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Coronavirus puts gig workers in spotlight. Will that help them?

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As more than 17 million American workers are out of a job, Sharon Goen, a former hospitality worker in Las Vegas, is having the opposite experience.

“I work six gigs,” she says.

These include delivering meals for Grubhub, moving parcels for Amazon Flex and Shipt, picking up groceries for Instacart, and, before the COVID-19 pandemic arrived, pouring drinks for Tend. 

And yet despite all the options for work that populate her smartphone screen, Ms. Goen like many gig workers is still feeling squeezed financially.

“We’re not making a living wage,” she says of gig workers. “With the pandemic, the pay is just lower and lower and lower.”

Editor’s note: As a public service, all our coronavirus coverage is free. No paywall.

The coronavirus economy isn’t providing any easy answers. Yes, a gradual reopening from lockdowns has partially reversed this spring’s historic spike in joblessness. But even as the Labor Department reports that the U.S. unemployment rate fell to 11.1% in June, many places including Ms. Goen’s home state of Nevada are seeing COVID-19 caseloads rise. On Wednesday, over 50,000 new cases were reported nationwide, the highest since the pandemic began. 

Despite the widespread slogan “we are all in this together,” the coronavirus has widened many class fissures. It has also prompted some soul-searching about how our society treats the gig workers who bag our groceries and deliver our essentials, often with no sick pay, protective gear, or job security.

As one Instacart customer put it on Twitter, at the very least it may be time to tip generously, given “the risks they’re taking to bring you food.”

Even as socially distanced lifestyles prompt Americans to rely heavily on some app-based platforms, many others in the contingent workforce are now jobless. That very juxtaposition – the burdened Instacart shoppers and the sidelined Uber drivers – could create a moment ripe for reassessing the rules underlying the gig economy. 

Several trends may already be pointing in this direction. Gig workers are more organized than ever. New laws are being drafted that make it harder for companies to treat their workers as disposable. And new digital platforms are emerging that give workers a bigger share in profits and decision-making. 

“In moments of great upheaval, things that seem unimaginable suddenly become commonsense,” says Trebor Scholz, a professor of culture and media at The New School who studies the digital economy.

Forming a movement

Ms. Goen herself epitomizes one of the labor market trends – growing collective action by workers themselves. A year ago, along with 10 other women around the United States who work for Instacart, Ms. Goen founded the Gig Workers Collective to advocate for stronger worker rights and protections. Now the GWC boasts 17,000 members nationwide. 

Instacart is perhaps the most iconic gig platform of the coronavirus era. The app works by connecting customers with “shoppers,” that is, gig workers who go to supermarkets to buy groceries on their behalf in exchange for a fee and, usually, a tip. The platform experienced a massive surge amid the coronavirus outbreak, hiring some 300,000 shoppers between mid-March and mid-April. 

Sharon Goen, a former worker in the hospitality industry, makes an Instacart delivery in Las Vegas on April 16, 2020. She says that her earnings with Instacart have declined by 60% to 70% over the past three years.

For the workers, one particular sore spot is the default tip setting. Instacart sets it to just 5% for first-time customers (it subsequently defaults to your last tip; if you tipped below 5%, it resets to 5%). Ms. Goen, a former Las Vegas bartender, is well aware of the psychology of tipping. She knows that the default setting plays a huge role in how customers will behave. “For Instacart to … leave it at 5% is just crushing.”

On March 30, in response to its members’ concerns over low tips, no sick pay, and the lack of protective equipment, the GWC organized a nationwide walk-off, an action that drew national media attention. To protect workers from retaliation, the GWC doesn’t keep track of how many people participated.

Instacart said the work stoppage had “absolutely no impact” on its operations, but the company did begin offering more resources, including reusable face masks and hand sanitizer. Earlier, the company offered 14 days of sick pay for shoppers diagnosed with COVID-19.

“As part of our unwavering commitment to prioritize the health and safety of the entire Instacart community,” read a statement from the company, “we’re working closely with the CDC, public health officials and retail partners to make sure we’re taking the appropriate precautionary measures to keep our shopper community and customers safe.”

But according to a report by CNET, Instacart shoppers have faced steep bureaucratic hurdles getting their sick pay approved. As of May 20, just one worker is known to have been approved for sick pay.

“There is absolutely zero transparency,’ says Ms. Goen. “Every time we have a strike action, they would act like they are giving us something, and [then] they would take it away.”

Still, Ms. Goen remains hopeful that actions by the GWC will bear fruit.

“We just want to be heard and acknowledged and appreciated,” she says. “We are the face of Instacart.”

Past work stoppages by gig workers have also shown results. The Uber and Lyft strikes of 2019, for instance, resulted in higher wages and improved working conditions for some drivers. 

