Gig workers need protection more than ever

Since the onset of the COVID-19 pandemic, we have come to rely more and more on “gig” workers to supply us with our day-to-day needs. When restaurants were forced to shut their doors and grocery stores saw severe restrictions, drivers for companies like GrubHub and Instacart became lifelines for consumers and local businesses alike.

However, despite the critical need for these workers and the COVID-19 exposure risks that they are forced to take each day on the job, such workers are often classified as independent contractors rather than employees, leaving them ineligible for even basic employee protections like minimum wage and unemployment insurance.

The U.S. Department of Labor recently released a proposed rule meant to ensure that employers may continue this practice of misclassifying workers who are essential to their businesses.

The question of whether a worker is an employee or a contractor — a distinction that could affect whether a worker is eligible for worker’s compensation, paid leave and more — is often answered with what’s known as an “ABC test,” which looks at three different criteria to make the determination. These tests are used in some form in 33 states including Connecticut.

The current rule weighs how much control employers have over workers in making the determination. The propose change instead asks how much control a worker has over her or his working conditions and the worker’s opportunity for profit or loss under varying conditions. It would skew the power relationship between gig workers and their employers toward large gig platform companies, which continue to fight against any attempt to provide their workers with proper employment protections.

Fortunately, Connecticut has its own more generous definitions for employees for most employment protections and does not need to rely on the DOL rule to make state law determinations.

However, the DOL’s efforts to undermine workers’ rights highlight the need for concerted state action to protect these essential workers.

Up to 35,000 workers in Connecticut relied on gig work as their primary source of income before the pandemic, and with unemployment at record highs and the need for gig workers rising, that number can only have increased. In a national study, 80% of workers who rely on gig jobs as a primary source of income would be unable to afford loss of income, making the absence of paid leave and worker’s compensation particularly alarming. It also does not escape our notice that some of the groups most disproportionately impacted by the pandemic, particularly Black and Latinx workers, are disproportionately represented in the gig economy as well.

By statute, Connecticut already uses the ABC Test to determine unemployment compensation, and the Connecticut Supreme Court adopted its use in wage claims. However, gig drivers and other workers with flexible work arrangements are at risk of misclassification due antiquated expectations that someone who works outside the employer’s “place of business” is more likely to be a contractor. The General Assembly should amend the state’s ABC Test to account for the realities of the modern economy.

An employee is an employee, and the same test should apply for eligibility for all employee protections, including paid sick leave, worker’s compensation and family and medical leave, pursuant to any other requirements such as full-time hours.

These measures would ensure proper protections for all workers while still allowing for contracting when work is performed outside the usual scope of an employer’s business. Especially in a national environment openly hostile to the rights of these workers, as demonstrated by the DOL’s proposed rule change, coming at the same time that their work puts them at increasing risk, we need to have their backs. Connecticut workers deserve fair treatment under the law, Connecticut businesses deserve fairness in their competition, and Connecticut deserves a proper framework for employee protections in the modern economy.

Steve Kennedy is the president of the UConn Law chapter of the People’s Parity Project, an organization of law students fighting for workers’ rights, social justice and equity in the legal system.