Gig Workers Inch Toward Right to Unionize in New York — But There’s a Catch

Los Deliveristas Unidos protest in Times Square.
Claudia Irizarry Aponte/THE CITY

State lawmakers, labor unions and tech companies are nearing a deal to introduce legislation that would grant gig-economy workers in New York the right to join a union — but stop short of reclassifying them as employees.

The push, which drew ire and skepticism from some experts and labor leaders, came amid a growing movement among essential workers in New York and beyond who toil for Uber, DoorDash and other app-based outfits with few benefits or workplace protections.

For months, State Sen. Diane Savino (D-Staten Island), the New York State AFL-CIO, the Service Employees International Union (SEIU) 32BJ, and several tech companies have been weighing how to deal with gig workers — essentially independent contractors ineligible under federal law to band together for salary negotiations.

“We have an opportunity, right now, to get organizing rights and critical worker protections,” said Mario Cilento, the president of the New York State AFL-CIO. “This proposal is still being finalized, but it will provide these workers with the same workers’ compensation that other injured workers are entitled to. The proposal will codify unemployment rights and give workers a union voice.”

While conversations over what would be included in the bill and other details are ongoing, several people familiar with the process told THE CITY that the measure would allow app-based workers to vote to form unions that would engage in “sectoral bargaining.” That means union representatives would be able to negotiate on behalf of an entire industry’s workers regardless of what companies those people work for.

MTA union leader John Samuelsen
Jose Martinez/THE CITY

“This bill is totally distinct from anything that’s ever been produced before,” said John Samuelsen, president of the Transport Workers Union. “It’s an extremely advanced piece of legislation that will primarily create a structure for platform rideshare drivers and food delivery workers to organize into real trade unions, or organize their own unions.”

Potential Loopholes Loom

Since the workers won’t have employee designation under the measure, it would be up to the state to approve and impose any collective bargaining agreement. The proposal would also preempt local governments from imposing some forms of regulations on the apps, according to Bloomberg, which first reported on the deal.

According to Samuelsen, who has been involved in the discussions over the legislation, any final bill would include unemployment insurance and workers’ compensation benefits.

The group is also working to include in the proposed law some of the bills “floating around” the City Council — such as allowing delivery workers to use restaurant bathrooms, Samuelsen said.

Lack of access to restrooms became a flashpoint for workers who had few places to relieve themselves during the pandemic because they were neither restaurant employees nor employed by the apps.

The issue helped spur the formation of Los Deliveristas Unidos — a collective of mostly immigrant food couriers affiliated with the Workers Justice Project that has received the support of some local lawmakers and 32BJ SEIU.

The union “has long supported the idea that gig and other misclassified workers deserve the same rights, benefits and protections other employees receive under our state’s labor and employment laws,” union president Kyle Bragg said in a statement. A spokesperson noted 32BJ SEIU officials haven’t yet seen a draft of the state bill.

‘A Horrible Precedent’

While some lawmakers in Albany are waiting to see the specifics before they comment, the proposal is already facing some backlash.

Bhairavi Desai, executive director of the Taxi Workers Alliance, which represents cab and app-based drivers, slammed what she saw as labor “compromising” with tech giants hungry to undercut regulations being floated at the federal level.

“I think that at this point, this is about a national strategy by Uber and Lyft to actually undermine — and to get a carve-out for themselves — from the PRO Act,” Desai said.

A ride-share driver travels through Manhattan, May 19, 2021.
Ben Fractenberg/THE CITY

She was referring to the Protect the Right to Organize Act, a sweeping reform of national labor law which seeks, among other things, to grant full employment rights to independent contractors nationwide.

Desai called the proposed state bill “a horrible precedent.”

“These same companies have for years treated workers — drivers and delivery workers — as second-class citizens, for purposes of minimum wage, and other labor law,” she added. “Now they want the same mostly immigrant workers of color to be treated as second-class citizens for the purposes of forming a union? I mean, how can anybody in the labor movement, particularly in a state like New York, and its legislators, how can they back something like that?”

