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The Gig Economy’s Auto Insurance Market and Surplus Lines



Automobile insurance looks very different today than it did a generation ago. The means by which people (and goods) travel via motor vehicles continue to expand and evolve, as do businesses and their automobile insurance needs, especially in the gig economy and now with the current COVID-19 pandemic disruptions. No longer do individuals exclusively rely on traditional car rental companies for their temporary travel needs, as fleet-based services have grown exponentially, allowing for utilization of app-based technology to identify local vehicles for immediate use.

In addition, peer-to-peer services have carved out an impressive piece of the automobile rental and delivery marketplace, allowing individuals to share their vehicles and receive remuneration. And, of course, anyone who hasn’t been living under a rock for the last decade has seen the emergence of transportation network companies (TNCs), such as Uber and Lyft, which have substantially displaced traditional taxicab services in many localities. Even when taking a gander at automobile insurance needs of traditional, personal owners of motor vehicles, there is a growing trend toward “dynamic based” insurance pricing, where we can enjoy savings on our premiums by hitting certain driving metrics, such as avoiding traffic accidents and hard-breaking patterns.

The surplus lines insurance market and evolving motor vehicle trends would appear, at first blush, to be a match made in heaven. Surplus lines insurance companies that are eligible to write insurance on a non-admitted, surplus lines basis are not subject to the insurance premium rate, policy form filing and approval standards of the states and, as such, enjoy substantial freedom to develop specialty insurance products to serve emerging marketplaces. But the laws governing automobile insurance, in many states, were developed decades before anyone could have foreseen today’s diversity of motor vehicle products, and as a result, surplus lines insurers face substantial insurance regulatory hurdles to penetrate the automobile insurance marketplace.

The ‘Financial Responsibility’ Surplus Lines Barrier

In order to get behind the wheel, we need some sort of protection in case something goes wrong. This is typically referred to as the “financial responsibility” requirement found in state motor vehicle codes. While some states actually allow a driver of a vehicle to satisfy this requirement through the posting of a bond or deposit of money or securities, financial responsibility is of course most often satisfied through the purchase of a motor vehicle liability insurance policy containing the minimum terms and limits as required under applicable state law.

How the term “motor vehicle liability insurance policy” (or similar term under state law) is actually defined can blow up a well-intended surplus lines insurance program. For example, in New York, under N.Y. Veh. & Traf § 345, the term is defined as “an owner’s or an operator’s policy of liability insurance … [containing the terms required for] proof of financial responsibility, and issued … by an insurance carrier duly authorized to transact business in this state to or for the benefit of the person named therein as insured.” (Emphasis added).

The term “authorized” is generally interpreted under state law to refer to licensed, or admitted, insurance companies in the state, as opposed to surplus lines insurers that are generally characterized as unauthorized but nevertheless eligible to write certain lines of insurance on a surplus lines basis. Consequently, the majority of states contain in their motor vehicle statutes the implicit requirement that motor vehicle liability insurance policies be obtained from licensed insurance carriers rather than by unauthorized carriers doing business in the surplus lines market and over which insurance regulators in foreign states have limited jurisdiction.

State Insurance Codes and Departmental Opinions Provide a Surplus Lines Path

The fundamental tension that exists in determining whether surplus lines insurers can compete in the automobile space is created by the dichotomy between statutes promulgated under state automobile codes and insurance codes. In particular, in the vast majority of cases, it is the applicable state’s motor and traffic laws, rather than its insurance code, that requires automobile insurance be purchased by an authorized insurer. As a result, some states have promulgated statutes in their insurance codes or have otherwise rendered creative interpretive opinions to provide surplus lines insurers pathways for their insurance policies to satisfy motor vehicle financial responsibility requirements.

For example, Georgia’s insurance code provides that “[n]othing contained in this Code section shall be deemed to prohibit a nonadmitted insurer … to provide the minimum liability coverage for its insurance motorists who are involved in motor vehicle accidents in this state and, to the extent that such coverage is provided, such policies or contracts shall be deemed to provide the minimum liability coverage required by this chapter.” Ga. Code Ann. § 33-4-3(a)(3). However, Georgia’s motor vehicle and traffic laws run counter to the state’s insurance code and generally require automobile financial responsibility requirements be satisfied only through an authorized insurer, see Ga. Code Ann. § 40-9-37.