These actions are occurring in a larger context of labor flexing its strength. The past two years have seen remarkably forceful worker revolts, from teachers protesting benefit cuts to tech workers walking out over law enforcement and military contracts. Indeed, the 2018-19 government shutdown finally came to a halt thanks to the efforts of a handful of air traffic controllers.

Legislation and legal battles 

A parallel trend: Lawmakers and judges are increasingly influencing the gig landscape, in some cases affirming the idea that contractor status doesn’t offer enough protections for gig workers. 

Instacart found itself under pressure on this front, too. Early in June, as part of an agreement with the attorney general of Washington, D.C., the company agreed to offer its workers paid sick leave nationwide.

In another important case, the 9th U.S. Circuit Court of Appeals ruled that the National Labor Relations Act does not prevent a state from adopting its own collective bargaining law, one that includes provisions for independent contractors.

Last September, meanwhile, California passed Assembly Bill 5, a law that classifies app-based gig workers as employees, entitled to minimum wage guarantees and other basic protections. 

The law codifies the so-called ABC test, which sets three criteria to determine whether a worker ought to be classified as a contractor or an employee. According to this standard, a worker is a contractor if (a) “the individual is free from direction and control,” (b) “the service is performed outside the usual course of business of the employer,” and (c) the “individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”

This law was tested in May at the California Supreme Court, with the state prevailing against Lyft and Uber. 

“A huge landmark deal,” says Brian Chen, an attorney at the National Employment Law Project. “Other states are going to look at that, and hopefully these state laws will be a model for the federal government eventually.”

In January, New York Gov. Andrew Cuomo hinted that his state would be pursuing a law similar to AB 5. Speaking in his State of the State address, Mr. Cuomo said, “A driver is not an independent contractor simply because she drives her own car on the job. A newspaper carrier is not an independent contractor because they ride their own bicycle. A domestic worker is not an independent contractor because she brings her own broom and mop to the job. It is exploitive, abusive, … and it has to stop here and now.”

Mr. Chen describes the battle over worker classification as a first step, not an end goal. “That fight really is to set a floor,” he says. “Strong employment laws are a precondition for workers building power.”

Rise of the co-op platform

In addition to what’s happening in the realms of labor activism, legislation, and the courts, some experts see another trend that could help reshape gig work: the rise of new, worker-friendly structures for digital-platform businesses.

Platform co-ops are worker-owned entities that rely on shared ownership and democratic decision-making. These include Up & Go, a cooperatively owned housecleaning platform in New York City, Stocksy United, a stock-photo platform based in Victoria, British Columbia, that’s owned by nearly 1,000 photographers, and Green Taxi Cooperative, an 800-person enterprise that has made significant inroads into Denver’s ride-hailing market.

The concept of platform cooperativism was introduced in 2014 by The New School’s Professor Scholz, who was researching the digital economy. 

“I don’t think I’ve met anyone who does not think this is a good idea,” he says. “It’s a question of do you want cosmetic change or do you want structural change?” 

Owned by the workers, who guide their businesses democratically, platform co-ops typically take a much smaller cut for overhead costs than do their Silicon Valley counterparts. For instance, the housecleaning and handyman platform Handy says that it takes about 20% from each transaction; Up & Go takes just 5%.

Professor Scholz sits on the board of a co-op called Fairbnb.coop, an Airbnb alternative that sends half the booking fees from short-term rentals to projects that promote social welfare in the host communities. 

“It’s not about destroying Uber or about destroying Airbnb,” says Professor Scholz of platform co-ops. “They can coexist with corporations.” But, he says, “it shows you that it can be different.”

Shifts in public opinion

Even before the pandemic struck, public attitudes about digital gig work – and Silicon Valley more generally – were beginning to sour. When apps like Uber gained popularity in the aftermath of the 2008 financial crash, they were seen as an opportunity for workers to make money via their smartphone apps while setting their own schedule. 

But by 2018, workers were reporting feeling squeezed. A study that year by JPMorgan Chase found that for Uber and Lyft drivers, monthly earnings fell from $1,469 in 2013 to $783 in 2017, a decline of 53%. Also that year, a study by the Federal Reserve found that 58% of full-time gig workers said they didn’t have an emergency $400 on hand, compared with 38% of those who didn’t work in the gig economy.

Ms. Goen’s experience reflects this downward pressure on pay. She says that her earnings with Instacart have declined by 60% to 70% over the past three years.

Instacart shoppers can make as little as $7 for a grocery run, but Ms. Goen doesn’t accept every run that pops up on her phone. “It’s 110 degrees in Vegas. I’m not starting my car for less than $20,” she says.

“Gig workers have been free falling,” she says. “It’s time for some laws to be put in place.”

The shift in attitudes is perhaps best illustrated by Governor Cuomo’s change of heart. Less than three years before calling the gig economy a “scam” and a “fraud,” he vigorously defended Uber against attempts by New York City Mayor Bill de Blasio to regulate it.

