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Long-term-care homes needed staff during COVID-19. So they turned to gig workers. Inside the ‘Uber-ization’ of health care

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The Facebook posts began in the fall: health-care jobs on demand.

The source was a company that once filled shifts for kitchens and caterers. Now, there was a new area of need: outbreak response.

Staffy is an app, not a temp agency, its ads say. Its “on-demand platform” boasts qualified health-care contractors — not employees — who can be approved to work within 24 hours and enjoy “full control” over their schedules and pay rates.

“You decide your worth,” read Staffy’s job posts.

To proponents, it’s a modern solution for a sector besieged by staffing issues and pushed to crisis point by COVID-19. To critics, it’s an extension of a long-standing problem undermining care standards: precarious employment.

“When people talk about the Uber-ization of everything, this is what they’re talking about,” said Josh Mandryk, a labour lawyer with Toronto-based Goldblatt Partners.

As temp agencies fill critical staffing gaps caused by COVID-19, some workers delivering essential care across the province are now classified as independent contractors — who are not entitled to basic workplace protections like overtime pay or a union.

The classification is a key feature of platforms like Uber, who say they are not employers. And Staffy is not alone: others have adopted the model, from home care providers to staffing agencies to Toronto-based BookJane — a platform describing itself as “the world’s first gig economy for care communities.”

But some experts say the gig economy doesn’t belong in health care, and risks not just working conditions, but the training and oversight needed to keep caregivers and residents safe.

“When you have this kind of casual model, you have a lot of turnover,” said Cynthia Cranford, an associate professor of sociology at the University of Toronto specializing in care work and inequality.

“You have workers who are being sent to many different clients,” she said. “There are huge implications for the quality of care.”

Job posts on Staffy.

In a statement to the Star, Staffy said it has a dedicated onboarding team that verifies workers’ credentials including immunization history, criminal record and vulnerable sector checks, and regulatory body standing where applicable. The company says it has carefully followed public health guidance on COVID precautions, including enforcing an order to limit nursing home workers to a single location, even though agencies are not required to.

“The fact that we are providing healthcare staff on site more quickly, where needed, and workers are making more money for their efforts, are all silver linings when you consider that the pandemic has created an incredible need for our kind of agility,” founder Peter Faist said.

The model has influential backers. BookJane, for example, recently attracted a $1-million investment from long-term care provider Revera. Former provincial deputy health minister Bob Bell is an unpaid adviser to Staffy, which in a statement to the Star he called “the kind of innovation we should encourage across our publicly funded system.”

But to Matt Cathmoir, head of strategic research at Service Employees International Union (SEIU) Healthcare, it raises “serious alarms” about residents’ care and secure jobs for essential workers.

“The gig economy should not be in health care. It’s bad public health.”

Staffy launched in Toronto in 2016, building its success in the hospitality world based on its technology and transparency, said Faist. But by last March, amid pandemic restrictions, shifts on the app plunged by 95 per cent.

That’s when Staffy started emailing health-care organizations with a simple question: was there any work on offer?

The answer, of course, was yes.

COVID exacerbated a simmering problem. As outbreaks swept through long-term-care homes in the first wave, some 38 homes across Ontario reported “critical” staffing shortages, a study commissioned by the province found. One home reported as many as 60 vacant personal support worker shifts daily.

The result was a deepened dependence on temp agency recruits. This came with risk, York’s medical officer of health, Dr. Karim Kurji, told the province’s long-term-care commission. That body is mandated to investigate the spread of COVID in LTC homes.

“We certainly saw a problem with agency staff with regards to lack of proper (infection prevention and control) preparedness,” he said in a February hearing.

Staffy says it does not consider itself a temp agency. Its website calls its app “the un-agency” and the company says it has “upended the traditional temp agency model.”

The company registered at the workers’ compensation board as a temp agency in 2015, according to records obtained by the Star. Faist said that is because the board’s “limited options” do not include “app-based platform or marketplace.”

The pandemic "has created an incredible need for our kind of agility," says Staffy founder Peter Faist said.

Staffy says its workers are independent contractors, free to pick up shifts when they like. They set the hourly pay they are willing to work for and the app then matches them with jobs in their range; the better workers’ rating on the app, the more quickly they get paid.

Staffy does not provide workers with training, including on COVID precautions; those using the app already receive this training as “part of their education” as health-care workers, said its chief operating officer, Sharon Lee Smith, a former associate deputy minister at the Ontario Ministry of Health and Long Term Care.

Workers are also expected to provide equipment. In one posting for shifts at a Revera-operated LTC home seen by the Star, workers are told to bring a face shield — although the posting says the home will provide one if they cannot.

