Biden Promised to Reclassify Gig Workers. But How Will He Actually Do it?

On president-elect Joe Biden's website, he promises to "ensure workers in the 'gig economy' and beyond receive the legal benefits and protections they deserve. 

But what a Biden presidency will mean for the country's millions of gig workers—Uber and Lyft drivers, Instacart shoppers, DoorDash and GrubHub delivery workers, could be transformative change—or more of the status quo. 

His employment plan for gig workers promises to reclassify gig workers as employees, granting them rights and benefits—such as overtime pay, sick days, and union membership rights—that they've been denied for as long as these companies have existed.

At the same time, an increasingly formidable worker-led movement fighting for employee-rights in the gig economy is under no illusions that a Biden administration will deliver on these plans without significant pressure. As vice president and throughout his political career, Biden has earned a reputation for a style of governance defined by compromise, incremental change, and across the aisle relationships. 

Biden and vice president-elect Kamala Harris have close political ties to both Uber and Lyft that could hamper any efforts to enact transformative change in the gig economy. Harris' brother-in-law, Tony West, a former Obama Department of Justice appointee, is Uber's top lawyer. On Tuesday, Biden appointed Seth Harris, a former deputy labor secretary under Obama who wrote a 2015 paper arguing that gig workers are not employees, to the Biden-Harris Department of Labor transition team.  The argument was later co-opted by Uber and Lyft to disenfranchise gig workers in California.

"Nothing that we needed to happen was going to get done under a Trump administration. But I'm not confident that the new president's pretty bold commitments for gig workers will materialize," Vanessa Bain, an organizer at the Gig Workers Collective and an Instacart shopper in Mountain View, California, told Motherboard. "I am optimistic, though, that we as organized workers can use our power to hold Biden’s feet to the fire."

Motherboard spoke to gig workers and organizers, labor policy experts, and union officials who've been waging the campaign to expand gig worker protections about Biden's plan for the gig economy, what he can achieve with and without a Democratic majority in the Senate, and how the labor movement can push him to enact the legislation he's stood behind during his campaign. 

What is Joe Biden's plan for gig workers?

On his campaign website, in the Biden Plan to Empower Unions and Workers, Biden says that "employer misclassification of gig economy workers as independent contractors deprives these workers of legally mandated benefits and protections. This epidemic of misclassification is made possible by ambiguous legal tests that give too much discretion to employers, too little protection to workers, and too little direction to government agencies and courts."

The business model used by Uber and Lyft and copied by dozens of Silicon Valley starts-up in recent years relies on the classification of a low-wage workforce as independent contractors. This model has allowed gig economy companies to pay gig workers sub-minimum wages, and to skirt basic protections such as healthcare benefits and paid sick leave. 

To resolve this problem, the Biden campaign says it would work with Congress to "establish a three-prong 'ABC test,'" similar to that of the state of California, which provides guidelines for "distinguish[ing] employees from independent contractors to ensure they get the legal protections and benefits they rightfully should receive." 

"Biden will work with Congress to establish a federal standard modeled on the ABC test for all labor, employment, and tax laws," his plan reads.

In 2019, California passed a law known as AB5, that outlined a similar ABC test for the state to use to determine whether workers should be classified as employees. Many legal experts say this law removes any ambiguity that platform-based rideshare and food delivery workers who are controlled by the apps they work for are employees, not contractors. 

But Biden's victory came days after voters in California dealt a blow to gig workers in the state, voting to pass a ballot initiative, known as Proposition 22, which exempts Uber and other gig economy companies from reclassifying their workers. Legal experts have described Prop 22 as "a wholesale elimination of basic workers’ rights across an entire sector." They warn that Prop 22 could serve as a model for other states and the rest of the country to remake labor laws in favor of gig economy companies going forward. Following the passage of Prop 22—which Biden and Harris opposed—they have not said whether their plans have changed. But Uber has already signaled that it wants to enact similar legislation in other states.

What can Biden achieve for gig workers with and without the support of Congress?

Without the support of the Congress, Biden cannot singlehandedly enact a reclassification law for gig workers similar to California's. And whether Biden is able to fight to pass a law that forces companies to recognize gig workers as employees rides in large part on whether Democrats win a majority in the Senate following two upcoming runoffs in the state of Georgia. 

"The biggest thing is control of the Senate and the ability to pass a law for gig workers," Ken Jacobs, a gig economy expert at the UC Berkeley Labor Center, told Motherboard. "We’ll know more after the Georgia election, but things like an ABC test that takes legislation will be more difficult for Biden in the short run." 

