Mosqueda introduces bill to require paid sick & safe time to some gig workers

This week Council member Mosqueda introduced a bill that would require certain companies that rely on “gig economy” workers to provide paid sick and safe time to those workers for the duration of the COVID-19 emergency.

The ordinance would apply to companies that provide food delivery service, such as DoorDash and Postmates, as well as to Uber, Lyft, and other “transportation network” companies. The rationale is simple: throughout the emergency, those “gig economy” drivers are providing an essential — and highly utilized — service, but are coming into contact with many people and could potentially be “super-spreaders” of COVID-19 if working while contagious. From a public health perspective, it is in everyone’s best interest to ensure that those workers stay off the job while sick. But since gig workers are categorized as independent contractors, they currently do not accrue paid sick and safe time under the state and local laws. The potential loss of income is unfortunately a strong disincentive to stay home when sick.

Mosqueda’s bill is complex, since the relevant gig workers control their own schedules and that makes calculating both the accrual and payment of sick and safe time challenging. Generally speaking, workers would accrue one day of paid sick and safe time for every 30 days worked; assuming a five-day work week, that equates to about nine days per year, roughly equivalent to what most full-time employees accrue. But the ordinance also requires employers to credit workers with some amount of sick and safe time for past hours worked, using one of two formulas (at the employer’s discretion):

1. accrual starts on October 1, 2019, or when the worker began working for the company, whichever is later, and provides one day for every 30 days worked between then and the effective date of the ordinance;
2. gig workers begin with five days of sick and safe time.

In either case, moving forward the workers would accrue an additional day for every 30 days worked. A “day worked” is any day where the worker makes at least one work-related stop within Seattle city limits, excluding rest/meal breaks and refueling. Workers would continue to accrue paid sick and safe time until 180 days after the COVID-19 emergency has been lifted at both the local and state level.

The formula for calculating the rate of pay for a sick and safe day is also complex. Workers will be paid their “average daily compensation,” which is their average daily income during their highest-paid month, once again looking back to the later of October 1, 2019 or the start of employment. Going forward, the average daily compensation would be recalculated every month.

Workers may use paid sick and safe time for several different reasons, consistent with the city’s rules for ordinary employees. Those reasons include:

• for a personal physical or mental illness, injury or health condition, to accommodate medical diagnosis or care, or for preventative medical care;
• for care of a family member for the same purposes;
• if a company has suspended operations by order of a public official, for any health-related reason;
• when the worker’s family member’s school or place of care has been closed;
• for several reasons related to domestic violence, sexual assault, or stalking.

A worker may only use accrued sick and safe time if she or he has performed work for the company in the prior 90 days. The time is used in daily increments; after three consecutive days of paid sick and safe time, the company has the right to require verification of the reasons for use. The ordinance expires on December 31, 2023, or three years after the termination of the COVID-19 emergency declarations, whichever is later — so workers will have until then to use their accrued sick and safe time.

The Council members were briefed at Monday morning’s Council Briefing on the details of the bill. The bill has been referred directly to the full Council, rather than to a committee; Mosqueda originally hoped that the Council could consider amendments and vote on the final bill next Monday, but at the request of several of her colleagues she has agreed to wait an extra week. That’s a good thing, because there will be several issues for them to consider in trying to perfect the bill.  Among them:

• The way that “average daily compensation” is calculated is strange, in that it never goes down, even if a driver works less over time. That’s because it’s based upon the average daily pay not over the entire time a worker has been employed by the company, but only during the highest-earning month. It could go up if in the future a worker puts in a new high-earning month, but it can never go down. A worker could game this by concentrating their hours in a single month to establish a high bar, and then coasting on that afterward. That’s not something that a full-time gig worker would benefit from, but some part-time workers will definitely figure this out.
• Also, average daily compensation is based on all hours worked, not just the ones worked in Seattle. That will create some perverse incentives for workers based outside the city to spend more time in Seattle.
• Similarly, in order to accrue a “day worked” a worker needs to make just a single stop in Seattle that day.  So someone with a high average daily compensation based upon one big month could accrue days by making just a single trip in Seattle on any given day. We could also see a lot of Bellevue-based Uber drivers making one trip a day over the bridges.
• Enforcement is the responsibility of the Office of Labor Standards. (OLS). Unfortunately, that department has seen a significant increase in its workload with the new worker-protection ordinances passed by the Council recently, while its headcount has not kept pace — and currently the City of Seattle has a hiring freeze in place due to the COVID-19 budget crisis. Mosqueda’s bill makes no provision for increasing staffing at OLS, and some Council members expressed concern that “austerity budgeting” might drive cuts in the department’s staffing level.

Despite the weaknesses in the bill (all of which could be addressed through amendments), the ability for individuals to “game” it is tempered somewhat by the limited life of the bill: once workers can no longer accrue days or influence their average daily compensation — six months after the emergency lifts —  then it’s only a matter of spending out the accrued balances.

The Mayor is taking a noncommittal approach on the legislation so far. A spokesperson for the Mayor’s Office provided the following statement:

“We are following the bill and look forward to seeing it in its final form. We’re proud of our legacy of expanding rights to gig workers starting with domestic workers and continuing with Fare Share, and are glad to hear that Council is working with stakeholders this week to anticipate any unintended consequences.”

 

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