[USA] Gig worker protection law considered in New York

The New York legislature has demonstrated that it will not hesitate to pass laws to increase worker protections and redress the balance for workers in the ‘gig’ economy, despite delayed consideration of a recent bill, JD Supra reports.

New York lawmakers have now introduced the “Dependent Worker Act” (reporting via Law 360) into the Assembly. The act is intended to give workers in the gig economy rights that were previously only available to “employees.” However, the bill’s sponsor delayed consideration of the bill until the next legislative session after criticism that the bill had rushed, was poorly drafted, and failed to go far enough to protect gig economy workers.

Regardless, the New York legislature’s efforts are noteworthy, both in New York State and for other jurisdictions. Other jurisdictions could use New York’s efforts both as inspiration and as a model when passing their own gig worker protection laws.

The Dependent Worker Act

The proposed Dependent Worker Act (DWA) intended to define a new class of worker under the New York Labor Law (NYLL) - the “Dependent Worker.” This new category of worker would be defined as “an individual who provides personal services to a consumer of such personal services through a private sector third-party that: establishes the amounts charged to the consumer; collects payment from the consumer; pays the individual; or any combination of the preceding.”

If passed, the DWA would reportedly apply the following provisions of the NYLL to Dependent Workers (in addition to the remedies available under the NYLL to Dependent Workers):

  • The frequency of payment protections and requirements that the employer pay wages earned contained in NYLL § 191
  • Protections regarding the use of direct deposit contained in NYLL § 192
  • Notice and recordkeeping requirements (including providing compliant wage notices at the beginning of employment and pay stubs with each payment of wages) contained in NYLL § 195
  • Protections regarding the misappropriation of gratuities contained in NYLL § 196-d; and
  • Any regulations promulgated under these sections, which would include provisions contained in New York’s various Wage Orders for differing industries.

The DWA would also amend the New York State Labor Relations Act to cover Dependent Workers and give Dependent Workers the right to collectively bargain (as Dependent Workers would not qualify as employees under the National Labor Relations Act).

Criticisms of the Dependent Worker Act

The AFL-CIO spoke in favour of the DWA but many organisations criticised the bill for not going far enough to protect gig workers. The leaders of SEIU 32BJ - one of New York’s most influential service employee unions - together with the New York Taxi Workers Alliance, published an op-ed (reported in The New York Daily News) calling out the DWA for failing to provide Dependent Workers with a full complement of employee protections. Instead, they said, the bill was “cherry-picking” only certain employee protections to apply.

In fact, the DWA would not extend to minimum wage or overtime requirements for Dependent Workers, it would not extend the protections of New York’s WARN Act to Dependent Workers, it would not extend the anti-discrimination protections of the New Human Rights Law to Dependent Workers, and it would not treat Dependent Workers as employees for the purposes of unemployment insurance, workers’ compensation, and disability insurance, among other protections provided to employees under New York law. Though for the last three concerns, the DWA authorized the Commissioner of Labor to examine and make recommendations whether the law should be extended to these protections.

The New York legislature will take time between now and the next legislative session to hold hearings and get feedback from workers (and, ideally, businesses) on how the bill could best be improved.