If these characteristics make Staffy workers contractors, they also raise questions for SEIU’s Cathmoir. He believes the health system needs more secure, full-time jobs where staff can bond with those in their care.

“This is exactly trending in the opposite direction where we believe the industry needs to gravitate towards.”

It’s an extension of problems experts have flagged around the use of agency staff, who may be deployed to unfamiliar environments with little notice. The gig model goes one step further: app workers are not considered employees.

Gig platforms walk a delicate line. If they are truly not employers, the law mandates a hands-off relationship with workers. But health care, especially amid a pandemic, demands oversight and accountability.

Curtis Khan, founder of the app BookJane, a Toronto-based platform that calls itself "the world's first gig economy for care communities."

Like Staffy, Toronto-born platform BookJane says it provides a robust vetting and screening process — of up to six weeks, according to CEO Curtis Khan. Workers who sign up to use the platform are self-employed; the company also works with temp agencies to fill shifts.

But one worker interviewed by the Star said he was hired by a temp agency as an independent contractor and sent to a retirement home experiencing a COVID-19 outbreak. The worker said he was asked to sign up for BookJane, and within one day, he was approved by the app to start looking for jobs and accepting shifts as a personal support worker. While his agency required a criminal record check, the worker had no credentials, experience or training.

In a statement, Khan said agencies working with BookJane sign a “master service agreement” confirming caregivers have the required “qualifications, certifications, and trainings.” BookJane retains “audit rights of these qualifications and certifications.”

“Before workers are able to join BookJane’s platform and accept shifts, they have already been vetted by an agency,” said Khan.

Cathmoir believes the system lacks rigour.

“Families should be concerned about the quality of care for their aging parents,” he said. “There’s no continuity of care … and also you don’t know if they’ve had the same training that our members have had.”

To Staffy, efficient service is a selling point, allowing employers to “see help arrive as quickly as 90 minutes.” The company says most placements are between two weeks and a few months, and workers must present a negative COVID test within a week of starting a placement. Staffy says unlike many temp agencies, it enforces the province’s single-site order by requiring app users to “formally attest” they have not worked at another facility for the past two weeks.

“If they do not complete the attestation, they may not apply for shifts on Staffy,” the company said in a statement.

But while apps describe themselves as the alternative to temp agencies, they share at least one thing in common with some: the way they classify workers.

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While the gig economy may conjure images of an iPhone app, PALS Staffing is distinctly analogue. Its offices sit in a quiet corner of a Scarborough strip mall; its online footprint is small.

It’s a temp agency that specializes in deploying health-care workers to shelters, group homes, and care settings across the city. It also owes some of those workers $63,000, after a Ministry of Labour inspector recently found the agency had misclassified 147 of them as independent contractors.

Employee misclassification is illegal; it disenfranchises workers from protections as basic as minimum wage. Deena Ladd of the Toronto-based Workers Action Centre began noticing an uptick in health-care workers designated independent contractors several years ago, before apps arrived.

To Ladd, it was not because they were truly self-employed — the designation saved workplaces money. “It’s skimming off people who do really important work.”

Last April, as COVID’s grip tightened, a labour inspector ruled PALS had wrongly designated its pool of part-time, minimum wage workers as contractors. Over the six-month period audited, some of the part-timers routinely worked over 50 hours a week. As independent contractors, they received no overtime.

PALS Staffing's offices sit in a quiet corner of a Scarborough strip mall opposite an apartment block and a Chinese restaurant. The agency that specializes in deploying health-care workers to shelters, group homes, and care settings across Toronto.

But the PALS workers weren’t self-employed, the ministry found. They used the equipment provided at work and could not set pay rates. While they could accept or reject assignments, the agency negotiated those job placements with clients.

One PALS worker who spoke to the Star anonymously for fear of reprisal said she was initially hired as an employee of the agency. Then, in 2018, the province increased the minimum wage to $14 an hour. That was when the agency presented staff — mostly new and racialized Canadians — with an independent contractor agreement.

“I had to do it because I have to pay rent and I have to live and I have to look after my children,” she said.

PALS director Tayo Alliu said she could not respond to a detailed list of questions because the agency is contesting the ministry’s decision at the provincial labour board. In submissions, the agency said workers agreed to its terms and fit the legal definition of a contractor.

Unlike PALS workers, Staffy says those using its platform can set their own pay rates (although some of its postings specify the range on offer). And unlike PALS, the rates are often far above minimum wage; one ad lists PSW contracts paying $25 to $60 an hour.

