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Courts Deliver Extra Protection to “Gig Workers” During COVID-19

Recent court decisions have re-opened courtroom doors for delivery and transportation workers.

Though courts continue to enforce arbitration agreements, pursuant to the FAA, some workers’ cases are drawing attention because courts have held they are exempt from the FAA’s purview. If employees fall outside the FAA’s coverage, they are better positioned to successfully argue that their arbitration agreement is unenforceable. One category of workers the U.S. Supreme Court has explicitly held is exempt from the FAA is “transportation workers.”

But, as is often the case in law, the U.S. Supreme Court has not definitively specified who counts as a transportation worker. For example – is the Pizza Hut employee who drove a few blocks and used his own vehicle to deliver a pizza at your doorstep a “transportation worker?” What if, instead, your pizza was delivered by an Uber Eats worker, who spends 45 hours a week in her car picking up, driving, and dropping off customers’ orders? Does she qualify as a “transportation worker?”

Recently, two federal appellate courts have provided some guidance on this question by determining Amazon delivery drivers hired as “independent contractors” to transport goods locally through the last mile of a customer’s order fall within the FAA’s “transportation worker” exemption. Both courts gave Amazon drivers “the greenlight” to collectively litigate against the company for wage theft despite signing binding arbitration agreements and class action waivers as part of their employment contracts.

Importantly, the courts held drivers did not have to cross state lines and that transporting traditional goods as well as passengers could trigger the FAA’s “transportation worker” exemption.

Courts should deliver more protections to gig economy workers.

Amazon workers have paved the road back to the courtroom for other delivery drivers and gig economy employees at large. Several high-profile employment lawsuits are pending in courts throughout the country against Uber, Lyft, GrubHub, and other megacompanies to determine whether their workers will be categorized as “transportation workers” exempt from binding arbitration agreements and class action waivers. If courts continue on a similar route, delivery drivers and gig economy employees may find a path back to their ability to pursue claims of wage theft in court as opposed to private arbitration. 

The recent pandemic has demonstrated our reliance on gig economy workers, who have delivered necessities to Americans around the country and enabled many to remain at home and quarantine safely. In some cases, those who have lost their jobs were able to join the gig economic system to remain afloat. Though this new role may allow for a small reprieve, workers still suffer added expense, such as utilizing their personal vehicles to transport goods and customers to their employer’s benefit. 

These employers have relied on and benefited tremendously from the use of gig economy workers—workers which they continue to label “independent contractors” to preclude them from receiving employee benefits under the FLSA, in addition to requiring signed arbitrations agreements and class action waivers as part of employment contracts. The CEOs of businesses that rely on gig workers amassed tremendous wealth during the first six months of the pandemic. In fact, Jeff Bezos, the CEO and founder of Amazon, increased his wealth from $73.2 billion to $113 billion during the pandemic.

Explosive gains for CEOs like Bezos remain steady despite, as of September 2020, more than 13.5 million Americans still being out of work. The station of gig economy workers has always been precarious but now, more than ever, courts should deliver increased legal protections to these employees, who many Americans have relied on for food, medicine and the safety of their families. This critical piece of our economic infrastructure deserves to be protected to ensure gig economy workers can continue their work for months, and years, to come.

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