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Brad Lander

‘Uber’s Fantasy Novel’: State Gig-Worker Bill Would Limit City’s Proposed Deliverista Rights

12:24 PM EDT on May 25, 2021

Deliveristas rally at City Hall Park for a package of City Hall bills that would regulate delivery apps. Photo: Dave Colon

It's an end-run around workers rights.

A state proposal that would allow gig workers, such as the city's delivery riders, to form unions and bargain for wages would also undercut the recent City Council efforts to give far more rights to those workers, advocates say.

The bill "reads like Uber's fantasy novel," said Bhairavi Desai, the executive director of New York Taxi Workers Alliance, which represents Uber, Lyft and yellow cab drivers. "[Tech companies] get everything they want: ultimate deregulation, a phony union to give them cover, and workers at their mercy with no labor law or right to strike to build their power. The bill needs to be shredded."

The bill, which State Sen. Diane Savino expects to introduce before the end of the legislative session next month, would establish certain labor rights, mostly dealing with wages and benefits, for drivers and couriers on apps including Uber, Lyft, and DoorDash. Rather than creating a worker-classification system that makes the gig workers full employees, it instead establishes baseline minimum wages that gig workers would bargain for with app companies. Even as the proposed legislation sets wages and organizing rules, app companies would have the right to determine every other aspect of how their apps operate, and cities could not pass their own laws regulating the delivery apps.

Proponents say the bill would require third-party-app companies to pay into unemployment and worker's compensation funds for couriers and drivers. And the bill itself would give gig workers some bargaining power in an industry that has avoided any worker-friendly regulations. For drivers and delivery riders, however, the potential of unionization doesn't compensate for the limited rights they would have as less-than-full-time employees, advocates said.

"The bill relegates drivers and deliveristas to second-class status on every level — from wages, safety nets to bargaining and unionization," said Desai. "The bill sets it up so drivers can never get compensated for wait time — almost half of their work day. Their right to unemployment, which we won in 2018, would be effectively eliminated, and there's no clear right to strike even after the initial 'labor peace' period. The so-called union gets paid through customer surcharges — no need to organize for dues." 

A pre-emption clause would prevent cities from passing any taxes, fees "or any other provision concerning network companies, the relationship between network companies and network workers." The legislation also gives each app company "exclusive rights to develop, maintain, and control the operation and design of its digital network" around areas like service areas and rules around worker pay that aren't collectively bargained.

The state bill might even affect a recent proposal that would require restaurants to allow delivery riders to use the bathroom when they're picking up orders through third-party apps. City legislators say that the preemption and app-supremacy language definitely undercuts their efforts to provide justice for delivery riders, such as through establishing minimum per-delivery payments for riders or allowing them to set their own travel distances on apps.

"That would preempt us from both from transparency and wage transparency," said Council Member Brad Lander, who's sponsoring the bill to establish a minimum per-trip payment for delivery siders. "So even demanding that they just make the information more transparent and more public [as the bill proposes] might well be preempted."

The issue of limiting travel distances affects delivery riders who use the Hudson River Greenway. Gustavo Ajche, of delivery rider collective Los Deliveristas Unidos, said that he and his colleagues use the Greenway because orders  require travel between Lower Manhattan and Midtown.

Lander objects to the fact that the state bill doesn't establish employee status for gig workers such as deliveristas while preventing the city from establishing its own labor standards. He compared it to AB5, California's 2019 law that gave gig workers the same legal status and rights as full-time employees. That legislation was overturned by Proposition 22, a 2020 ballot referendum that set some minimum-wage standards for gig workers but precluded them from full-time employee status. Following the success of Prop 22, gig work companies like Uber and Lyft began a big-money lobbying effort in New York to introduce legislation that lays out similar not-quite-employee status for gig workers, according to the Public Accountability Initiative.

"If the state would take an approach like the California AB5 that made these folks employees, I would be supportive because it would come with all the worker protections and minimum wage and benefits and standards that come along with being an employee," said Lander. "But if they're not employees, then to preempt the city from filling in the gaps is not acceptable."

The preemption language would also obliterate the city's current wage structure that pays for-hire drivers $17.22 per hour, by excluding time the drivers spend looking for rides as part of the formula to determine the a minimum wage for drivers and app companies.

The Savino bill hasn't been introduced, but after its draft leaked, its prospects quickly dimmed.

State Senate Labor Committee Chair Jessica Ramos, a stalwart for deliverista rights, wrote on Friday that she "cannot support legislation crafted without uncompromised worker voices at the table."

Ramos was backed up by 32BJ Vice President and Political Director Candis Tolliver, who tweeted her support for the senator's stand.

https://twitter.com/CandisLynnT/status/1395841300436508677

After the Twitter salvos, Savino tweeted on Saturday her intention to introduce the bill, which she said she was still "refining."

"This is a complex proposal that came together after nine months of negotiations to find a solution that better protects workers. As with most legislation, there will likely be further refinement as we hear from the public," said Savino. "I will continue to work with Senate Leadership and my colleagues in the Assembly to ensure that this bill provides bargaining rights, worker’s compensation, unemployment, and other benefits to a much deserving, essential workforce of our state."

That wasn't enough for Los Deliveristas Unidos, which on Tuesday charged the sponsors of negotiating without their input, and saying that "this bill would sideline rather than empower workers."

Representatives for Uber and DoorDash did not respond to a request for comment.

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