In his State of the State address in January, Gov. Andrew Cuomo vowed to explore legislation that would enhance regulations and protections for so-called "gig" workers.
Those are people who are contracted to do work for an app-based company but who are not considered employees. Think your Uber driver, or DoorDash delivery person.
Cuomo said in the same breath that these gig workers make up more than 40 percent of the state's workforce.
"It’s an economy which has spurred growth and many innovations," Cuomo said. "But it’s an economy where too many workers are excluded from the progress of fair pay an independent contractors. Too many corporations are increasing their profits at the expense of the employee and the taxpayer and that must end."
He followed that up with a call tucked into his 2020 budget proposal for a task force to investigate “the conditions of employment and classification of workers in the modern economy of on-demand workers connected to customers via the internet."
Labor interests are applauding Cuomo for his efforts. New York State AFL-CIO President Mario Cilento called the fight to ensure fairness for gig workers a top priority this year.
"[Gig workers] should have the right to a minimum wage and overtime pay, the right to paid family leave, workers comp, unemployment insurance, the right to organize, and be protected by any discriminatory actions taken at the workplace," Cilento said. "Right now they don’t have those protections. It’s not right and it’s not fair."
But when freelance writer Donna Liquori first heard about Governor Andrew Cuomo's plan, she panicked. On her mind? California's recent Assembly Bill 5 (AB5) law, which set new standards for hiring independent contractors in general, not just gig workers. That includes freelance writers.
"AB5 is a disaster. People are losing their livelihoods, " Liquori said. "We're hearing stories of companies just not even considering independent contractors anymore. They're not renewing contracts, and they're specifically saying, "We don't want people from New York, we don't want people from New Jersey, and we don't want people from California." Because they know that laws are either being considered there, or have passed, like in California."
California's law sprang from a 2018 state Supreme Court decision against package delivery company Dynamex Operations West for illegally switching employees to independent contractor status in an effort to boost the company's profits. The new law requires those who wish to remain independent contractors to pass a three-pronged "ABC" test. The worker must (A) work independently, (B) do work that's different from the work of the company they're contracting with, and (C) offer their work to others. For freelancers like Liquori, it's the B prong that they cannot overcome.
App-based companies like Uber and Postmates have taken legal action against AB5, and the backlash from that and other protests has led lawmakers to consider walking back the legislation to carve out exemptions for freelance writers, musicians and photographers.
Liquori testified at a joint legislative hearing on Workforce Development in Albany earlier this month. She says she does not want to see a repeat of California in New York.
"New York has to be really careful in how they do this," Liquori said. "We need something that works."
Many gig workers in New York agree. Denise Hoblock is an Uber driver in the Capital Region, who started driving for the app-based company to earn extra income after she retired. She says she is afraid that becoming an employee may mean she could lose the freedom that comes with being in independent contractor.
"Especially if they wanted me to work, to drive at night, which I don't like to." Hoblock said. "That would mean I'd probably have to stop driving for Uber if it didn't work with my schedule."
Hoblock and others, like Brooklyn-based Postmates driver Jack Payne, have joined the group Flexible Work for New York, to urge lawmakers to consider flexibility as they craft legislation.
"I'm able to pay my bills. I'm able to have money in my pocket," Payne said. "I'm able to do it all, and feed my daughter, and I'm happy about it."
It's not just workers who are concerned. Frank Kerbein of the Business Council of New York State says taking the wrong tactic could disrupt the business model for some app-based companies.
"We're hoping that this new economy, instead of spurring some old habits will spur some innovative thinking by the legislature and the Governor to be just as creative as these new companies were--Uber, and Lyft, and Wag--were in coming up with these services," Kerbein said. "The Governor needs to meet that challenge and be just as innovative."
State Senator Diane Savino, a Democrat from State Island who chairs the Committee on Internet and Technology, says she's confident lawmakers will come up with legislation that will suit both workers and businesses.
"There's enough of us talking about it now, and they all say the same thing," Savino said. "They want to be able to create flexible work force that has the protections. So if we all agree on that, it shouldn't be that complicated."
Cilento agrees.
"From the state AFL-CIO’s perspective, it’s the Hippocratic oath—do no harm. We don’t want to bring people who are truly independent contractors into something that doesn’t fit them," he said. "This is truly about the working men and women who perform the same tasks as everyone else, having the same rights."
As the legislative session unfolds this winter, freelancers like Donna Liquori aren't all doom and gloom, especially after their most recent interactions with lawmakers.
"We get a sense that in New York they're really willing to work with us. They're listening," Liquori said. "New York has a huge creative economy, and that's really important to the identity of New York, I think. And while we were really nervous, we're really hopeful that people are listening and will do the right thing in the end."
Should Cuomo's budget be approved come March 31, the "gig worker" task force will include seven members appointed by him, and one member each appointed by Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie.