U.S. Labor Dept.

Since the onset of the COVID-19 pandemic, we have come to rely more and more on “gig” workers to supply us with our day-to-day needs. When restaurants were forced to shut their doors and grocery stores saw severe restrictions, drivers for companies like GrubHub and Instacart became lifelines for consumers and local businesses alike. However, despite the critical need for these workers and the COVID-19 exposure risks that they are forced to take each day on the job, such workers are often classified as independent contractors rather than employees, leaving them ineligible for even basic employee protections like minimum wage and unemployment insurance.

Steve Kennedy

The U.S. Department of Labor recently released a proposed rule meant to ensure that employers may continue this practice of misclassifying workers who are essential to their businesses. The proposed rule runs counter not only to the spirit of the “ABC Test,” which is used in one form or another in 33 states, including Connecticut, but also to the common law followed in the remainder.

These tests heavily weight the degree to which employers exert control over a given worker and how integral the worker is to the employer’s usual course of business. The proposed rule flips this analysis on its head and instead asks how much control a worker has over her or his working conditions and the worker’s opportunity for profit or loss under varying conditions.

The proposed change would further skew the power relationship between gig workers and their employers toward large gig platform companies, which continue to fight tooth and nail against any attempt to properly provide their workers with employment protections. Fortunately, Connecticut has its own, more generous definitions for employees for most employment protections and does not need to rely on the DOL rule to make state law determinations. However, the efforts to undermine workers’ rights highlight the need for concerted state action to protect these essential workers.

Up to 35,000 workers in Connecticut relied on gig work as their primary source of income before the pandemic, and with unemployment at record highs and the need for gig workers rising, that number can only have increased. In a national study, 80% of workers who rely on gig jobs as a primary source of income would be unable to afford any significant loss of income, making the absence of paid leave and worker’s compensation particularly alarming. Especially during a pandemic, the lack of even basic protections for these workers goes beyond individual suffering and potentially poses a public health risk. It also does not escape our notice that some of the groups most disproportionately impacted by the pandemic, particularly Black and Latinx workers, are disproportionately represented in the gig economy as well.

Beyond the individual level, in addition to the direct harm to these workers, Connecticut’s overall economy loses out as well. Out-of-state gig platforms can out compete our local businesses since they are not held to the same standard of employee protection. Also, by misclassifying their workers, these companies avoid payroll tax, withholding funds that should be contributing to the well-being of all of our residents.

There are several steps that Connecticut should take in the next session of the General Assembly to ensure that all workers receive the benefits and protections to which they should be entitled. By statute, Connecticut already uses the ABC Test to determine unemployment compensation, and the Connecticut Supreme Court adopted its use in wage claims.

However, gig drivers, and even other workers with flexible or remote work arrangements, are at risk of misclassification due to the inclusion of outdated expectations that someone who works outside of the employer’s “place of business” is more likely to be a contractor. The General Assembly should amend the state’s ABC Test to account for the realities of the modern economy and strike consideration of the location of an employee’s work.

Furthermore, although Connecticut uses the ABC Test in certain contexts, it currently only covers unemployment benefits and, at least in court, wage claims. An employee is an employee, and the same test should apply for eligibility for all employee protections, including paid sick leave, worker’s compensation, and family and medical leave, pursuant to any other requirements such as full-time hours.

These measures would ensure proper protections for all workers while still allowing for contracting when work is performed outside the usual scope of an employer’s business. Especially in a national environment openly hostile to the rights of these workers, as demonstrated by the DOL’s proposed rule change, coming at the same time that their work puts them at increasing risk, it is more important that we have their backs. Connecticut workers deserve fair treatment under the law, Connecticut businesses deserve fairness in their competition, and Connecticut deserves a proper framework for employee protections in the modern economy.

Steve Kennedy is the president of the UConn Law chapter of the People’s Parity Project, an organization of law students fighting for workers’ rights, social justice, and equity in the legal system.

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