Charles Krupa/AP Photo
An Instacart worker leaves groceries at the gate of a North Hampshire home earlier this month.
This article is part of our symposium on “The Future of Labor.”
Late last month, Instacart workers went on strike to protest the company’s refusal to provide them with rudimentary personal protective equipment, such as hand sanitizer and disinfectant wipes. The CDC has made it clear that these basic items are necessary protections for frontline workers and their customers. Instacart workers—along with thousands of other so-called independent contractors who work for platform companies like Uber Eats, DoorDash, and Amazon Flex—are not protected by federal workplace health and safety laws or many other foundational labor standards.
Around the same time, Dr. Ming Lin, an emergency room physician in the coronavirus hot spot of Bellingham, Washington, was fired after advocating for more medical supplies for his fellow health care workers at the facility where he had worked for 17 years. That removal order came not from PeaceHealth St. Joseph Medical Center, the hospital where he worked, but from a staffing agency called TEAMHealth, which was actually his direct employer. PeaceHealth refused comment on his dismissal because he was not their direct employee.
From gig workers to medical doctors, a minimum of 25 million workers in the U.S. face barriers to standard workplace protections like unemployment insurance, workers’ compensation, and such basic protections as minimum wage and overtime. That’s because they either are classified—sometimes falsely—as independent contractors or, like Dr. Lin, work at arm’s length from the organization where they do their job, as they are formally employed by staffing agencies, third-party managers, or subcontractors.
These arrangements, which I have called “fissured workplaces,” release the parties that most directly benefit from the work these people do from many of the legal obligations to follow standard employment and labor laws. As responsibility becomes murky, accountability fades for providing safe workplaces, payment of minimum wages and overtime rates, or protections for the right to speak out in the face of dangerous conditions.
Muddying responsibility and shirking risk in this way not only directly impacts workers’ health and economic well-being, but also forces these workers to make private choices that can have devastating social consequences. A DoorDash driver may decide to work in order to pay rent even if they feel sick, thereby exposing their customers to risk. A subcontracted health care worker in a hospital under similar pressures may make choices that undermine the efforts of the facility where he or she works.
The COVID-19 crisis and the deep economic recession accompanying it require us to provide broad protections to all workers: We need workers to be paid—and paid adequately—for delivering food to elderly neighbors and people at risk. We need workers—regardless of employment status—to use paid sick days if they are ill, rather than exposing others to potential contagion. We need those working in essential occupations, whether medical professionals like Dr. Lin or workers delivering food to those in quarantine, to be able to exercise their right to voice concerns over health and safety and other workplace conditions without fear of reprisal. And we must ensure that the astounding 26 million people who have already lost their jobs in the early days of this recession, and the millions more to come, have access to unemployment insurance so they can sustain themselves and continue to participate in their local economies.
The CARES Act provides long overdue recognition of issues that come from the fissured workplace. It extends unemployment benefits, for the first time, to contractors, self-employed workers, and others who have fallen through this part of the safety net. However, only ten states currently are processing claims made by these groups of workers, and many early claimants report being denied benefits. Unemployment insurance systems are administered separately by the 50 states, each with its own rules. Even under normal conditions, expanding coverage to contractors would be challenging, since each state has its own definitions of employment, administrative systems that process claims, and resources to provide benefits. With unemployment at its highest level since the Great Depression, the failings of a decentralized system to deliver safety-net protections to displaced workers are manifest.
The COVID-19 crisis and the deep economic recession accompanying it require us to provide broad protections to all workers.
The Families First Coronavirus Response Act, like the CARES Act, also broke new ground in federal law by providing paid sick leave and emergency family leave for workers affected by COVID, and by allowing self-employed workers to claim a tax credit for taking paid leave. Unfortunately, the Labor Department has provided little outreach to workers or covered businesses about their rights and obligations under the new law. In addition, draft regulations released by the Labor Department narrowly interpret the reach of these provisions, creating stumbling blocks for workers seeking to file for leave and allowing ample exemptions to businesses to get out of coverage.
After this acute crisis passes, we must confront the reality that our existing workplace policies no longer account for the millions of workers with jobs (often multiple jobs) that do not fit the narrow definitions of employment embodied in federal and state laws. Today’s workforce—and those displaced from it—requires core protections linked to work, not just employment, in areas like assuring a safe and healthy workplace, receiving a minimum wage, and being protected against retaliation from exercising rights granted by our laws. This crisis also reveals the long-term need for wide access for all workers to safety-net protections like unemployment insurance and workers’ compensation as well as to comprehensive paid-leave policies that protect workers, their households, and the wider community.
If the COVID-19 pandemic leads us to recognize the social and economic consequences of treating too many workers as expendable, at least some good will arise from this difficult crisis.