Oregon is a state, by contrast, that provides greater flexibility for surplus lines insurers under the Oregon Vehicle Code, thus avoiding legislative conflict. Under Or. Rev. Stat. § 806,280, “[t]he Department of Transportation may not accept a certificate of insurance for purpose of future responsibility filings from an insurer that is not authorized to do business in Oregon unless the insurer is an eligible surplus lines insurer ….” (Emphasis added).

At least one state, Arizona, has previously attempted to reconcile conflicting statutes through interpretive guidance. In particular, Arizona Attorney General Opinion No. 74-2-L (R-2) (December 19, 1974, the “Arizona Opinion”) held that surplus lines insurers can satisfy automobile financial responsibility requirements because Arizona’s insurance laws expressly recognize that “[i]nsurance contracts procured as surplus lines coverage are fully valid and enforceable as to all parties and shall be recognized in all matters in the same manner as like contracts issued by authorized insurers” (see Ariz. Rev. Stat. Ann. § 20-410). The Arizona Opinion thus concluded that Ariz. Rev. Stat. Ann. § 20-410 “impliedly amended” the state automobile financial responsibility laws that required the issuance of an automobile certificate of insurance by an authorized insurer.

The logic of the Arizona Opinion could provide a backdoor avenue for surplus lines insurers in other U.S. jurisdictions as many states have enacted statutes similar to Ariz. Rev. Stat. Ann. § 20-410 recognizing surplus lines coverage to the same extent as insurance policies issued by authorized insurers. Nevertheless, both formal and informal guidance provided by a number of states indicate that many U.S. jurisdictions do not follow the logic of the Arizona Opinion.

‘The surplus lines insurance market and evolving motor vehicle trends would appear, at first blush, to be a match made in heaven.’

For example, Nevada generally declines to follow the guidance of its neighbor and instead has said this year that surplus lines insurers are prohibited from offering first-dollar automobile liability insurance, although such unauthorized carriers can offer excess liability coverage if the financial responsibility layer is satisfied through the admitted market.

Further complicating the matter is that, even if a state insurance department blesses the satisfaction of automobile financial responsibility requirements by a surplus lines insurer, it is often not the insurance department that has the authority to provide such blessing. Rather, it is often the applicable secretary of state or department of transportation that has the final say in the matter, which can further frustrate efforts to obtain consistent positions across the United States.

Does a Surplus Lines Insurer Have Greater Flexibility for Commercial Automobile Insurance Coverage?

Some states do expressly recognize the ability for surplus lines insurers to satisfy commercial automobile financial responsibility requirements.

For example, in Oklahoma, under Article 6 of Chapter 7 of the Oklahoma Highway Safety Code, the term “Owner’s policy” is defined as a motor vehicle liability insurance policy which, among other things, “shall be issued by an authorized insurer … or in the case of a commercial automobile insurance policy may be issued by an unauthorized insurer ….” (Emphasis added).

Similarly, in 2015, the National Conference of Insurance Legislators (NCOIL) promulgated its model act to address the regulation of insurance requirements for TNCs, and in recent years, many states have followed suit by enacting legislation applicable to the financial responsibility requirements of drivers and owners of vehicles operated in connection with a TNC. In most cases, these statutes expressly allow for a driver to satisfy his or her auto financial responsibility requirements through the surplus lines market during the time when the driver is picking up or dropping off a customer. However, state TNC statutes do vary as to whether drivers that utilize application-based platforms to deliver goods or services (such as food) can satisfy their financial responsibility requirements through the surplus lines market.

Nevertheless, other than the TNC statutes that have been promulgated in a handful of jurisdictions, most states do not differentiate between automobile financial responsibility requirements of individuals driving a motor vehicle in a personal versus a commercial capacity. In such cases, prohibitions on satisfaction of financial responsibility requirements by surplus lines insurers would ordinarily apply to the commercial automobile insurance market as well. Even in states where flexibility exists for commercial auto insurance products, it is not always clear when an automobile insurance product is commercial in nature.

For example, an insurance policy provided to a driver of a fleet-owned vehicle may be considered a hybrid auto insurance policy providing both personal use insurance coverage for the driver as well as commercial insurance coverage for the commercial fleet company.

