Universal Access to the Gig Economy for People with Disabilities
PEAT Interview with Bobby Silverstein
As part of our Future of Work series, PEAT has been exploring how coming technology and policy trends may impact people with disabilities at work. The following interview explores the growing gig or freelance economy.
PEAT sat down with Bobby Silverstein, a principal in the law firm of Powers, Pyles, Sutter, and Verville, PC. Bobby is also the former staff director and chief counsel of the U.S. Senate Subcommittee on Disability Policy when the Americans with Disabilities Act was signed into law. He is an expert in civil rights laws for people with disabilities and frequent contributor to PEAT.
The views expressed during this interview are those of the interviewee and do not necessarily represent the views of PEAT, the Department of Labor, or any other agency or organization. The interview does not provide legal advice; readers need to consult their own attorney.
PEAT: What is the gig economy?
BOBBY: The gig economy is a domain where companies enter into contracts or other arrangements with workers for specific short-term projects or “gigs.” Examples of gig economy workers include:
- Drivers for Uber, Lyft, or Sidecar;
- Any freelancer, such as a writer, photographer, consultant, artist, or journalist;
- Worker for a temporary agency; or
- Someone who is available for hire on certain platforms/websites.
Gig economy workers complete tasks on a project-by-project or client-by-client basis by sharing and selling services and goods on web-based platforms. These web-based platforms serve as marketplaces for how workers/other users and companies interact in the gig economy. Firms creating and operating web-based platforms are the ones that decide how to structure, elicit, and act upon customer feedback. These firms also decide whether the platforms are accessible to and usable by individual vendors, including individuals with disabilities.
PEAT: How are the federal agencies responsible for enforcing our nation’s civil rights laws applying these laws to the gig economy?
BOBBY: The applicability of our nation’s civil rights laws to the gig economy is an emerging issue and just now coming under close scrutiny by federal agencies responsible for interpreting and enforcing these laws.
For example, the Equal Employment Opportunity Commission (EEOC) recently included in its Strategic Enforcement Plan for 2017-2021 the following: “Address issues related to complex employment relationships and structures in the 21st century workplaces, focusing on temporary workers, staffing agencies, independent contractor relationships and the on-demand economy.”
Similar efforts to analyze the applicability of federal laws to the gig economy are currently underway by the Justice Department, IRS (FICA and other federal taxes/tax status), Department of Labor (wage and hour), and National Labor Relations Board (collective bargaining).
PEAT: Based on your understanding of the Americans with Disabilities Act (ADA) and a review of contemporary rules, interpretations, settlement agreements and case law, is there a framework for determining whether and how to ensure universal access to the gig economy for people with disabilities?
BOBBY: Yes, it is possible to create a framework for assessing whether and how to ensure universal access to the gig economy for people with disabilities. I would suggest using the titles of the ADA, including Title I (employment), Title II (state and local governments) and Title III (public accommodations i.e., businesses providing goods and services to the public) as the foundation for the framework.
The ADA is a civil rights statute ensuring that people with disabilities enjoy opportunities to participate in the gig economy that are equal to and as effective and meaningful as those provided to others.
- Businesses should be provided the opportunity to select the best, brightest, and most creative individuals.
- Individual vendors should be provided the opportunity to compete in the marketplace on the basis of their qualifications and not be excluded or denied opportunities based on arbitrary and capricious reasons such as disability status.
More specifically, businesses participating in the gig economy should consider using the framework to address the following issues:
- Whether the businesses that use the web-based platforms to select gig workers are acting as employers and whether the individual vendors are considered employees subject to Title I of the ADA.
- If the vendors are considered independent contractors and the companies are not considered employers subject to Title I of the ADA (and other civil rights acts), whether the company that retains the vendor’s services is still required to select vendors based on their qualifications to perform specified tasks, in their capacity as public accommodations (or state and local governments) subject to the nondiscrimination provisions of Title III (or Title II) of the ADA.
- Whether the company designing the web-based platform is required to ensure that the marketplace offered through its web site provides equal, meaningful, and effective opportunity to all vendors, including vendors with disabilities.
- Is the company operating the platform an employment agency subject to Title I of the ADA?
- Is the company operating the platform a public accommodation subject to Title III of the ADA?
- Is the platform accessible to and usable by all, including individuals with disabilities?
- Does the platform include questions and analyze answers in a manner that is neutral or do the algorithms used to analyze the data result in discriminatory treatment of certain vendors on the basis of disability?
PEAT: What about businesses that use web platforms for gig work? Are they acting as employers and are the individual vendors considered employees subject to Title I of the ADA and other civil rights statutes?
BOBBY: A company procuring services or goods in the gig economy must determine whether it is considered an employer and the workers are considered employees. If an employer-employee relationship has been established, the company is subject to the nondiscrimination provisions of Title I of the ADA (employment discrimination). Title I of the ADA does not, however, cover independent contractors. The determination of whether an employer-employee relationship exists is fact-specific and depend on certain factors assessing the extent to which the company controls the means and manner of the worker’s work relationship, regardless of how the parties refer to the relationship. Factors indicating that a worker is in an employment relationship with an employer include:
- The employer has the right to control when, where, and how the worker performs the job.
- The worker furnishes the tools, materials, and equipment.
- The employer has the right to assign additional projects to the worker.
- The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
If an employer-employee relationship exists, discrimination under Title I of the ADA includes entering into contracts or other arrangements with third parties that have a discriminatory effect e.g., entering into an arrangement with an entity that establishes a marketplace via a web-based platform that discriminates on the basis of disability.
