AI and Your Unsafe Gig job – “We’re a Technology Company”?
5,500 employees die at work each year. The number is in reality even higher because severe undercounting of workplace injuries by the Government is common and has been going on for years. The workers’ compensation “remedy” for a dead employee’s surviving family is, on average, about two-thirds of the wage the employee was making at the time of death, capped in most states at about the average wage in the state (at the time of the injury leading to death). Workers’ compensation almost never actually covers workplace disease, although it formally claims to do so.
As miserly as the workers’ compensation benefit is, receipt of any amount of compensation is almost always unavailable unless a worker is an “employee.” The entire purpose of the Gig economy is to effectively transform “employees” to “independent contractors.” When I was a kid, the game was to work employees at just under full time hours for as long as possible. I worked in that arrangement with the old Flying Tiger Line back in the early 1980s. Although classified a “part time” cargo loader, officially assigned 30 hours per week, I was actually an “over, short, and damaged” freight supervisor. While the job was about as bad as it sounds, I was at least an employee: without sick leave benefits (which were not mandated by law) but theoretically eligible for workers’ compensation should I become injured. Of course, on the occasions I was injured at work – which happened three or four times over three years – I was “reminded” of the pride the company took in its “safe employer” designation in Pennsylvania. Translation: don’t file a workers’ compensation claim if you want to work here.
If you are not an employee, you won’t be subjected to soft coercion not to file a workers’ compensation claim because the assumption will be that you—as an independent contractor—are not eligible to file one. In Massachusetts, there is an intense battle over the Gig economy unfolding, mirroring California’s experience. In a nutshell, certain Gig companies are refining public referendum tactics in order to get the public (as opposed to the state legislature) to approve carving specified workers out of employment law—that is, to convert them to independent contractors as a matter of law. It worked in California—at least so far. The California appellate court’s decision upholding the Gig ballot initiative has been appealed to the California Supreme Court. Will it work in Massachusetts?
Why would the public ever agree to such a thing? The answer of course is money. The public has very little idea what is going on, and the people with the most money (the referendum proponents) have the loudest (constitutionally protected) megaphone. The California ballot initiative for the Uber/Lyft was the most expensive such corporate-backed measure in California history. I bristle at the very idea that working people could be so naïve as to uncritically accept the push for a Gig economy without realizing who is doing the pushing. Is it possible that working people don’t know that employment law not only covers workers’ compensation, it provides workers with other valuable protections? What happens if an Uber driver gets into an accident—to the driver and to any third party the driver hits? The idea that these kinds of questions will be resolved by corporation inundated ballot initiatives strikes me as a simply wild development worthy of an end-of-civilization mockumentary.
The public seems, on the surface at least, to accept the breathtaking carveouts of workers from employment law because it has been convinced that Gig work represents “freedom” and “flexibility.” It may be debatable that flexibility is of paramount importance to workers for whom Gig work represents a second or third job. The flexibility of the Gig job may be one of its most important features in the context of a supremely busy schedule. The underlying, real question, however, is how workers for whom Gig work is the primary job feel about not ever being engaged in formal employment. Is that a job that workers want (once they understand what it really is)? I doubt it.
Formal employment or employee status guarantees a worker the protections of employment laws. All kinds of laws. The right to minimum pay. The right to be free of racist or sexist or discriminatory sexual identity practices (no employment, no Title VII law). The right to worker safety (even if it in reality is lacking—no employment, no OSHA, no workers’ compensation). In a very real sense, if you don’t have access to employment you don’t have much real access to many of the values our society claims to promote. Employment is one of the primary drivers of all kinds of formally protected legal values. The Gig economy, seen clearly, is a kind of deregulated wasteland.
This is why many of the new Gig ballot initiatives are strange hybrid creations in which some employment-like access to, for example, antidiscrimination law and mandated benefits is retained. The architects of these laws have become aware of public perceptions that stripping all employment law protections could culminate in utter anarchy in the workplace. In an attempt to allay those fears, the architects of the ballot initiatives have confusingly softened the jagged edges of the proposals to mitigate fears (that I find reasonable) of looming chaos. This of course sets in motion a process of uncertain scope in which evaders of the law negotiate the terms of their evasion with a bamboozled and overwhelmed general public. Very weird, and very scary.
When I started working decades ago, I was completely uninterested in jobs that did not provide benefits or some measure of stability. The first time I ever heard of the Gig economy, I had two gripping thoughts. First, acquiescing workers reminded me of employees who resisted union organizing in the 1980s, just as easy credit was becoming more widely available. “Why should I join a union when I can have ‘all this’ so easily without representation?” Well, you can pay now, or pay later, and I think a lot of those four decades-old bills are past due. In the same vein, I think any worker trading away minimum job protections for “flexibility” will one day pay the piper in unanticipated ways. Second, I never had the slightest doubt (and still don’t) that the fly-by-night, future billionaires engineering the new “system” were simply evading law. “You don’t understand,” insist these nihilistic characters, “the economy we are building is new, new, new!”
But to the hotel room cleaners, the new looks a lot like the old. Drivers drive. Cleaners clean. Shelve stockers stock shelves. Painters paint. One clue of how quickly the Gig mythology can evaporate occurred during the pandemic. The Government provided benefits to putatively “independent” Gig workers. I’m glad it did, but it revealed an obvious truth: these workers are not independent, and (with a few exceptions) never were. Some software coders are probably independent. There are bona fide independent businesses. But not nearly so many as is claimed. Mainly, as I have said, this is a massive, quasi-criminal exercise in legal evasion. It is really end-of-Roman-Republic stuff. But anyone with a wealthy donor is not allowed to say so.
And now the AI angle. My working class family and friends are increasingly dispatched to work by companies with an interest in demonstrating they are not in control of working conditions (and hence are not employers). Who, then, is dispatching the work? The algorithm. What could go wrong? Mission accomplished – log in and watch the app do its stuff!
Some people have no reason to care about what is happening to (in particular) low wage workers in the Gig economy (though that workplace hegemon is coming for all of you requiring multiple jobs just to survive). But perhaps even non-workers should care that (as the Supreme Court of Massachusetts revealed last year) Gig companies wresting themselves from employment law also have in mind freeing themselves from the fetters of general liability law. When that Gig driver comes around the corner at high speed and causes an accident, not only will the driver not be covered by workers’ compensation (an independently catastrophic event), but a member of the general public would not be able to sue the “technology” company for negligence. That’s all right, I suppose. The tech company could not possibly have had anything to do with the hectic working conditions leading to the “accident.” Time for us all to crank up our personal insurance policy coverage.