What can Biden do for gig workers immediately?

Biden does have other options for quickly working to force gig economy companies to guarantee workers and benefits they've been denied as contractors, even without a Democratic majority in Congress. For one, Biden can appoint a progressive Secretary of Labor who could start punishing companies that don't pay workers overtime and the federal minimum wage—protections guaranteed to employees under federal labor law. 

Biden could also make pro-labor appointments to the National Labor Relations Board—who could reclassify them as employees, granting them the right to organize and form unions—a goal of many members of the gig workers' labor movement. Under Trump, the board determined in a 2019 victory to Uber that its drivers were independent contractors, not employees.

Brian Chen, a gig economy legal expert at the National Employment Law Project, says it's fairly likely a Biden administration will use its power to do what it can. 

"We can expect that a Biden administration will correctly enforce the National Labor Relations Act [to allow gig workers to join unions] and that a Biden administration will act to grant workers overtime time and the minimum wage, under the Fair Labor Standards Act. We can also expect that a Biden Equal Employment Opportunity Commission would ensure gig workers have protections against discrimination and harassment that they currently don't."

Under federal law, any of these moves would supersede Prop 22's elimination of some of the basic rights afforded to gig workers under California law. One potential setback that played out under the Obama administration and could happen again is that Congress could simply refuse to confirm any of Biden's appointments to the National Labor Review Board or the Department of Labor. 

What do gig workers and the labor movement expect out of a Biden administration? 

The most powerful force that can push Biden to ensure gig workers receive rights and benefits they've been denied is undoubtedly gig workers, organizers, and labor unions. During the Prop 22 campaign in California, which Uber and gig economy bankrolled at the cost of $206 million, gig workers across the state and beyond mobilized a powerful coalition of politicians, unions, academics, and labor activists, staged protests, phonebanks, and caravans across the state. 

Despite their loss, some members of that coalition say they're not going to compromise for anything less than full-employee rights at the federal level in Washington. 

"A president is only as moderate as the people are," Nicole Moore, a Lyft driver in Los Angeles and an organizer with Rideshare Drivers United, told Motherboard. "The truth is that all work can be deployed through an app on your phone, and the passage of Prop 22 means many more workers could have their union and minimum wage rights taken away from them. We're going to push the Biden administration for our full employment rights." 

Vanessa Bain, the Gig Workers Collective organizer and an Instacart shopper who has created a Facebook group with more than 11,000 Instacart shoppers around the country said, "We’re looking at legal challenges and what we can do on the national level. Joe Biden isn’t a clear or obvious champion for working people but our chances are significantly better under a Biden administration that a Trump one.

What about negotiating with gig economy companies directly now that some have offered? 

In recent years, Uber and Lyft have floated the idea of sectoral bargaining—or industry wide labor negotiations with labor unions for gig workers without employee rights. In recent days, union officials at the Teamsters and SEIU have expressed some interest. 

But labor law experts and organizers say that sectoral bargaining without full employment rights for gig workers, would be a dangerous concession to gig companies, and would mean fighting for basic rights, such as minimum wage floors and overtime. 

In a response to a question from Motherboard about whether SEIU would push Biden to reclassify gig workers or sit down with gig economy companies for sectoral bargaining, Mary Kay Henry, the president of SEIU, told Motherboard that the decision is up to gig workers themselves.

“Gig workers built a movement from the ground up to fight for their rights and we will support drivers in advocating for themselves and defining the terms of these jobs," Henry said. "With a Biden-Harris victory, we will continue to stand with rideshare drivers in their fight to improve working conditions, pay and win a voice at work."

"The problem with sectoral bargaining boils down to what workers will have to give up," said Brian Chen, the National Employment Law Project attorney. "Gig economy companies will say we have this great idea for sectoral bargaining but you'll have to give up rights and benefits like the minimum wage. Without the guarantee of a wage floor, you're left bargaining for craps of the companies' incredible wealth. When you're already guaranteed employee rights, you can bargain for better things." 

Bain said that she rejects the idea of national unions compromising with gig companies on the employment-status issue, and then bargaining on behalf of gig workers.

"The reality is that the gig workers doing this organizing are unified around the idea that building anything less than full recognition of our employment rights is bullshit," Bain said. 

"The real work is going to be done, as it always has been, by rank and file workers from the ground up. Under the absence of that, we’re going to get nothing different than we’d get under Trump. We’re not compromising or sitting down at the table with Uber or Doordash or Postmates."