Staffy says it is an improvement on “traditional staffing agencies” that charge clients significant markups on workers’ wages, while the app’s fees “amount to less than 5 per cent” of hourly rates.

But to Ladd, it doesn’t matter whether workers accept shifts through an app or an agency: ultimately, they have little power over opportunities available or conditions on the job.

While apps may be more hands-off, that does not necessarily mean workers are true independent contractors — who essentially function as mini-entrepreneurs, said Mandryk, the labour lawyer.

“The core question that cuts to the heart of the issue is, whose business is it?” he said. “I think when you ask that question, it’s clear that these folks are not independent business people.”

Ads for the staffing app Staffy, which stresses that is is an app, not a temp agency.

The scale of pandemic response demands solutions, and to some organizations, apps have provided one. Staffy and BookJane partners, according to their websites, include major private care operators like Revera and Chartwell.

Recently, University Health Network also turned to Staffy nurses to help deliver its COVID vaccination program, because the clinics “are in addition to all of the care we provide in the hospitals and wouldn’t be possible without using agency staff,” said spokesperson Gillian Howard.

BookJane has also partnered with Peel Region in its vaccination rollout, connecting vaccine clinics with doctors.

To the U of T’s Cranford, technology is not the enemy: “I don’t think we should be Luddites.”

But the introduction of a for-profit, gig economy model is of concern, she said, in part because apps often result in precarious workers being excluded from basic protections.

“The profit motive would need to be taken out of it,” she said. “There would need to be some kind of mechanism for workers and the people receiving (care) to have input into what the app looks like and how to run the system.”

It also requires strong enforcement to ensure workers are not misclassified, said Ladd.

Other jurisdictions have taken note. New York state, for example, set up a task force specifically mandated to fight misclassification as early as 2007. Problem areas the force identified included a critical part of the health system: home care.

In the GTA, more than a third of home care workers — some 55,000 — are classified as self-employed, according to city statistics.

While a proactive ministry inspection caught issues at PALS, Ladd says the overall response to the trend has been frustratingly slow. “If it’s not proactively taken on by the Ministry of Labour, the wedge becomes bigger and bigger and bigger. And then soon, you start to see sectors transform into this.”

In a statement, ministry spokesperson Kalem McSween said employment standards inspectors check employers every day for compliance. But the ministry hasn’t conducted any employment standards blitzes in the health-care sector since at least 2017. Nor have any blitzes focused specifically on employee misclassification during that period.

“It’s critical that action be taken right away,” said Ladd. “Because workers aren’t in a situation where they can individually challenge that employment relationship because it basically means them losing their job.”

There is no doubt, said Cranford, that many people receiving care need flexibility in the services they receive to live “a valuable, meaningful life.” But that should not translate into insecurity for workers, she said, who may be forced to choose between earning a living and safety considerations amid a pandemic.

To Cathmoir, an app does little to erase that choice.

“When it comes to delivering personal care services to vulnerable populations, it is not revolutionary,” he said. “It’s the opposite.”

With files from Jennifer Yang

Saturday, Part 3: He did the jobs no one wanted — and regrets it



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Ruling in arbitration case bad news for gig workers – Massachusetts Lawyers Weekly

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A recent decision from the 1st U.S. Circuit Court of Appeals found that a housecleaner who claimed her employer had misclassified her as an independent contractor couldn’t sue because she was bound by a “clickwrap” mandatory arbitration agreement.

The plaintiff in Emmanuel v. Handy Technologies, Inc. had submitted an application through the website of a company that assigns housecleaning jobs to workers and clicked a checkbox agreeing to its terms of use.

She subsequently used the company’s mobile app to accept an independent contractor agreement, which was required for her to be connected with customers.

The 15-section agreement included a mandatory arbitration clause in section 12. That portion was not visible unless the user scrolled down through the entire agreement.

The plaintiff performed between 10 to 20 cleaning jobs for the defendant but stopped working because of payment issues. She then brought a putative class action alleging that she and others had been misclassified as independent contractors in violation of the state Wage Act and the federal Fair Labor Standards Act.

When the defendant moved to compel arbitration, the plaintiff argued that she did not have sufficient notice of the arbitration clause to be bound by it.

But the 1st Circuit disagreed. Applying the standard set forth earlier this year by the Supreme Judicial Court in Kauders v. Uber Technologies, Inc., it concluded that an online contract had been formed because the plaintiff had “reasonable notice” of the terms and made a “reasonable manifestation of assent” to those terms.

The court acknowledged that only a portion of the agreement was immediately visible on the plaintiff’s phone screen, and that portion did not include the arbitration provision. But it took the position that it was sufficiently clear that “additional text further specifying the terms of the Agreement could be viewed by scrolling.”