With respect to peer-to-peer car sharing programs, while NCOIL adopted its Peer-to-Peer Car Sharing Program Model Act in February 2020, such act only expressly requires that insurance be in place satisfying the state’s minimum levels of financial responsibility and that the insurance may be procured by the shared vehicle owner, driver or peer-to-peer car sharing program. However, the act does not expressly indicate that surplus lines insurers can provide such insurance coverage.

‘While surplus lines insurers face considerable regulatory hurdles to permissibly satisfy motor vehicle financial responsibility requirements, they have ample opportunities to penetrate the market in other ways.’

Practically speaking, states may be willing in the future to allow more forms of commercial automobile insurance coverage to be satisfied through the surplus lines markets.

As an initial matter, the explosion of TNC legislation in recent years nearly uniformly invites surplus lines involvement, which may hint at a trend to separate commercial automobile insurance from the prohibition against surplus lines satisfaction of financial responsibility requirements in general.

Absent an exemption under applicable law (such as inclusion on a state surplus lines export list), insurance may only be placed with surplus lines insurers when a “diligent search” of the admitted market has been conducted by the surplus lines broker in advance, and many states contain residual market mechanisms which may be more inclined to cover personal lines insurance risks rather than commercial programs.

What About Other Kinds of Motor Vehicle Insurance Coverage?

While surplus lines insurers face considerable regulatory hurdles to permissibly satisfy motor vehicle financial responsibility requirements, they have ample opportunities to penetrate the market in other ways. For example, many states recognize the ability for a surplus lines insurer to write liability insurance coverage in excess of the financial responsibility layer. In New York, the Excess Lines Association of New York has stated that automobile liability insurance “[c]an be written on an excess [surplus lines] basis but the primary coverage must be written by an admitted insurer or by a qualified self-insured retention.” (September, 2017, the “ELANY Compliance Advisor”).

Other kinds of motor vehicle insurance coverages, such as property insurance, hired and non-owned auto (HNOA), uninsured/underinsured motorist coverage and personal injury protection (PIP) are also more generally permissibly available through the surplus lines market. For example, the ELANY Compliance Advisor notes that “[a]lso, garage liability, named non-owner, [and] physical damage . . . can be written on an excess [surplus] line basis.” However, some states regulate these other forms of automobile insurance coverage under the same statutes and regulations that require the issuance of a motor vehicle insurance policy by an authorized insurer, and as such, it is important to investigate each state’s regulatory regime before concluding that a surplus lines insurer can permissibly expand its motor vehicle insurance offerings.

It should also be noted that separate state and federal financial responsibility requirements apply to “motor carriers” that transport property (or in some instances, hazardous materials). As an initial matter, the Federal Motor Carrier Safety Administration requires that motor carriers maintain minimum levels of liability insurance, but allows such insurance to be procured from a surplus lines insurer that is licensed in at least one state. On the local level, a number of states maintain separate motor carrier financial responsibility laws, and there is unfortunately little consistency between the states as to whether surplus lines insurers can play a role in satisfaction thereof, thus requiring a state-by-state analysis for exporting insurance needs to the non-admitted market.

Roads? Where We’re Going, We May Not Need Roads, But We Need the Surplus Lines Market

We may not yet have flying cars (one of only a few ways the Back to the Future franchise missed the mark), but that doesn’t mean technology hasn’t completely transformed the way we get around. The automobile industry looks completely different than it did a mere decade ago, and the demand for creative, innovative and tailored insurance products is soaring.

Yet, the door remains shut in many states for surplus lines insurers to serve the motor vehicle insurance market, and for now, only licensed insurers hold the coveted key. With the expansion of TNC legislation allowing for surplus lines insurers to play in the financial responsibility motor vehicle space, it is time for legislatures to take a new, fresh look at their motor vehicle financial responsibility laws and regulations to help surplus lines insurers provide the insurance backstop that companies, motor vehicle owners and automobile drivers need for their cars to hit the road.

Lerner is a Partner in the New York office of Locke Lord LLP and is a member of the Insurance and Reinsurance Department, maintaining a general corporate practice with an emphasis on insurance regulatory, transactional and reinsurance matters.

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Gig companies prepare to take their fight for independent work national under a more sceptical Biden administration




Still fresh off of a landmark victory in California, companies like DoorDash, Instacart, Lyft and Uber are preparing to bring their message supporting an independent workforce nationwide.