“Uber is one of these great inventions, startups, of this new economy,” Mr. Cuomo said in July 2015. “It’s offering a great service for people, and it’s giving people jobs. I don’t think the government should be in the business of trying to restrict job growth.”

Mr. Chen says the mood in 2020 is very different. 

“This is a moment when the companies’ ideological spin is starting to run out,” he says. “The bloom is off the rose.”

Editor’s note: As a public service, all our coronavirus coverage is free. No paywall.

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Who really benefits from the gig economy? – MSNBC

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The New Normal: TalkCounsel Introduces The Gig Economy in The Nigerian Legal Sector

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The Future of Hiring Lawyers During COVID-19 and Beyond for 200 Million Nigerians

Christian Nwachukwu, Cofounder of TalkCounsel

With the spread of COVID-19, most industries have adjusted their standard practices of conducting business. The legal profession is no exception, with TalkCounsel at the helm redefining the legal experience for countless Nigerians. TalkCounsel’s digital workspace hosts vetted lawyers that offer a comprehensive range of services equipped to cater to the multifaceted Nigerian community’s ever-changing needs.

It’s often the case in human affairs that the most relevant lessons emerge from the most devastating times. The onslaught of COVID-19 has made apparent the critical role technology plays in business and our day-to-day lives. The new reality arising from the ongoing pandemic is the importance of digital systems and solutions. Some organizations were in the throes of digital 

transformations pre-pandemic. COVID-19 accelerated their efforts and forced others to implement digital capabilities for the first time as a means of survival. This unprecedented period made room for rifts to be addressed by the likes of Zoom and Slack that offered tech-solutions to a world reeling from the abrupt and rapid shift to virtual operations and interactions. 

The legal community in Nigeria was not spared of the growing need to adopt tech-solutions in the advancement of lawyering. As evidence of such, several courts sitting in Nigeria adopted Zoom or Skype for court proceedings. The pandemic and restriction of human contact resulted in a burden for both the legal community and the public. Multiple clients expressed difficulty finding, hiring, and collaborating with lawyers in Nigeria remotely. The inability to do so prompted a decline in legal services requests, which affected the revenue stream for attorneys in Nigeria. 

In addressing this setback, TalkCounsel was birthed by a Nigerian-trained attorney, Christian Nwachukwu, and Gina Onyiuke in the United States. TalkCounsel is a cloud-based legal workspace that enables businesses and individuals within and beyond Nigeria to find, hire and collaborate with attorneys in Nigeria remotely without ever visiting a law office. With TalkCounsel, requesting and finding legal help has never been easier.

As legal practice in Nigeria continues to grow in size and capacity, and considering the current state of the world, it is evident that a conflation of law and technology should take place. By merging the two, quality legal services can be made accessible to the average Nigerian and prospective foreign clients in need of legal services in Nigeria during this challenging time and beyond. And all from the comfort of one’s couch using your device of choice. In altering the Nigerian legal landscape, TalkCounsel seeks to ensure that Nigeria’s legal digital future is more robust coming out of COVID-19 than it was coming in. 

Thus far, TalkCounsel has accumulated more than 1,000,000 impressions and still counting. Moreover, our strategic partnership with partners in North America and Europe will, in turn, boost the income stream for Nigerian lawyers, as well as the nation’s GDP.

To learn more about TalkCounsel, visit our website at www.talkcounsel.com



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Legal Update: Gig economy employment update – Employment and HR

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Australia’s second-largest food ordering and delivery
platform, Menulog, has recently issued a press release announcing
that it will “make a shift toward an employment model for
Menulog food couriers in Australia, in order to enhance the life
standards of couriers”, which will include:

  • investigating avenues for employment by making an application
    for a new Modern Award;

  • beginning an employment pilot program with couriers in the
    Sydney CBD; and

  • increasing support of contracted couriers by increasing the
    current insurance cover and examining portable leave entitlements
    and superannuation.

Menulog’s announcement was made while the Australian
Senate’s Select Committee on Job Security was underway, which
was established in December 2020 to inquire into and report on the
impact of insecure or precarious employment on the economy, wages,
social cohesion and workplace rights and conditions.

Workers in Australia can generally be categorised into two
distinct legal categories: employees, under a contract of
service with their employer, or independent contractors, engaged
under contracts for services with a principal. Unlike some
other countries, there is no intermediate category. The distinction
is significant, as independent contractors in Australia are not
entitled to any of the minimum rates or conditions applicable to
employees, including the minimum wage, sick leave, holiday pay, the
state workers’ compensation scheme for death and injury,
superannuation, overtime, penalty rates or casual loading.