In doing so, it specifically declined to read Kauders as holding that for a user to be bound by terms visible only through scrolling, he or she must be required to scroll through the full text of the agreement.

The problem with that reading is that it fails to take into account that workers like the plaintiff are largely unsophisticated, low-wage gig workers. They are encountering long, dense agreements like the one in Emmanuel on their phones, which makes thorough review next to impossible. Moreover, they are not in a position to negotiate over the terms of such an agreement.

In fact, in some ways, these workers are more similar to consumers facing “take it or leave it” arbitration provisions than traditional employees.

It’s unfortunate that decisions like this one gloss over that reality.

 

Massachusetts Lawyers Weekly’s Editorial Advisory Board provides knowledge and guidance for the editorials that appear on this page. The board is an advisory panel only, with no official voting or participation record. The input from the board is a tremendous resource to Lawyers Weekly; however, the editorials represent the position of the newspaper and its editorial staff, not the members, nor any given member, of the board. 

BOARD OF EDITORS: Robert J. Cordy, Boston; Sophia L. Hall, Boston; Martin W. Healy, Boston; Hon. Margaret R. Hinkle, Boston; Thomas M. Hoopes, Boston; Regina M. Hurley, Boston; Shiva Karimi, Boston; Hon. Rudolph Kass, Boston; Marsha V. Kazarosian, Haverhill; Andrea C. Kramer, Boston; Renee M. Landers, Boston; Richard L. Levine, Boston; Elizabeth N. Mulvey, Boston; Eric J. Parker, Boston; C. Max Perlman, Boston; Patricia M. Rapinchuk, Springfield; Martin R. Rosenthal, Boston; Jeffrey Sacks, Boston; Carol A. Starkey, Boston

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6 Ways Gig Workers Can Invest for Retirement | Business

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In 2021, you can contribute up to $13,500 if you’re under 50, or $16,500 if you’re 50 or older.

There’s no Roth option, so you’ll be taxed upon withdrawal. There’s also a steep penalty if you need to withdraw your SIMPLE IRA funds within two years of setting up the account: 25%, instead of the usual amount, on top of taxes.

As the employer, you’ll have to contribute to your SIMPLE IRA on your own behalf, as well as for any employee who’s earned at least $5,000 in at least two of the past five years and expects to earn at least that much for the current year. You’ll have to choose one of the following formulas:

  • Automatically contribute 2%.
  • Match 3% of contributions dollar for dollar.

Due to the lower limits and the extra layer of rules, a Solo 401(k) or SEP IRA is typically a better option for solo gig workers. However, if you expand and add others to the payroll, a SIMPLE IRA may be a good option.

6. Taxable Brokerage Account

If you’ve exhausted your other retirement savings options or you want the flexibility to invest with fewer rules, a plain old taxable brokerage account works. Since you won’t get any tax breaks for investing in a brokerage account, though, aim to max out your Roth IRA or traditional IRA contribution before you go this route.

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Meet Your Driver: Film, Gig Workers and Big Tech

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Kris Hitchen in Sorry We Missed You, courtesy of Zeitgeist Films

“When you walk into an Amazon fulfillment center, it’s like walking into the Chocolate Factory, and you won a Golden Ticket,” says Janelle, one of the employees featured in videos posted to Amazon’s YouTube page. The introductions share a format, with titles like “Meet Ricardo” and “Meet Ron, military veteran and Amazon Delivery Service Partner.” These documentary-style videos sometimes air as advertisements on streaming services. One of the people interviewed just had a baby. Another narrates in American Sign Language. Janelle talks about providing for her young son. She says he loves packages from “Mommy’s work.” He appears briefly in phone-shot footage, lifting a cumbersome delivery box with joy. 

These short videos give an inside look at the warehouses that facilitate the world’s largest online retailer. Sped-up footage of workers on the floor and driving forklifts accompanies Janelle’s narration. Dressed in safety vests, they snake through a maze of pallets, robots and conveyer belts, while boxes slide down spiral chutes. The concrete floors are clean, and the space looks vast and orderly. The workers in the background of the videos don’t look happy, but they don’t look unhappy, either. They just look like people at work.


In “Meet Kent,” another worker talks about his son and his son’s admiration for his job. “Every time he sees the blue Prime trucks,” Kent says, “He says, ’Daddy! There’s your people!’” Whether Janelle and Kent are real people and their commentary unscripted isn’t really the issue. The point of this video collection is to cast doubt on allegations that Amazon warehouse staff are exploited and to bury the reams of reporting that depict the workplace as a living nightmare.