But the companies will face new hurdles in passing similar legislation outside of California. The tradition of direct democracy through ballot measures that exists in the state is less common elsewhere, meaning companies will have to win over lawmakers, not just voters. And in Washington, they will have to face a new federal administration led by a president who openly opposed the California proposition while on the campaign trail.

Nearly 59% of California voters voted yes on Proposition 22, the ballot initiative supported by the gig companies to maintain their workers’ status as independent contractors, rather than employees. The measure would save the companies costly expenses that come with an employed workforce, but it would also require them to provide some new protections for app-based ridesharing and food delivery workers. Those would include benefits they could carry between apps and guaranteed minimum earnings.

The proposition essentially undermined a California law known as AB5 that took effect in early 2020. AB5 targeted the gig companies by establishing a three-part test to determine if workers should be classified as employees.

Prior to Election Day last year, Uber and Lyft were still fighting a lawsuit from the California state attorney general in court that claimed the companies illegally maintained their workers as independent contractors under the new law. A judge had granted a preliminary injunction requiring the companies to reclassify their workers, determining that the state had a good chance of prevailing on the merits.

The passage of Prop 22 seems to have reversed the fates of Uber and Lyft in California and reinvigorated the fight for their business models across the country. The gig companies point to the relatively high level of support California voters showed for their ballot measure as a reason why lawmakers in other states should see that the independent model is supported by their constituents.

But state lawmakers working on bills to protect gig workers in places like Illinois, Massachusetts and New York told CNBC that the outcome in California does not necessarily portend the future in their own states.

Source:, Twiter

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Gig companies prepare to take their fight for independent work national under a more sceptical Biden administration

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In pandemic, business owners seek next gig | National




Willen bakes for his two dogs, Cooper and Maple — which gave him the idea for Cooper’s Treats. He sells the treats on his website and Amazon.

“It’s looking like a real business,” he says.

Kathryn Valentine closed her consulting business last summer because she had lost her child-care options. Valentine’s nanny quit to take care of her own children, and daycare centers were closed. With a baby and a toddler, the Atlanta-based mother couldn’t work the 9-to-5 schedule followed by the apparel companies that were her clients. She had to come up with another line of work — and quickly.

She already was an expert in training women in negotiating, a skill necessary for career success. Valentine had researched the subject in business school, so she founded Worthmore Negotiations and began lining up corporate clients.

“About once a week I’ll have a commitment during the day, but otherwise all my work gets done after 7 p.m.,” she says. But Valentine hopes to revive her consulting business once the pandemic is over and she has child-care again. Her hope is to keep both businesses.

A series of lockdowns in Britain forced Steve West to close his acupuncture practice. With no money coming in, he returned to digital marketing, work that helped him get through a slowdown in his practice during the Great Recession. He’s not sure when, or if, he’ll return to acupuncture, given people’s uncertainty about close contact.

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Pandemic-Scarred Restaurants And Gig Workers Fight Back Against The Delivery Apps




When James Freeman opened his American comfort and Creole restaurant in Bushwick about a decade ago, he called it Sweet Science. The term refers to the art of boxing. Not surprisingly, Freeman’s ready with a boxing metaphor to describe the hit his restaurant took the past year of COVID-19.

“Man, it took an uppercut, a rope-a -dope, you know, some jabs to the side,” he says, his voice rising in excitement. “It’s like, “Jimmy, Jimmy, how’s your ribs? Don’t touch your ribs!’”

The shutdown last March was especially painful because Sweet Science had never done any deliveries. It has a large, open dining space for more than 100 people and a horseshoe-shaped bar designed to encourage long nights hanging out with friends and neighbors.

Like many restaurants fighting to save their businesses, Freeman signed up on Grubhub, DoorDash and other third-party delivery apps. But they ate into his revenue. They were charging up to 30 percent in commission until May, when the City Council capped their fees to 20 percent during the pandemic.

Freeman said that measure helped, along with outdoor dining and limited indoor dining. But by year’s end, he had run out of government aid from the Paycheck Protection Program and was not able to pay rent. He even closed down for January. Using delivery apps could only help so much.

“Did it give me enough time to kind of to kick the can down the road? Yes,” he said. But it didn’t turn things around. “I’m actually waiting for spring, still,” he said, “so I can physically have people in here and physically have people outside.”

