LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis...
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Is enough being done to protect this growing segment of the workforce?
By Roger Rabb, J.D.
Last November, I wrote about a recent report describing health and safety issues that face workers in nontraditional work relationships, including independent contractor relationships and workers assigned through temp or staff servicing agencies. As described, that report found that these nontraditional work relationships often result in fewer health and safety protections and more injuries for workers, citing research suggesting that nonstandard workers might be more likely to be assigned to more dangerous tasks while also receiving less safety training than regular employees, lack the social connections at work that might foster the sharing of safety information between workers, and lack the benefits, such as sick leave and workers’ compensation coverage, that can help protect workers when accidents and illnesses do occur.
“The Gig Economy and Contingent Work: An Occupational Health Assessment,” an editorial authored by Dr. Molly Tran and Dr. Rosemary K. Sokas published online recently by the Journal of Occupational and Environmental Medicine, looks a bit more closely at the health and safety issues facing a subset of nontraditional workers, so-called “gig workers” who obtain work through an online platform or mobile app that matches the worker with specific clients and requires the worker to provide whatever tools or equipment may be necessary to perform the work.
Uber drivers would be a famous example of this type of worker, but digital platforms now serve as intermediaries in a wide variety of occupations, including housecleaning and photo tagging. These types of companies have been around for slightly more than a decade, but have demonstrated “a high rate of growth, in size, number, and revenue,” with one estimate claiming that since 2009 nearly 75% of all new businesses were “non-employer establishments.”
Risks to Gig Workers
Gig workers are usually considered by the employing platform to be independent contractors and as such do not generally receive health benefits or workers compensation coverage. However, as noted by Tran and Sokas, the use of a digital platform intermediary generally results in an even more precarious work relationship than that of a traditional independent contractor. Gig workers lack the ability to negotiate their own work rates or contracts and must simply accept the terms provided by the electronic platform, and once accepted, this relationship fails to provide even the basic protections of a contract and workers can be released simply by being deactivated from the platform. The authors also note that many gig workers undertake services for more than one platform in order to piece together a living wage, or undertake gig work to supplement lower-paying traditional employment.
Thus, even more than independent contractors in general, “uncertainty and insecurity” are the norm, and job insecurity is “known to contribute to poor overall health among contingent workers.” Moreover, these workers are also much more likely to be younger workers, with about 5 times as many workers in the 18-to-29 year old bracket providing gig services than workers over 50, and studies have found that youth is an independent risk factor for occupational injury.
Tran and Sokas also note that the types of jobs that have become popular in the gig economy may present health and safety risks that are not being served by any traditional labor protections because existing labor protections provided through government channels simply do not apply to these workers. For example, they point out that drivers in the transportation services have to face road and traffic safety concerns, as well as the risks attendant with one-to-one interactions with members of the public often conducted in a private auto, but no regulatory framework exists for addressing these risks for these workers. As they note, the transportation field can be dangerous even for trained drivers; however, gig drivers will often have no specialized driving skills or training, increasing risks to both the worker and other drivers and pedestrians. Similarly, many gig workers spend long hours at a workstation typing on a keyboard without safety measures in place designed to reduce injuries that can come from this type of repetitive, sedentary work. In general, gig work is often performed by individuals in isolation or with a single client, while existing health and safety measures, even if only educational in nature, are generally designed to reach traditional work relationships where there is a space shared between workers performing similar tasks.
Efforts to Protect Gig Workers
Some efforts have been made to address some of these problems for gig workers. For example, Tran and Sokas recognize that while gig workers are not generally provided health insurance by the gig business platform itself, Uber makes an online health insurance exchange available to drivers that do not have insurance from another source. They note, however, that this still does not address the lack of workers’ compensation insurance in the event of an injury sustained through performing the gig service, nor does it address the possibility that the “gig injury” will make it difficult or impossible for the worker to perform other employment he or she may have.
Other efforts have attacked the problem at the source by filing lawsuits challenging classification as an independent contractor in order to achieve employee status, thus ensuring application of existing labor protections to the gig worker. Many cases of this nature are pending, but many settle out of court, which, as Tran and Sokas note, may benefit the individual plaintiffs but does little to provide system-wide change. Moreover, some companies have started specifying in their agreements with gig workers that in the event of a finding of misclassification as an independent contractor, the worker would be responsible for back-payment of any payroll taxes.
Other attempts to improve working conditions for the gig worker noted in that report include efforts to organize workers, as in California and Washington, although without protection under the NLRA such workers could face deactivation from their given platform. Some participants in the gig economy, including the CEOs of Lyft and Care.com, have proposed the creation of benefit exchanges under which small amounts would be paid into a security account by the platform provider based on the amount of work that the worker performs for the provider. These accounts would then be used to pay into existing social programs such as social security and unemployment, but could also be used to pay for other types of benefits such as sick leave or paid holidays.
Whether these particular efforts are successful or not, the basic point advanced by Tran and Sokas is clear and compelling: existing labor protections designed specifically for traditional employment relationships are not protecting workers in the gig economy, one of the fastest growing parts of the post-industrial 21st Century economy, and new protections are needed to protect these vulnerable workers.
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