Amid pandemic, gig workers’ jobless benefits at center of upcoming state court decision

SAN FRANCISCO, CALIFORNIA - MAY 18: A pedestrian walks by a sign in front of the Uber headquarters on May 18, 2020 in San Francisco, California. Uber announced plans to cut 3,000 jobs and shutter or consolidate 40 offices around the world due to severely declining business as the coronavirus (COVID-19) pandemic continues. The cuts come two weeks after Uber cut 3,700 employees. (Photo by Justin Sullivan/Getty Images)

In front of workers from across the world, Philadelphia rideshare driver Ali Razak made a bold declaration during a Facebook Live rally earlier this month.

“I’d like you to stop taking Uber and Lyft as some giant masters,” Razak said on May 8. “We are Uber and Lyft, and these companies are our slaves.”

These workers have some temporary safety nets through the pandemic — from expanded unemployment benefits back by federal government or tele-health visits offered by a delivery company. 

But how to treat these workers in the future — as self-employed contractors who manage themselves freely, or full employees with access to all of the benefits that accompany the status — is, by chance, at the center of a state Supreme Court decision that could come down any day now. 

The case, Lowman vs. Unemployment Compensation Board of Review, will decide if a Philadelphia Uber driver forfeited unemployment eligibility when, after getting laid off, he started driving for the ride share giant. Oral arguments in the case were held last fall, according to Bloomberg.

The driver, Donald Lowman, applied for benefits in June 2015, and was ruled ineligible two months later because he made too much money driving to qualify. The state’s unemployment review board backed that decision in an April 2016 ruling.

On appeal, Pennsylvania Commonwealth Court overturned the board.

In the February 2018 decision, the court ruled that Lowman’s actions “did not reflect an ‘entrepreneurial spirit’ or ‘intentions of starting a new business or trade.’” Therefore, Lowman was not self-employed, and his benefits should be restored.

The state appealed to the Supreme Court, while Uber stepped in. In a legal brief for the high court, lawyers for the tech giant argue that by agreeing to the company’s terms and conditions, Lowman became a self-employed contractor. Under state law, he would then not be eligible for unemployment insurance.

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The Commonwealth Court’s ruling, Uber argued , showed concern “as a policy matter, that individuals who are eligible for benefits after becoming unemployed should not lose that eligibility merely because they choose to provide independent contractor services as part of the ‘gig economy.’”

“Such policy judgments are best left to the Legislature,” Uber’s attorneys wrote.

Also on the side of the tech company is Gov. Tom Wolf’s administration, which argued that the Commonwealth Court overstepped its authority in its decision and should have, following five-decade-old labor law, found Lowman to be a self-employed individual ineligible for benefits.

The Wolf administration did not respond to a request for comment.

But Julia Simon-Misehl, Lowman’s attorney, wrote in her brief that Lowman cannot be self-employed because he can only, legally, make money taxiing passengers to and fro by working through Uber. Otherwise, Lowman would violate state licensing laws for taxi drivers.

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Additionally, if the Supreme Court sides with the unemployment board, Simon-Misehl added that the driver’s attempt to find work will “put him in a worse position than if he had collected benefits and not worked.”

“That result cannot be squared with the intent of the Unemployment Compensation Law,” she wrote in a court filing.

To be sure, the case itself might not completely rewrite state law. But the case is important, the National Employment Law Project argued in an amicus brief, because it acknowledges “online platform work for what it is.”

“Not self-employment, as Uber and other online platform companies insist — but employment for a company that dictates most of the material terms of the work,” the brief reads.

Dashing forward?

The case also helps illustrate what Angela Vogel, with the Philadelphia Drivers’ Union, says is clear to her — that under Pennsylvania state law, Uber drivers are already employees.

While other states, such as California, have passed laws that  say as much, Vogel said that Pennsylvania’s laws, as written, could be used to protect all workers, including those that clock in via an app.

At issue is how to carry out that interpretation. “If we cannot enforce that law, how will it help drivers?” Vogel told the Capital-Star.

To be sure, drivers have access to some benefits during the pandemic. Vogel said the union, not recognized as an official union under US labor law, has signed “hundreds” of drivers up for traditional unemployment they earned working previous jobs.

Susan Dickinson, Unemployment Compensation Benefits Policy Director for the Department of Labor and Industry, told the Capital-Star that it is possible that some Uber drivers could receive those benefits. 

Those who do not qualify could then access expanded federal benefits specifically for self-employed individuals — which the feds have defined to include gig workers and independent contractors.

Such a rule will temporarily apply “just for this particular program,” Dickinson said.

Also temporary is an agreement Attorney General Josh Shapiro negotiated with food delivery ap DoorDash earlier this month.

The agreement, announced May 4, means DoorDash will provide two weeks of financial assistance to Pennsylvania delivery workers who have tested positive, or who are at risk of COVID-19, as well as subsidized telehealth or childcare for some delivery workers.

DoorDash will also waive delivery fees for some health care workers temporarily, and help charities deliver food to at-risk individuals. 

Shapiro began reaching out to gig companies in late March, spokesperson Jacklin Rhoads said in an email, prompted by a “deep concern for all workers, especially those who aren’t currently classified as ‘employees’ and don’t get the same workplace protections employees enjoy.”

Liz Jarvis-Shean, a spokesperson for DoorDash, said the company is “honored to work with [Shapiro] and his office to expand the support we had been providing Dashers and continue to help vulnerable communities and frontline healthcare workers.”

The expanded benefits, Jarvis-Shean added, are “available nationwide for the duration of the pandemic.”

Vogel told the Capital-Star that she was “just grateful” that regulators were looking out for workers when making deals with tech companies.

But if Vogel thinks the question of gig workers’ status is answered, Shapiro said it was still open.

Asked at a press conference earlier this month, Shapiro said that “as we come out of pandemic, we need to address how we treat gig workers.”

“We have to treat them right, and we have to have state and federal laws in place that recognize who they are, and what they do, and not allow corporations to take advantage of them,” Shapiro said.