PEAT: Please discuss the second component of the framework—if the vendors are considered independent contractors and the companies are not considered employers subject to Title I of the ADA, is the company that retains the vendor’s services still required to select all individual vendors subject to the nondiscrimination provisions of Title III of the ADA (discrimination by public accommodations i.e., entities doing business with the public)?
BOBBY: Let’s use the pending cases against Uber to illustrate how I would approach this question. It is my understanding that in cases pending around the country, Uber is arguing that since drivers are not employees and thus Uber is not an employer, then complaints by drivers should not be treated as allegations of employment discrimination under Title VII of the Civil Rights Act or Title I of the ADA. Instead, it is my understanding that Uber’s theory is that drivers (just like passengers) are its customers, paying for access to the web-based platform. Thus, if Uber convinces courts that it isn’t in the “driving” business at all but instead is merely creating an online marketplace through its web-based platform, then the result should be that drivers may state their claims as customers seeking fair access to the marketplace offered on the web-based platform rather than as employees seeking fair employment opportunities.
In other words, companies cannot have it both ways. If an individual vendor is not an employee and the company seeking workers is not an employer, then a complaint should not be treated as one alleging employment discrimination. Rather, the complaint should be considered as one alleging that the company, in its capacity as a public accommodation, is engaging in discriminatory acts against vendors with disabilities in violation of Title III of the ADA. The discrimination is the entering into contracts or other arrangements with entities that fail to design and implement a nondiscriminatory marketplace (web-based platform) and which have the effect of denying vendors equal opportunity to be selected during the procurement process.
PEAT: What is the responsibility of the companies designing web-based platforms used in the gig economy?
BOBBY: The entities establishing the marketplaces via web-based platforms may also be considered public accommodations under Title III of the ADA and required to make their websites accessible to and usable by people with disabilities and design platforms that include questions and answers that are neutral and nondiscriminatory.
The Department of Justice has entered into numerous settlement agreements with public accommodations and state and local governments requiring that their web sites, online systems, mobile apps, and other forms of information and communication technology are accessible to and usable by individuals with disabilities. Other settlement agreements require that criteria e.g., questions and algorithms used to analyze answers/data must be neutral and not have discriminatory effects.
Settlement agreements with DOJ have been entered into by companies that only use web sites as their sole mode of business i.e., they do not have a physical store. In addition, a number of U.S. Circuit Courts of Appeals have held that companies operating web sites (platforms) are subject to Title III of the ADA, regardless of whether they have a physical store. (1st, 2nd, 5th, and 7th). It should be noted that other circuits require a physical store or nexus between the web site and a physical location (3rd, 4th, 9th, and 11th).
PEAT: If you were to boil this down, how would you advise companies to approach the gig economy?
BOBBY: First, a company procuring services or goods in the gig economy must determine whether it is considered an employer and the workers are considered employees. If an employer-employee relationship has been established, the company is subject to the nondiscrimination provisions of Title I of the ADA. Title I of the ADA does not, however, cover independent contractors. Likewise, if the company making available the web-based platform is serving as an employment agency, it is subject to the nondiscrimination provisions of Title I of the ADA. These determinations are fact-specific and depend on certain factors assessing the extent to which the company controls the means and manner of the worker’s work relationship, regardless of how the parties refer to the relationship. If an employer-employee relationship exists, discrimination includes entering into contracts or other arrangements with third parties that have a discriminatory effect e.g., entering into an arrangement with an entity that establishes a marketplace via a web-based platform that discriminates on the basis of disability.
Second, even if there is no employer-employee relationship or an employment agency-applicant relationship exists, a company operating in the gig economy that procures goods or services is still required to provide equal opportunity in the selection of individual vendors, in its capacity as a public accommodation. Public accommodations may not adopt criteria or methods of administration or enter into contracts or other arrangements that deny equal, effective, and meaningful opportunity to its customers, including entering into arrangements with entities that provide marketplaces via platforms on websites that are inaccessible to and unusable by individuals vendors with disabilities and/or that include questions and answers that are discriminatory.
Third, the entities establishing the marketplaces via web-based platforms may also be considered public accommodations and required to make their websites accessible to and usable by people with disabilities and design platforms that include questions and answers that are neutral and nondiscriminatory.
PEAT: Did we miss anything else you would like to share in closing?
BOBBY: Companies should embrace the concept of “universal design” i.e., ensure that the greatest number of people can participate in the gig economy free from discrimination. Whether an entity participating in the gig economy is subject to the provisions of the ADA is less important than whether the company embraces the concepts of universal design, the policy underpinning of the ADA. Companies procuring goods and services through the gig economy should consider adding indemnification provisions in agreements with entities offering web-based platforms (marketplaces) requiring that their platforms are accessible to and usable by people with disabilities.
I am including more resources below and I have also written a more extensive background document which goes into more depth on some of the issues raised above.
- U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan Fiscal Years 2017 – 2021
- How is the Department of Justice Addressing Website and ICT Accessibility?
- National Labor Relations Board Office of General Counsel Advice Response Memo Misclassification of Employees as Independent Contractors (December 18, 2015)
- Department of Labor Wage and Hour Division Memorandum: Joint Employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act. (January 20, 2016).
- EEOC Compliance Manual Section 2: Threshold Issues
- Flynn v. Distinctive Home Care, 812 F3d. 422 (5th Cir. 2016)
- Fleming v. Yuma Regional Medical Center 587 F. 3d 938 (9TH Circuit, 2009); cert. denied, 561 U.S. 1006 (2010)