The Wild West: Gig workers on the front lines of the coronavirus pandemic lack basic worker protections

In the safety of our homes, those of us lucky enough to be healthy and have disposable income are searching websites for the best food delivery options, clicking on the pad thai and pizza choices that will soon arrive at our door. We wash our hands after touching the delivery bag and enjoy our dinner in front of the latest Hulu or Netflix binge offering. But what about the Uber Eats driver who dropped off the food? Not only are these workers exposed to customers and restaurant workers who might be sick with COVID-19, but these workers lack paid sick leave, health care, or unemployment protections through their employer because Uber—as well as so many other companies we depend on right now, such as Instacart, Lyft, and Amazon—classifies many of its workers as independent contractors not entitled to regular employee benefits.

Right under our noses, every day, these men and women toil without any of the basic job safety or security protections we take for granted. Independent contracting is the Wild West of the workplace. No law applies. None. While lately, Uber, Lyft, and Amazon have been in the news for filling a critical role in delivering supplies to a homebound nation, until recently news on their employment practices has focused on lawsuits accusing them of misclassifying their workers as independent contractors. California has even passed a law, AB5, that would make sure these workers are considered employees with full protections, but the gig employers are defying the law and spending tens of millions of dollars to repeal it in a November referendum. Some gig employers defend their practices as simply a byproduct of the “gig” economy and a natural development from the greater use of technology. But in reality, this is just an old dog doing a new trick: These workers are clearly employees. The same regime applies to many other workers we interact with every day, from janitors to manicurists and hairstylists.

When the New Deal laws were drafted, few could have imagined the creativity of the American employer. At its inception, the Fair Labor Standards Act (FLSA), which requires a minimum wage and time-and-a-half overtime pay, was written to apply only to “employees,” because no one anticipated how that term would be manipulated. But the FLSA helped set in motion the legal contortions used by employers today, by giving companies an avenue to pay less than the minimum wage and avoid overtime pay by insisting that their workers are independent contractors, not employees.

In addition, later employment laws—such as antidiscrimination statutes, the Family and Medical Leave Act, and the Affordable Care Act—apply only to large firms, giving companies an additional reason to classify some number of workers as contractors. The combined impact of protecting only “employees” and applying the legal requirements only to larger firms gives employers a financial incentive to shed employees by designating workers as independent contractors or by hiring temps. To that end, employers have devised creative structures—with holding companies, shell operations, and franchises—to continue to avoid any liability for minimum wages, overtime, compliance with anti-discrimination laws, or unemployment insurance, Social Security, and disability payments. Independent contractors are also barred from organizing together to protest working conditions or obtain collective bargaining. The firms are bullies, pursuing illegal business models until someone forces them to do otherwise, all the while saving 20–30% on their labor costs.

Revamping hiring practices to create “lean and flexible” workforces, business leaders have helped speed the segmentation of the workforce, such that some workers, designated as “employees,” have full benefits and decent wages, but most workers are contractors and have neither, a dynamic labeled “fissuring.” In a 1995 law review article, Jon Hiatt, former chief of staff at the AFL-CIO, perceptively described this weakness in our legal system as one that allows companies to “distance themselves from the exploitation of the low-wage workers while benefiting from their exploitation.”

With the United States now the country with the most COVID-19 patients and a climbing death rate, people across the country under stay-at-home orders are turning more and more to the services that depend on this workforce. Lacking protective gear, not to mention decent pay, some of these workers are starting to push back. Last Monday, Instacart workers stayed off the job, demanding better pay and sanitary measures to keep them healthy.

Perhaps this crisis will force us all to recognize what one Instacart worker made clear: Keeping them safe keeps us safe. “We are not just walking off to protect ourselves, we are walking off to protect our customers,” said Vanessa Bain, 34, an Instacart worker in Silicon Valley. “Workers are touching every single thing that a customer receives in their order. If we get sick, invariably that means they are going to get sick too.” But hopefully, this pandemic will also prompt a reevaluation of our employment regime and the widespread exploitation by companies of the “nonemployee employee.” American exceptionalism in this case is shameful.

But it is not just the so-called contractors who are underprotected and undervalued. We lack paid sick leave and family leave for many who may be deemed “employees,” and we put our workers on the front lines without basic health and safety protections by failing to enforce OSHA and denying health care workers critical protective gear. All workers deserve fair and decent treatment—but none more than those who are putting their lives on the line to keep us healthy, fed, and safe.

Caroline Fredrickson is a senior fellow at the Brennan Center for Justice. She served as the president of the American Constitution Society (ACS) from 2009–2019.