The Gig Economy and Occupational Safety and Health

• Jurisdiction: United States,Federal
• Citation: Vol. 23 No. 11
• Publication year: 2019

The Gig Economy and Occupational Safety and Health

Page 4

by Scott Prange

Nationwide, the gig economy— the free market system in which companies "fissure" discrete jobs into flexible "gigs" performed by contractors temporarily—is transforming the work-force as it continues to expand.¹ But with the gig economy mostly unregulated and gig workers not treated as "employers" entitled to statutory safeguards or benefits, a chorus of voices has been calling for greater protection of gig workers especially related to occupational safety and health.

In May 2017, Uber, considered the gig economy's chief architect, responded to head-off greater regulation of the world's largest ride-hailing service. In the United Kingdom and the United States, Uber announced it had partnered with insurance behemoths OneBeacon and Aon for a "first-of-its-kind" workers' compensation-like program, enabling gig drivers injured on the job to recoup wages and medical expenses.² Uber said, "drivers should have a low-cost option for protecting themselves and their families from rare and unforeseen accidents that prevent them from working."³

Several months prior, all eyes were fixated on the gig economy and worker safety. Across the country, two Uber drivers were brutally murdered leaving behind families who relied on their support. In California, 27-year old Andre Jamal Bayyan was pronounced dead on the scene after being found in his vehicle, shot in the head, while either in route to pick up or drop off a passenger.⁴ Bayyan performed gigs to support his family and was the primary provider and care giver for a young son. And in Michigan, 51 -year old Modou Diagne was found dead in his vehicle after it crashed into a tree; Diagne had crashed while fleeing a passenger who had ambushed and gunned him down.⁵ A recent immigrant from West Africa, Diagne was juggling multiple gigs to support his family including his pregnant wife and several children.

Shocking the national conscience, these high-profile incidents—and many others like them⁶—culminated in a campaign now being waged within the federal and state governments and in the courts to regulate the gig economy in order to extend occupational safety and health pro-tections.⁷ Analyzing the gig economy with a view on occupational protections, along with developing and effecting new statutory or non-statutory approaches to cure any deficiencies, is therefore essential.

The Gig Economy

Today, the gig economy is robust, although its exact size is unknown.⁸ In the Fissured Workplace: Why Work Became So Hard and What Can Be Done to Improve It, the former Administrator of the United States Department of Labor Wage and Hour Division, David Weil, argues that the gig economy has flourished because companies desire to maximize efficiency by "Assuring" or splitting off functions to streamline and drive down costs.⁹ The "Assuring" of the traditional employment relationship naturally followed giving rise to gig work completed by contractors on a temporary basis, a trend that will likely accelerate.

Today, companies across industries and of all sizes are shedding their roles as direct employers by fragmenting existing jobs into smaller tasks for bidding that specialized companies, staffing agencies, and individuals all fiercely compete for.¹⁰ Companies are able to focus on their core operations and bolster efficiency by doing so. They also effectively evade workplace laws to save money by not paying minimum wage or overtime, contributing to statutory benefit regimes, complying with occupational safety and health standards, or paying into workers' compensation insurance.

This shifts the burden onto smaller companies with fewer resources or onto the workers themselves. For some, this may seem like a fair trade-off.¹¹ Considered the father of corporate management, Peter Drucker once suggested that the goal of any company is for a worker to see themselves "as a 'manager' and accept . . . the full burden of what is basically managerial responsibility."¹²

[Page 4]

The gig economy has allowed workers to do just that by engaging a patchwork of gigs over which they have greater control and for which they have the full burden of managerial responsibility.

Gig workers may enjoy greater self-sufficiency. But they have no guarantee of a stable job and are unable to take advantage of a standard wage or statutory benefits.¹³ This includes the protections that occupational health and safety standards afford like a safe workplace and workers' compensation that provides wage replacement, compensation for medical costs, coverage for permanent disability, and even survivor benefits when injured on the job.

