NWLC Files Amicus Brief to Tell Gig Companies They Can’t Rewrite Law to Deny Their Workers Employment Protections
Victory: On June 14, 2022, the MA Supreme Judicial Court released their decision, stating unequivocally that the petitions failed to meet the requirements of the MA constitution, and would be blocked from being placed on the ballot. We are thrilled by this win and grateful to the working people of Massachusetts who fought so hard for this result.
Gig companies like Uber, Lyft, DoorDash and Instacart are fighting to deny their drivers benefits and workplace protections in Massachusetts, and NWLC weighed in to support the workers in an amicus brief filed on April 12, 2022. In October 2021, NWLC also submitted comments to the Massachusetts legislature opposing a state bill with the same aim.
What’s at stake? Whether or not these gig companies will be allowed to permanently classify their drivers as independent contractors through a November 2022 ballot initiative. Currently, under Massachusetts state law, drivers are supposed to be classified as employees, with all the benefits employees are entitled to—like protection from discrimination and unequal pay, access to paid leave and unemployment insurance, and more. However, gig companies are purposefully misclassifying their drivers as independent contractors, and independent contractors aren’t given the same state or federal employment protections as employees. This is wrong, and the drivers who will suffer the most are women drivers, including women of color.
While historically, delivery, livery, and other driver-for-hire services have been staffed predominantly by men, gig companies have significant female driver workforces. For example, at Instacart, 73 percent of delivery workers are women. As of 2021, 58 percent of DoorDash’s delivery workers were women. An estimated 29 percent of Lyft drivers are women. Uber data from 2015 to 2017 shows women in the United States made up 27.3 percent of drivers for Uber’s “peer-to-peer services,” and nearly half of all UberEats drivers. People of color also make up significant numbers of app-based drivers and are generally overrepresented among gig workers. A 2014 survey of Uber drivers revealed that although Black, Asian, and Hispanic workers comprised only 42 percent of the total workforce, they made up more than 53 percent of drivers.
The COVID-19 pandemic has had devastating effects on women’s workforce participation and has been particularly harmful for women of color. Since February 2020, the economy has experienced a net loss of over 2.1 million jobs, with women accounting for 68.5 percent of those losses. Women were forced out of their jobs in disproportionate numbers during the pandemic in part because the hardest hit industries—leisure and hospitality, for instance—are largely staffed by women. During the pandemic, many women turned to precarious app-based driver jobs to care for themselves and their families. For instance, Instacart (whose workers are, again, approximately 73 percent women) has hired 400,000 new drivers since the beginning of the pandemic, bringing its total to 600,000 drivers nationwide. Since 2021 Uber has seen the number of women earning on the app increase by 80 percent. At UberEats, the number of women delivery drivers more than doubled between April 2020 and January 2021.
Notably, women driving for gig companies because of the pandemic are more likely to be doing so because of other lost income, rather than because of an affirmative desire to work for gig companies. For instance, in February 2021 Lyft reported that women are more likely than men to drive on Lyft as a result of income loss. Similarly, Uber surveyed its drivers in July 2020 and found that more than a quarter of female UberEats drivers were working for UberEats because they lost their jobs or had hours cut, compared to only 15 percent of male respondents.
The economic precarity that resulted in women turning to app-based driving during the pandemic will be made worse if gig companies are allowed to cut their drivers off from the critical and expansive protections provided for employees by Massachusetts law. We can’t let corporations and big tech rewrite workers’ rights laws for their own benefit. Gig company drivers deserve the same benefits and protections of other employees under the law.