Bill will include emergency provision to make sick days immediately available for workers for Uber, Lyft, DoorDash, Seamless, Instacart and other platform companies.
New York, NY—Today, New York City Council Member Brad Lander announced his plan to introduce a bill to expand the New York City Earned Safe and Sick Time Act to extend paid sick leave to workers for gig companies, as well as other workers who have been misclassified as independent contractors. Such workers include Uber and Lyft drivers, Amazon Flex delivery drivers, food delivery workers, nail salon technicians, home care workers, janitors, and others.
“During this urgent public health crisis, we must extend paid sick leave to workers for gig companies. They are helping to keep us afloat through home deliveries and other essential services, and yet we aren’t even extending them basic health protections,” said Council Member Brad Lander. “Workers need to be able to stay home when they are sick, or to care for sick loved ones without losing income. We cannot allow the business model of a few billion-dollar corporations to shred our social safety net.”
Gig workers were not included in yesterday’s paid sick leave bill passed by the New York State Legislature, which only covers traditional employees, and they are not included in legislation passed by the U.S. Congress for the same reason. Lander, who has sponsored legislation strengthening protections for independent contractors (providing a minimum pay rate for for-hire vehicle drivers, and wage theft protections for freelancers) says that New York City has the power to extend sick leave coverage beyond the state or federal labor law under the same authority as those previous bills.
The New York City Earned Safe and Sick Time Act, which went into effect in 2014, gives employees up to 40 hours of sick time in a year to recover from physical/mental illness or injury, seek medical treatment, or care for a sick family member. Currently, the law covers “employees” as defined by New York Labor Law, which utilizes a vague test that bad actor employers have long manipulated to cut payroll costs. Many workers in New York City are improperly classified as independent contractors rather than employees and have therefore previously been ineligible for benefits such as paid sick time.
Lander’s legislation will amend the NYC Safe and Sick Leave Law to expand coverage by utilizing a simple test, known as the “ABC test,” to clarify who is an employee so that a greater number of workers will be eligible for the city’s paid sick time. That test includes gig workers and others whose labor builds someone else’s business rather than their own enterprise.
More than 850,000 low-paid workers in the state may be improperly classified as independent contractors. Because of their classification, they have lost critical labor rights and protections under state law. Advocates are urging the New York State Legislature to extend the Fair Play Acts, which utilizes the ABC test and is already are effective in construction and commercial trucking, to cover—broadly, as appropriate—all workers who should be employees. While expansion of the New York City Earned Safe and Sick Time Act will provide immediate assistance to many additional workers in New York City, the State Legislature must address the underlying loopholes in the state’s Labor Law that allow employers to dispossess workers in all industries of rights and protections. Doing so will reclassify many workers as employees and properly make them eligible not only for paid sick leave, but also for employer-sponsored health care, workers compensation, unemployment insurance, social security, and other benefits. Council Member Lander will also be introducing a resolution in support of this effort at the state level.
Lander plans to include an emergency provision that would immediately provide paid sick leave to workers for gig companies like Uber, Lyft, DoorDash, Amazon Flex, and Instacart who have been paid over $5,000 in the past twelve months. On the model of the existing law, these workers would be entitled to one hour of sick leave for every 30 hours they have worked. This would enable these workers to take paid sick leave immediately, during the COVID-19 crisis, based on hours they have worked over the past year. Going forward, workers would accrue as they work, just as other workers do.
Earlier this month, Lander and others called on gig companies to provide paid leave for their workers voluntarily during the COVID-19 crisis. Several of the companies have responded by granting a narrow sick leave policy that offers sick pay only for workers who have been positively identified as having COVID-19. However, in the absence of broader testing, that benefit is not available to the vast majority of workers, especially while the advice of health care professionals is to stay home if you are feeling sick, rather than to go get tested. Lander’s legislation would mandate and broaden the benefit.
As gig worker Mariah Mitchell, member of Working Washington, wrote in the New York Times this week: “We needed these protections before the crisis hit, and we need them now more than ever. In a way, gig workers are acting as first responders — making sure people can go to the doctor, and get food and supplies if they need to stay home…There are so many unknowns for us, and I need to know I’ll still have an income if everything shuts down, or if someone in my family gets sick. I can’t self-quarantine because not working is not an option. If I don’t make enough money, I can’t feed my children for the next six weeks.”
Yanelia Ramirez, nail technician and member of NY Nail Salon Workers Association, said: “As a nail salon worker, I work with clients everyday. The salon I work at has misclassified me as an independent contractor which means I don’t have basic workplace protections. There is a high likelihood that I could get sick, but I wouldn’t be able to take off because my family depends on me. This bill would provide some assurance that I could take care of myself and my family without putting others at risk.”
“While New York State has already made a final determination that three of our Uber driver members and all those similarly situated are employees, the state has failed to uphold its own law,” said Bhairavi Desai, Executive Director of the New York Taxi Workers Alliance. “The state also left app drivers and other misclassified workers out in the cold when they passed the new sick leave law yesterday. The federal government and the state have abandoned workers among the fastest growing sectors of the economy who are also among the most vulnerable workers in our economy. The longer cities and states abdicate their responsibility to hold employers accountable, the more workers suffer and the more taxpayers have to front the costs. App drivers are at the frontlines of this current crisis and need immediate and meaningful sick leave — now and always. We applaud Council Member Lander for taking up the mantle and holding these billionaire companies accountable to the law and to their workers.”
Deborah Axt, Co-Executive Director of Make the Road New York, said: “The vast majority of Make the Road New York’s members – the low-wage and immigrant workers who provide the critical cleaning, child and elder care, food service and other critical services that keep the city running – are employees under the law, but their employers can too easily frustrate their legal responsibilities to their workforce, including providing paid sick days, by claiming they’re independent contractors. Extending the ABC test to the paid sick days law is a common sense measure to prevent these employer tactics and safeguard the health and safety of our communities, which is even more crucial now.”
“Freelance journalists, photographers and videographers are working around the clock right now to keep us informed in this time of crisis. Too many of them are working with zero protections on the job — despite taking daily risks to their health and safety to report on the pandemic — because their employers treat them as independent contractors instead of employees. Council Member Lander’s bill will go a long way toward righting this injustice,” said Larry Goldbetter, President of the National Writers Union/UAW Local 1981.
Brian Chen, Staff Attorney for the National Employment Law Project, said, “For decades, since well before the coronavirus pandemic exposed the weaknesses in our social safety nets, many employers have willfully cheated the system and called their workers “independent contractors.” That means workers lose the security and stability that a job should provide. As we’ve seen in recent weeks, when people lose vital protections like paid sick leave, it’s a risk not only to workers but to public health. We’re pleased to see Council Member Lander stand with low-paid workers by using a presumption of employment test that has already proven effective at the state level.”
“We commend Council Member Lander for introducing this critical bill to extend paid sick leave to workers for gig companies and workers who have been misclassified as independent contractors”, said Richard Blum, Staff Attorney in the Employment Law Unit at The Legal Aid Society. “As the COVID-19 pandemic continues to grow, these individuals will be among the most impacted and the least protected. We must pass meaningful legislation so that the people whose labor helps keep our city running are protected when they most need it.”