Each year, Gerber & Holder Workers’ Compensation Attorneys offers a privately funded scholarship to support students in their pursuit of higher education because we know every little bit helps!
This year, we asked college students to answer the following prompt in 300-500 words:
Balancing the convenience of the gig economy with the rights of injured workers: What steps can be taken to ensure worker safety and workers’ compensation in this changing employment environment?
After reviewing the submissions, we were particularly impressed with an essay from a junior undergraduate student at Arizona State University (ASU). We’re excited to announce that Aubree Reese is this year’s winner!
Here’s her winning essay:
A Tale of Two Economies: The U.S. Gig Economy
Charles Dickens’s 1859 novel A Tale of Two Cities’ opening phrase, “It was the best of times, it was the worst of times,”[1] exposes a Victorian society that thrives from human despair. Though merely a tale, the depiction of the proliferation of our unjust gig economy is apt. During a time of political, social, and cultural unrest, the U.S. gig economy has provided millions of people the ability to work independently and is projected to increase in years to come.[2] In the best of times, this “on your own,” model ensures workers with flexibility as it allows them to create their own hours and supplement their income.[3] In the worst of times, workers make ends meet by forgoing basic protections to sustain their livelihood.[4] The question then becomes: what steps can be taken to ensure worker safety? The current proposal consists of three prongs: First, we must advocate for a worker classification model like California’s “ABC Test.” Second, we must cast away the safe harbor provided to employers. Lastly, we must elect a new National Labor Relations Board (NLRB).
Our current methodology of employee classification relies on the Internal Revenue Service (IRS) 20-factor test and the Fair Labor Standards Act (FLSA) economic realities test. Both tests contain text open to “individual circumstances,”[5] and permit employers to classify workers on the grounds of a “reasonable basis.”[6] In other words, these methods lack not only rigidity in definition but are open to an employer’s discretion and interpretation. Unlike these tests, California’s “ABC test” presumes employment.[7] If the employer desires to reclassify their employee, they must provide proof by meeting all the ABC criteria pertaining to strict definitions of direction, control, and services. If companies fail to comply with these standards, they must be held accountable.
Accountability requires implementing the second prong: casting away the safe harbor. The safety harbor originates from Section 530 of the Revenue Act of 1978. This legislation outlines that an employer is permitted to misclassify their workers under the guise of good faith.[8] A 2009 Government Accountability Office report claimed that the safe harbor was a major reason they could not examine cases of misclassification.[9] Rather than protect companies as originally intended, it has been weaponized against the working class to prevent true justice. Providing companies with this legal loophole only allows for further exploitation of gig workers.
If injustice persists, independent contractors and employees should have agency for self-advocacy. As it stands, the National Labor Relations Board (NLRB) is a counsel appointed by the President to investigate and prosecute unfair labor practice.[10] Workers classified as independent contractors are not covered by the NLRB, thus, have no federal right to organize. By lobbying for a new NLRB General Counsel, the new majority could determine that gig workers are indeed employees covered under the NLRB.
While these solutions are far from perfect, these reforms have the potential to transform the lives of gig economy workers who can’t afford to miss a day of work. Like Dickens, we must demonstrate compassion towards the disadvantaged workers of the U.S. gig economy. Until then, we are headed towards a future of work, not jobs that further divides our two cities.
Work Cited
[1] JoAnna Rottke, “‘The Best of Times, the Worst of Times,’” The Dickens Project, UC Canta Cruz, June 29, 2020, para. 3, https://dickens.ucsc.edu/programs/dickens-to-go/best-of-times.html.
[2] Marcin Zgola, “Will the Gig Economy Become the New Working-Class Norm?” Forbes Magazine, August 12, 2021, para. 9, https://www.forbes.com/sites/forbesbusinesscouncil/2021/08/12/will-the-gig-economy-become-the-new-working-class-norm/?sh=1bf1bfc0aee6.
[3] “Breaking down the Gig Economy: Key Terms to Know,” Wells Fargo, Accessed May 15, 2022, para. 5-6, https://www.wellsfargo.com/financial-education/basic-finances/manage-money/freelance-gig-economy/terms/.
[4] Laura D’Andrea Tyson, “How Can We Protect Workers in the Gig Economy?” World Economic Forum, November 30, 2015, para. 4, https://www.weforum.org/agenda/2015/11/how-can-we-protect-workers-in-the-gig-economy/.
[5] “Independent Contractor Determination.” Oregon.gov. Accessed May 15, 2022: 1, https://www.oregon.gov/ODA/shared/Documents/Publications/NaturalResources/20FactorTestforIndependentContractors.pdf.
[6] Mark Erlich, “Misclassification in Construction: The Original Gig Economy,” ILR Review, Harvard University, 2020: 8, https://lwp.law.harvard.edu/files/lwp/files/erlich_ilrr_final_article_11.28.20.pdf.
[7] “ABC Test,” Labor & Workforce Development Agency, CA.gov, Accessed May 15, 2022, para. 1, https://www.labor.ca.gov/employmentstatus/abctest/.
[8] Erlich, 8.
[9] See note 8 above.
[10] “General Counsel,” National Labor Relations Board, Accessed May 15, 2022, para. 1, https://www.nlrb.gov/bio/general-counsel.
About the winner
Aubree Reese is a junior at Arizona State University. This fall, she’ll be a transfer student attending Western Oregon University, majoring in American Sign Language Interpreting Studies: Theory.
One of her greatest passions is American Sign Language. She tells us she became passionate about sign language as a teenager when she stumbled upon a video of an interpreter signing a song. From that point on, she became transfixed and dedicated to not only mastering her ASL fluency but becoming immersed within Deaf culture.
With years of practice, she has amassed knowledge of American Deaf culture and strives to further her education. Once she receives her bachelor’s degree, she intends to pursue her master’s degree with the ultimate goal of becoming a certified interpreter.
Thanks to everyone who participated in this college essay contest, and congrats, Aubree, on your scholarship!
If you missed the deadline for this contest or you’d like to try again for the next scholarship, we invite you to visit our Scholarship page and apply for our next essay contest.
If you have any questions about the essay requirements or the selection process, feel free to contact us.