It would be easier on Amazon if its customers imagined all of its operations were conducted by robots. But, as a company with more than a million employees, it’s impossible to hide the existence of the humans on the route from a click on a website to a cardboard box on a front door. This year, plenty of customers, newly working from home, have even had the chance to meet their Amazon delivery drivers. The idea of who might be considered a “tech worker” also has shifted, and a few recent films have explored the change.

In the past, stories about tech companies, like Douglas Coupland’s 1995 novel Microserfs and the HBO program Silicon Valley, which debuted in 2014, have zeroed in on young upstarts working under slightly older tech industry lions. Think of the software developer Ryan Phillippe plays in the 2001 movie, Antitrust, versus Tim Robbins’s Bill Gates-like CEO. Even the cult classic Hackers positions computing as a generational battle: The young punks wish to free digital technology from the corruption and avarice of corporate adults. But in 2021, the lower-level tech insider’s tale has begun to sound predictable. Plus, given the number of stories in recent years about bad behavior by “tech bros,” it’s harder to find a hero in the computer guy who just happens to be a little less senior than the other computer guy.

In contrast with the vulnerable warehouse and gig labor that powers these newly global empires, tech office culture has banausic stakes. As people like Janelle—and the workers in the background—have grown more visible, films have begun to represent their struggles with more honesty than Amazon’s video team would allow. Alex Rivera’s Sleep Dealer (debuting in 2008, years before the “gig economy” had a name) was early to diagnose the problem. His film features workers in Mexico remotely powering robot laborers across the border. A decade later, another brilliant film, Boots Riley’s 2018 Sorry to Bother You, featuring Amazon-like corporation WorryFree, exposes bottom-rung work life, as well as the fig leaves and Potemkin villages that such companies create to deflect media scrutiny. This year, Lapsis, directed by Noah Hutton, cleverly leads with characters in a fictional gig position—part Google Map photographer and Instacart shopper. They face exploitation, but in Amazon-style promotional videos, the CEO declares that sustainability and “doing the right thing” are the company’s ultimate objectives.

Sorry We Missed You, released in 2019, is a direct hit, told as only the director Ken Loach could. The film reveals how the everyday burdens of this line of work can destabilize an entire family. Amazon goes unnamed, but it’s strongly implied when Ricky finds a job delivering boxes of products people ordered off the internet. He’d rather starve than go “on the dole,” and his pride and need makes him an easy mark for the hiring supervisor at the warehouse. “You don’t work for us, you work with us,” he tells Ricky.

The strength of Paul Laverty’s script lies in the scenes set at home. Ricky’s job, the means to provide for his family, has torn them apart. His wife gives up her car so that he can afford a van. Seb, his bright teenage son, skips school and has brushes with the law. Shouting matches between the boy and his father make clear that they want the same thing—for Seb to flourish, for Ricky to have an easier life—but know the deck is stacked, so they take their rage out on each other. When Seb shouts that he doesn’t want to “end up like you” to his dad, Ricky is devastated. I thought of Janelle and Kent when I watched this scene. What they said about their children delighting over boxes and branded trucks feels like a calculated response to those who might have anguished kids like Seb. Amazon has a lot to sell. It’s the “everything store.” What it sells in the video propaganda campaign became clearer to me through Loach’s film: Get a job at Amazon, and your son will be proud of you.

But Janelle has more to say in the video, which was posted online last year. She highlights how people on her team wear masks and have plenty of hand sanitizer. Workers are “going home to babies,” Janelle says, “[and] to grandparents,” and Amazon is trying to keep them safe. Last year, there were regular outbreaks in warehouses across America, and tens of thousands of workers were infected. Alec MacGillis, in his book on Amazon, Fulfillment, published in March, reports that workers relied on rumors about COVID infections because the company refused to inform them when someone was out sick. That’s just last year. Over the company’s history, workers have been injured and have even died on the floors that look so tidy in these videos.

Amazon’s video output coincides with the new style of tech worker movies. In one of the first employee introductions, posted in 2017, “Amazon Area Manager, Day in the Life,” the workers—managers, but on the floor—mention where they went to school (“Virginia Tech with a business management degree”). It is a perfect illustration of the mangled trajectories of tech disruption and social mobility in America: Dropouts can be tech billionaire CEOs, while college graduates end up in Amazon warehouses, and anyway, the opportunities for those without degrees are minimal for everyone besides a privileged class of white people. As Amazon attempts to stage manage its most vulnerable workers, movies like Sorry We Missed You and Lapsis bring the reality of the job in focus.




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