In the year since the COVID-19 pandemic struck New York, the restaurant industry has taken one of the biggest hits, next to arts and entertainment. An estimated 40% of all restaurant jobs disappeared last year, or about 130,000, according to a report by the New School’s Center for New York City Affairs. Restaurants that survived were heavily dependent on delivery services, one of the few sectors that saw a growth in jobs. Now, both restaurant owners and delivery workers say that growth came at a great cost and they are fighting back.

At Sweet Science, general manager Nicole Anna Dowling said losing a few dollars on every $9 burger meant less money to pay for labor and other expenses. She said the third-party platforms are taking advantage of her desperate industry.

“These are huge, faceless corporations that seem to be the only ones that have come out of this pandemic, like, with billions of dollars,” she said. “I just don’t think that they need to hurt the little guy like this. Like, what would be wrong with 10%?”

While third-party apps still are not profitable, business did surge last year for DoorDash, Postmates, and Uber Eats. Grubhub alone posted revenues of half a billion dollars in the final quarter of 2020, an increase of almost 50 percent versus the same period in 2019.

The city’s restaurant industry is now pushing for a lower, permanent cap on the third-party app fees statewide. But Grubhub spokesman Grant Klinzman said fee caps all around the country cost the company a total of $50 million in the final quarter of 2020.

“Caps limit how restaurants, and especially small and independent establishments, can effectively market themselves to drive demand and therefore severely limit how many customers and orders we can bring to these restaurants,” he said.

Limiting Reliance on Apps

At the Handpulled Noodle, a tiny eatery in Harlem, owner Andrew Ding said most of his business always came from takeout and deliveries because there is so little space to sit. He specializes in homemade noodles and dumplings with flavors from northwest China.

Ding has used Grubhub, Uber Eats, Postmates, DoorDash and Seamless. A couple of years ago, he got tired of the platforms’ high fees, and customers sounding off about meals being late.

“I was desperate to switch,” he said. “We were the front person for all of the complaints.”

Ding signed up with a delivery-only service called Relay that can operate with the apps. For example, on an order placed with Grubhub, he pays only the 5 percent marketing fee and then pays Relay 10 percent plus $3, which he can pass along to the customer. Ding estimates this cost him 35 percent less during the pandemic than GrubHub’s delivery service.

“I think I was just lucky that I found Relay before the pandemic,” he said.

Ding likes that Relay lets him track the driver on his phone or tablet, enabling him to answer questions from customers wondering when their food is coming. He cannot do that on the third- party apps. He also included leaflets with each delivery urging customers to help him save money by ordering meals directly from his website, which doubled his business there.

Overall, he said the Handpulled Noodle not only survived 2020 but made about 5 percent more money than in 2019. His sitdown restaurant, Expat, lost money. But he does not believe he can abandon third-party apps completely.

“You would be turning the lights off on a big portion of your customer base that’s out there that have become very dependent on these platforms,” he said.

Instead, Andrew Rigie, executive director of the NYC Hospitality Alliance, said the pandemic pushed restaurant owners to figure out ways to become less reliant on the apps.

“Restaurateurs have been looking at ways to help reduce their costs, streamline their delivery, and ensure that as many orders are going through their own channels as possible to reduce the additional fees and also to ensure that they have ownership of the customer data,” he said.

The apps are responding to this pressure from restaurants. DoorDash offers delivery-only now plus other services for restaurants looking to reduce their fees. Grubhub started a $100 million pandemic relief program to lower restaurants’ commissions, but it was criticized for locking them into contracts. Uber Eats allows restaurants to use their own staffers for deliveries.

The number of city eateries using Relay jumped 70 percent last year, according to Alex Blum, CEO and founder of the New York-based company.

“We had record numbers of restaurants signing up,” he said. However, he said a lot were “restaurants that typically have never done delivery.”

These new clients did not do a lot of volume, and he said orders from Manhattan office workers dried up. As a result, Blum said Relay’s revenues declined by 20 percent last year.

More Jobs and More Demands by Workers

The delivery sector is one of very few city industries that hired more people during the pandemic. According to the New York State Department of Labor, there were 21,900 delivery and courier jobs in New York City in 2020, an increase of 8.4 percent from 2019 and the largest jump since 1990.

But those are only payroll jobs. They don’t include the gig workers at third-party apps, who are classified as independent contractors and were in great demand.

