because of decreasing demand. I was notified by MediCal last week that I no longer qualify and my insurance coverage will end this month. I am under so much stress, I’m barely sleeping. I can’t focus and I don’t know if I am going to be able to pay my bills.” - Yash A.
“I drive for a company that provides rides to children going to and from school. Since schools have begun closing down, I am losing a substantial amount of income. I am one bad month away from losing my home. My home is literally all that I have in this world. If I lose it, I do not know what will happen. It would be disastrous for me and my children. AB 5 must be enforced to the fullest extent of the law to protect the health and livelihood of gig workers! In addition, I would like to see a moratorium on all loans and financial obligations during the virus.” - Kitty N.
“Sickness is not an option for me because not working is not an option. If I do get sick, I will have to continue to work or I will lose my ability to exist - it's not just income. Before the coronavirus outbreak, I managed to pay my bills on a monthly basis, with no room for error. Here are the things at risk: paying rent, my car payment, my health insurance, and of course food. If I have to stop working without any safety net I would lose all of these things.” - Edan A.
“As a food delivery driver, I am constantly interacting with people and public places, picking up food and delivering it to people’s homes, putting myself and others at risk. If I get sick and can’t work, I won’t be able to support myself and my family, andI will lose my housing.” - Mostafa M.
“Right now I’m working as many hours as I can. I’m trying to make as much money as possible in case I have to stop working. I’m really tired and scatter-brained. Once I stop working my resources end. I don’t know what that is going to mean for me.” - Carlos R.
I am at a loss. Uber, Lyft, Doordash, Instacart, and Postmates are multi-billion dollar companies that have minted billionaires and millionaires. But workers like me, who provide the core service of their business, get the bare minimum. Anyone at these companies can get coronavirus. But software engineers, salespeople, investors, and executives have access to healthcare, paid time off, and unemployment insurance — drivers do not. If I get sick, I’ll struggle to figure out how to keep food on the table for my children. In this moment, things feel particularly dire. But they were dire for us before this pandemic.
We need the same rights as every other worker at Uber, Lyft, and every other gig economy company.
Luckily, in California, we theoretically have these rights. However, the companies have repeatedly denied this fact and have done everything in their power to stop workers from accessing their rights.
Agencies, institutions, and offices throughout the state have been granted the ability to enforce AB5, the law that can serve as a gateway to these rights. Now is the time for swift action. If companies like Uber, Lyft, Instacart, DoorDash, and Postmates were forced to immediately comply with state law, workers across apps would have access to things like paid sick leave and unemployment insurance.
We are demanding that state officials protect gig workers during the coronavirus pandemic by fully enforcing AB5 and ensuring workers have access to benefits like paid sick leave, disability, family leave and unemployment insurance.
Over the next weeks and months, these actions will be the difference between who gets to live, who gets to keep their housing, who gets to eat, and who doesn’t.
Enforcement officials and these companies have the responsibility to ensure that workers like me don’t have to make the choice between protecting our health and losing our housing. We have waited long enough. Now is the time to act.
We call on the Governor, Attorney General, Labor Secretary, and local officials, including City Attorneys, District Attorneys, County Counsels, Mayors, City Councils, and local health and labor enforcement agencies to immediately enforce state and local laws (including AB5) and prioritize access to state and local benefit programs that may benefit misclassified gig workers.
STEPS STATE ENFORCEMENT OFFICIALS MUST TAKE
The gig workers, community-based organizations, and allies signed on to this letter are calling on state officials to take the following actions:
- Attorney General Xavier Becerra, Governor Gavin Newsom, and Labor Secretary Julie Su should immediately make a statement, directed to these companies (and others that misclassify their workers) regarding the affirmative burden they hold to prove how their workers are not employees. Absent this showing, all drivers should be considered employees and should not be prevented from accessing basic workplace protections.
Moreover, the Attorney General should take action to ensure California law is enforced. Specifically:
- The Attorney General has been granted explicit authority to seek injunctive relief to prevent the misclassification of workers. That office should explore what rapid injunctive relief options are available to ensure that misclassification is not a barrier to workers as they seek to access basic California workplace rights like sick leave or unemployment insurance;
- The Attorney General should also issue guidance to all District Attorneys, City Attorneys, and County Counsels regarding their authority to seek rapid injunctive relief to ensure workers can access workplace benefits under current state law.
Labor Secretary Julie Su should immediately craft, or direct the heads of various state agencies to craft, external and internal guidance for workers who are misclassified, since they will have a harder time accessing benefits like disability insurance, paid family leave, and unemployment insurance. The Labor Secretary should immediately:
- Send guidance to the EDD to ensure the office understands that gig workers who apply for unemployment insurance may not have payment histories with the agency to award benefits. This fact alone should not lead to a denial of benefits, since companies do not regularly report these earnings. Your guidance should clearly provide the agency with steps necessary to help workers provide all relevant information.
