The “gig economy” is where more and more people are finding work. This allows for greater flexibility for workers who do not want to be tied to one job or who have to balance earning a living with family obligations. However, this allows employers to avoid providing benefits such as health insurance and allows companies to deny that they are even an employer.
This has serious consequences when people get hurt. If you drive your own vehicle to deliver packages for Amazon Flex or to carry passengers for Uber or Lyft, they will deny that you are an employee when you get injured. They will refuse to pay the benefits to which you are entitled under the Workers’ Compensation Act. Benefits are paid to employees but not independent contractors. Companies will claim that gig workers are not employees but are independent contractors.
The Courts have found drivers for a pizzeria and for licensed taxi companies are employees. There are no decisions regarding drivers for gig economy companies such as Amazon, Uber or Lyft yet. Gig economy companies say that all workers are paid by 1099. This is only one factor in determining whether somebody is an employee.
The Illinois Workers’ Compensation Commission and the Courts will look at the following factors:
1. The right to control the actions of the driver. This is the most important factor. The more requirements the company has for its drivers and the greater the company’s ability to discipline or terminate a driver will be seen as a sign of employment. The more that a driver is free to do the job any way they want to do it the more they will be seen as an independent contractor. The use of an App and the way the App controls the way the job is done may be a sign of employment.
2. The relationship between the work performed and the overall business. In these cases the work is delivering packages or carrying passengers. This is exactly what these companies do. If would be much different if for example, our law firm hired a painter to paint our walls. We are not in the business of painting.
3. Lesser factors include the method of payment (just because they pay with a 1099 does not necessarily mean the driver is an independent contractor); what the parties call the relationship (just because the driver signs a document saying he/she is an independent contractor does not make it so); the skill level required to do the job( a person with higher skills is more likely to be found to be an independent contractor in some cases)
Amazon differs from Uber and Lyft. Amazon has so-called company drivers who are employees and deliver in the same way that drivers for companies like UPS and FedEx deliver. If the Amazon Flex drivers who are using their own car are really doing the same thing as the company drivers they should eventually be seen as employees. This is similar to truck drivers who are owner-operators driving for a larger carrier that also has employees driving company trucks. If they are controlled and dispatched the same way, they are both employees. This should be the same for Amazon and Amazon Flex.
Uber and Lyft say they are not in the taxi business but they are in the technology business providing an App. Passengers who have been injured by Uber and Lyft drivers have successfully sued the companies. The next step will be for those drivers to be seen as employees and be paid workers’ compensation benefits.
We are fighting for gig economy workers who get hurt on the job. The companies do not see them as employees and we are working to make sure they get the same protection as employees of licensed taxi companies and pizza drivers.