Determining whether a worker is an employee or an independent
contractor is a complex task, with the cases showing that the
correct decision requires a multifactorial approach in the context
of the “totality of the relationship”: Jiang
Shen Cai trading as French Accent v Do Rozario
[2011] FWAFB
8307. Among the factors which the Courts have considered are the
ability to exercise control over the manner in which the work is
performed, whether the worker has a right to delegate, whether the
worker has a right to perform work for others, the provision of
benefits such as holidays and sick leave, and whether there is good
will generated for the worker.

Each case will be decided on its own circumstances. The Courts
are tasked with balancing these factors and ultimately determining
the totality of the relationship, and whether a worker is an
employee or an independent contractor (Stevens v Brodribb
Sawmilling Co Pty Ltd
(1986) 160 CLR 16 at 24).

There is an ever growing workforce engaged by companies such as
Uber (including Uber Eats), Ola, Didi, Deliveroo, DoorDash and
Menulog transporting Australians and delivering food to their
doors. Decisions about their workers have sometimes come to
different conclusions. As this article went to press, on 18 May
2021, the Fair Work Commission (Australia’s national workplace
relations tribunal) handed down a decision (
Diego Franco v Deliveroo Australia Pty Ltd)
that found
a rider for Deliveroo was an employee and not a contractor. The
company has indicated it intends to appeal.

In circumstances where –

– some employee-interest groups have levelled accusations
at Uber, Deliveroo and others of exploiting their on-demand gig
workers.

The status of workers in the gig economy is an issue of ongoing
uncertainty, with Courts and tribunals struggling to apply laws
governing the distinction between employees and contractors that
existed well before any gig-economy companies came into existence.
Can food delivery drivers riding bicycles in local suburbs really
be classified as ‘independent contractors’ in the same way
that a tradesperson who invests extensive capital and skill in
their own enterprise would?

In Klooger v Foodora Australia [2018] FWC 6836, the
Fair Work Commission found that the online food delivery brand had
incorrectly classified one of their workers (the applicant) as an
independent contractor, and found that the applicant was in fact a
Foodora employee. In reaching this decision, the Commission
considered the nature and manner in which the applicant’s work
was performed and found that Foodora had considerable capacity to
control the manner in which the applicant performed work, including
where the applicant worked and the spread of hours the applicant
worked. The Commission stated that the use of contracting
arrangements that provide for the avoidance of legal
responsibilities should be placed under strict scrutiny. As of
August 2018, shortly prior to the handing down of the
aforementioned decision, Foodora ceased operations in Australia. We
have mentioned above the most recent decision that a Deliveroo
rider was an employee.

In contrast, in Kaseris v Rasier Pacific V.O.F. [2017]
FWC 6610, the Commission held that an Uber driver was correctly
classified as a contractor, and in Gupta v Portier Pacific Pty
Ltd; Uber Australia Pty Ltd t/a Uber Eats
[2020] FWCFB 1698
(“Gupta“), the same decision
was reached for an Uber Eats driver. An appeal to the Full Bench of
the Federal Court in the Gupta case was quickly settled,
thus avoiding the possibility of a decision that Uber Eats workers
were in fact employees, and potentially the collapse of Uber
Eats’ entire business model as a result of such a finding.

The recent UK decision of Uber BV v Aslam [2021] UKSC
5, where the Supreme Court unanimously held that certain Uber
drivers were “workers” for the purposes of the
Employment Rights Act 1996 (UK), possibly influenced the
decision by Menulog, Australia’s second-largest food ordering
and delivery platform, to trial an employment model based on
minimum wages and employment conditions in Sydney’s CBD. This
announcement indicates a willingness to accept greater
responsibility for the welfare and the protection of the rights of
gig economy workers. This decision also marks the beginning of the
shift away from insecure and precarious employment relationships in
Australia’s gig economy.

Classifying delivery drivers as employees will ensure that they
are not left outside the protection provided by the National
Employment Standards, which set out the minimum employment
entitlements in Australia, and modern awards, which are decisions
of the Fair Work Commission that outline the minimum pay rates and
conditions of employment in Australia. Delivery drivers who are
classified as employees would be entitled to a range of protections
that are not available to independent contractors, such as
classification-based wage rates, additional payments for work
outside of standard hours or on public holidays, overtime for
additional hours, dispute resolution procedures, consultation
procedures and minimum engagement periods.

Menulog has recognised that it may face several challenges if
the move to an employment model is made. To avoid unintended
consequences that may arise if the restrictions in existing awards
are applied to delivery drivers, Menulog indicated that it intends
on making an application to the Fair Work Commission for a new
modern award covering the on-demand industry.

The tide may be turning for companies operating in the on-demand
gig economy. It may well be that Menulog has decided to confront
that changing tide head-on. Whether such a move will be to their
benefit or demise is something only time can tell.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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