Experts studying the gig labor movement say that the bill as described could set a negative precedent if it erodes local regulations and fails to reclassify the workers as full company employees entitled to benefits and protections.

“By closing the door on employee status, you’re putting the workers on shakier ground by not giving them access to real benefits, like minimum wage or sick days,” said Andrew Wolf, a PhD candidate researching labor and the gig economy at the University of Wisconsin-Madison. “You’re supposedly giving them representation, but then you set a ceiling on what’s possible for workers to negotiate for.”

María Figueroa, who heads the Cornell University Worker Institute, said the bill could be “a step in the right direction” for gig workers, but wanted to wait until reading the proposal before saying more.

“My question for those who are drafting the bill would be, how is that going to play out with the federal-level policy that is being proposed with the PRO Act?” she asked. “I’m hoping that we’re going to get more clarity on that.”

‘Complicated and Nuanced’

Last month, delivery workers in New York City secured key legislative support from the City Council, which introduced five bills aimed at protecting workers in the industry — including providing restaurant bathroom access, regulating the travel distance between deliveries and establishing regular per-trip pay standards.

“We were able to get to first base — so I think it will be important at this stage in the process, in which we already have bills introduced at the city level, that we at least enter into a dialogue with those who are about to introduce a bill at the state level, so that we don’t work at cross-purposes,” Figueroa said.

A delivery worker bikes in Manhattan, May 19, 2021.
Ben Fractenberg/THE CITY

Savino, who was not available for an interview, said in a statement: “This a complicated and nuanced process and in the end will lead to better working conditions for thousands.”

The Staten Island Democrat has been grappling for years with how to address the concerns of gig-economy workers, saying at a 2019 hearing that they weren’t truly independent from the companies they work for and could be exploited.

Representatives for Uber, Lyft and DoorDash did not respond to requests for comment.

Eyes on Biden Bill

Labor leaders involved in the legislative discussion say that there’s nothing in the state bill being drafted that would weaken or threaten the sweeping federal measure backed by President Joe Biden.

“This proposal will only serve to strengthen our chances of making the PRO Act a reality by building worker power,” Cilento said.

Samuelsen sees the soon-to-be-introduced state legislation as a “bridge” to the federal proposal, which faces an uphill battle in the U.S. Senate.

“I view this correctly as a bridge to full recognition of directly employed individuals through the federal government,” Samuelsen added. “In the meantime, I have no desire to sit around and let ideologies try to convince working people to toil with degrading working conditions.”

Tech companies have already scored some big wins in preventing the gig workers from being reclassified. Uber, Lyft, DoorDash and other companies poured $200 million into a California ballot initiative that exempts companies like theirs from classifying workers as employees.

The New York proposal appears to resemble a bill in Connecticut that would have created the first sectoral bargaining system for gig workers in the country — but without classifying workers as employees entitled to benefits.

The Connecticut bill — backed by the local AFL-CIO and the Independent Drivers Guild, an affiliate of the International Association of Machinists funded by Uber that represents ride-hailing drivers — was ultimately shelved in late March. Drivers, tech companies and the national AFL-CIO pushed back on the proposal over a variety of concerns, including how the legislation would affect the union’s national effort to protect workers.

Wolf argued that deals like the one proposed in Connecticut enable “company unions” — or unaffiliated unions dominated by an employer, which are prohibited by federal labor law but seldom cracked down upon.

In New York, Gov. Andrew Cuomo had also sought to regulate the budding gig economy.

In January 2020, Cuomo called for the creation of a nine-member Digital Marketplace Worker Classification Task Force that would be charged with coming up with regulations for the gig economy. But the pandemic hit soon after and attention turned to fighting COVID-19.

Rich Azzopardi, a Cuomo spokesperson, said the draft legislation is “something we’re looking at but need to review the language.”

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