The U.S. Bureau of Labor Statistics has not always monitored the gig economy and had last counted comparable "contingent working arrangements" in its "Current Population Survey" in 2005.¹⁴ In May 2017, this changed. The Bureau began tracking "contingent working arrangements" again using descriptors that cover workers provided by contract firms and workers with an implicit or explicit contract. Still, when the Bureau asks companies and workers about "contingent work arrangements," survey respondents may not view gig work or other nontraditional work arrangements within these descriptors, resulting in underestimated participa-tion.¹⁵

Alternatively, the Freelancers Union, a non-profit organization representing the interests of gig workers conducted a comprehensive study of the nation's workforce. They sought to identify the total number of "contingent workers" using broader descriptors inclusive of a broader array of nontraditional working arrangements. They concluded that almost 54 million Americans or roughly one in three of the total workforce is a contingent worker—either a gig worker, an independent contractor, or a part-time worker.¹⁶ In Hawai'i, this includes nearly 100,000 workers.¹⁷

The gig economy is likely to grow even bigger as the percentage of the workforce comprised of millennials grows. Currently, 42 percent of gig workers are millennials.¹⁸

Gig Work and Occupational Safety and Health

Risks of Gig Work

The gig economy encompasses many types of nontraditional working arrangements across industries with risky working conditions. Moreover, gig workers are generally less prepared to navigate these risks for numerous reasons:

• Nature of Job

Many gig companies operate in high-risk industries such as construction, passenger transport, and freight transport that are fraught with danger and lead in raw numbers of occupational injury and illness.¹⁹ Additionally, most gig jobs in these industries are temporary and are performed in separation from and often in competition with others, denying workers social interactions that would otherwise facilitate learning amongst co-workers, sharing of safety best practices, and discussion of work concerns.

• Education and Experience

Many companies now rely on temporary gig workers who are transient and often younger and therefore are less prepared for the specific job by way of education and experience. In 1989, for example, the Occupational Safety and Health Administration ("OSHA") conducted a national survey in the wake of a petrochemical plant explosion of 600 direct hires and 600 contract employees.²⁰ OSHA found that compared to the direct hires contract employees were less educated and had less general and specific job-related working experience.

• Training

Likewise, gig workers are less likely to be given or have completed generalized or site-specific job training or occupational health and safety training.²¹ OSHA's survey of petrochemical employees supports this notion. Subsequently, gig workers are less prepared while working to deal with job hazards, mitigate risk, or bring job hazards to attention because they are not familiar with reporting protocol.

[Page 6]

• Psychological Detriments

Gig workers often report psychological detriments related to job insecurity and a fear of losing their job. This breeds a working environment built on distrust where training requests are not completed, working hazards go unreported, and "presenteeism" abounds where gig workers fail to report occupational injuries and illnesses while coming to work injured or sick.²² A well-known international study demonstrated that compared to permanent workers, a large sample of gig workers performing temporary jobs reported much higher psychological distress related to job insecurity and somatic complaints.²³

For these reasons, worldwide, compared to permanent workers in similar jobs, gig workers are up to three times as likely to suffer occupational injury and illness and when they do with greater severity.

In 2015, the Finnish Institute of Occupational Health conducted a comprehensive meta-analysis of 27 international studies conducted across a number of countries of gig workers and various health outcomes.²⁴ The meta-analysis clearly demonstrated that gig workers have a significantly higher risk of occupational morbidity. In 2009, for example, one such study conducted of Italy's nascent gig workers found that as compared to permanent workers with similar jobs, temporary workers were three times as likely to suffer work-related injury or illness.²⁵

The United States lacks a national surveillance system to collect exhaustive data on occupational safety and health. Rather, the U.S. Bureau of Labor Statistics collates data either through an annual survey that relies on company and worker self-reports or state workers' compensations systems who report; both measures are highly unreliable. As a result, the Bureau's "Current Population Survey" has failed to track the collective experience of gig workers regarding occupational health due at least in part to a lack of adequate descriptors for "contingent work" that fail to capture the full extent of nontraditional working arrangements and related occupational injury and illness.

[Page 7]

In 2019, the Bureau's "Census of Fatal Occupational Injuries" published for...