“It would not be unthinkable that the total numbers now are around 80,000,” said Maria Figueroa, director of labor and policy research at the Worker Institute at Cornell University’s School of Industrial and Labor Relations.

Figueroa bases that on the number of commercial cyclists who were registered before the pandemic, plus an estimated increase.

Like the restaurants, these workers needed the apps to survive. Also like the restaurants, they felt exploited. They include many low income immigrants and people of color at the greatest risk of contracting COVID.

A delivery cyclist rides through the snow next to a shuttered outdoor dining setup in the East Village during last month's snowstorm.


A delivery cyclist rides through the snow next to a shuttered outdoor dining setup in the East Village during last month’s snowstorm.


Lucina Villano said she bought her own delivery bag, helmet and specialized winter clothes to ride around on her e-bike. The 31 year-old Mexican immigrant lives in Washington Heights and used to work in a restaurant. A couple of years ago, Villano switched to delivering for DoorDash and Relay because she has a young child and wanted more flexible hours. But the work got harder in the pandemic.

“They no longer allow you to use the restrooms,” she said, in Spanish. “You have to take your breaks outside, even if it is cold.”

She also complained that she rides long distances because Relay doesn’t let her see where she is taking a delivery in advance, only the restaurant’s location. If she opts out she risks losing more jobs.

Villano is in a group called Los Deliveristas Unidos. It was organized last fall by the Worker’s Justice Project, which is lobbying the City Council for a law requiring bathroom breaks, sick pay, personal protective equipment, hazard pay, and the right to access full receipts to prevent tip theft by the apps. (Some third-party apps are now providing free and reduced-cost safety equipment for workers and bathroom access.)

Ligia Guallpa, executive director of the Worker’s Justice Project, said real independent contractors set their own rates but gig workers cannot. She calls the apps “disruptors.”

“They’re not really paying minimum wage, which is in New York, $15 an hour,” she explained. “What they’re offering is opportunities to work without a wage and without essential rights.”

DoorDash, Grubhub and the others typically pay for each delivery item, plus tips. Drivers said they can make $20 an hour or more when they are busy but there is no guarantee. Relay is unique in paying a fixed hourly wage of $12.50, plus tips. Blum said this hourly wage is one reason his workers do not get to choose which destinations they can deliver to in advance.

Several delivery companies have been accused of stealing workers’ tips, and Relay settled a lawsuit after being accused of not paying overtime.

A national debate is underway about whether gig workers should be independent contractors or employees. California passed a law requiring them to be paid healthcare, unemployment, and other benefits. But that law was overturned by the ballot initiative Proposition 22 in November with backing from Uber, Lyft and DoorDash.

Those tech companies are now gearing up for similar battles in New York and other states. DoorDash, Uber and Lyft have joined local business groups, plus Rev. Al Sharpton’s National Action Network in a group called the New York Coalition for Independent Work. They are lobbying for gig workers to remain independent contractors. They argue most do not want to go full-time and that the industry can help them in other ways.

“This includes supporting modern legislative solutions that protect worker independence while extending benefits and protections,” the coalition said in a statement. It has not provided any specifics, though, about which benefits or how they would be funded.

Relay’s Blum, who is not part of the coalition, said he sympathizes with the workers. “I think what’s happening is you have a small minority that do see this as kind of like their full-time thing that want to, essentially, push a change onto everyone else,” he explained.

However, since his delivery company and the third-party apps have yet to turn any profits, he said it is impossible to expect them to hire the drivers as full-time employees.

Figueroa, who is on the board of the Worker’s Justice Project, said there are other ways to help workers besides reclassifying them. New York City has a minimum pay standard for Lyft and Uber now. Those drivers are independent contractors, just like restaurant delivery workers.

“It is possible to accommodate a certain level of protections,” she said. “And the way those are funded are really by increasing the fees that are charged for each delivery.

But those added fees would have to be paid by someone, at a time when the restaurant industry is hurting. As lawmakers in New York City and Albany consider changes, in the wake of the pandemic, restaurants, gig workers, and the apps are all fighting to shape the jobs of the future.

With translation assistance from WNYC’s Marcos Sueiro Bal

Beth Fertig is a senior reporter covering the city’s recovery efforts at WNYC. You can follow her on Twitter at @bethfertig.

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