- In addition, EDD should explicitly call on these companies to provide information on worker earnings. These companies have access to and can easily transmit wage information to the state to assist in benefit calculations.
EDD must also take other specific actions, which include:
- Relaxing response deadlines for these programs so a formal deadline doesn’t stop a worker from accessing benefits;
- Proactively assisting workers as they navigate the application process - many of whom do not speak English as a first language. The agency should immediately identify resources to help workers who speak Arabic, Portuguese, Spanish and more.
- Prioritizing translations of written material in these languages as well.
- Immediately explore how the State Disability Insurance fund may be used to protect workers who have been misclassified. Many workers do not know that they are misclassified, and fewer still don’t know that because they didn’t self-insure, they will not be able to access disability insurance and paid family leave benefits. This is clearly contrary to the social policy behind these programs and the agency should identify ways to verify worker earnings and make them eligible for these crucial income replacement programs. The current Disability Insurance Fund balance is over $3 billion.
- In conjunction with workers and stakeholders, immediately craft interim guidance for transportation network and delivery network companies about their obligations under the law and steps they should take to protect workers (similar to the interim guidance your office drafted for healthcare workers). Drivers for Uber, Lyft, DoorDash, Instacart, and Postmates come into frequent contact with the general public, work in grocery stores and restaurants where large crowds gather, and face unique risks in this time of uncertainty.
- Add information on the LDWA’s website that clearly addresses what worker benefits misclassified workers are eligible for and what employer obligations are under the law. Specifically, the agency has drafted information for employers around their obligations to affirmatively establish employee status. These resources should be linked to any FAQ or communication regarding COVID-19 communications so that employers are clearly on notice regarding their obligations.
- Direct the state Rapid Response Service to make contact with these companies in case of large-scale disruptions in service. Given the fluid nature of this situation, the state should be proactive in ensuring that gig companies understand what options and benefits are available to their workforce and what steps they should take so that any mass disruption or cessation of services is carried out with transparency and with an eye to protecting workers and public health.
- Immediately direct the Labor Enforcement Task Force to issue guidance to these gig companies regarding their obligations under state law and request detailed responses from the companies on their compliance plans. This joint initiative - which includes the DOJ, the EDD, and Cal/OSHA — is tasked with rooting out abusive employer practices such as wage theft and non-compliance with workplace laws. The Task Force should follow up guidance to these companies with proactive investigations where they suspect that misclassification has prevented a worker from accessing benefits.
- These investigations, if they identify violations of the law, should result in immediate enforcement actions. In conjunction with the state’s Bureau of Field Enforcement and the state Attorney General, if misclassification has prevented a worker from accessing workplace protections, legal action should be instituted to seek rapid injunctive relief.
All local officials should take proactive action to ensure that workers in their jurisdiction are covered by protective local law. For example, all city officials should:
- Communicate to all employers their obligations under local law. For example, the City of Oakland has made clear that all workers — including gig workers — should be receiving paid sick leave under local law.
- Where compliance is not forthcoming, city officials should explore rapid enforcement actions. California law grants City Attorneys in large cities (those with more than 750,000 residents) the authority to seek injunctive relief on behalf of workers who have been misclassified. The City of San Diego recently engaged in a successful enforcement action and obtained a court order preventing an app-based company from claiming that their workers are independent contractors. These public actions may be necessary to ensure that workers have access to the benefits they need, which are blocked by misclassification.
For cities that don’t have sick leave policies, pass them on an emergency basis. The policies should go beyond those provided by state law and include:
- Emergency use provisions to cover the CDCs recommended 14-day quarantine period;
- Clarify that the sick leave policy may be used by the worker if they are ill or for time they need to care for an ill family member;
- Explicitly include misclassified workers to ensure they are protected.
Establish emergency response plans that go beyond existing law, including:
- Suspending accrual or use caps or restrictions on access to sick leave;
- Direct local enforcement officials to directly respond to worker retaliation or discrimination;
- Enact local moratoriums on evictions or foreclosures for failure to pay rent or mortgage payments for the duration of any emergency declarations;
- Make public funds (or a combination of public or private funds) available to assist workers so they have direct resources to pay for food, utilities, and housing; and
- Specific accommodations, especially if school closures occur, such as access to meals and any child care services.
- Communicate to workers in multiple languages that include information on emergency responses from state and federal officials. Local officials should specifically take all action necessary to protect and communicate to workers who may be undocumented to come forward for services and healthcare where necessary.