Future of Work Podcast, Episode 3.

Bobby Silverstein, principal at Powers Pyles Sutter & Verville, PC, discusses the implications of laws related to accessible technology, such as the Americans with Disabilities Act (ADA), for a gig or project-based workforce.

This podcast is developed in partnership with Workology.com as part of PEAT’s Future of Work series, which works to start conversations around how emerging workplace technology trends are impacting people with disabilities.​

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Welcome to the Workology Podcast, a podcast for the disruptive workplace leader. Join host Jessica Miller-Merrell, founder of Workology.com as she sits down and gets to the bottom of trends tools and case studies for the business leader. HRN recruiting professional who is tired of the status quo. Now here’s Jessica with this episode of work ology. Jessica: [00:00:25] Welcome to a new series on the Workology Podcast we’re kicking off focusing on the future of work. This is in collaboration with the Partnership for Employment and Accessible Technology. You can learn more about PEAT by visiting peatworks.org. In 2017, CNN reported that the freelance economy now accounts for 34 percent of the total workforce. It is expected to grow to 43 percent by 2020. As we continue to see a substantial shift in the employment world from the traditional employee to the contract gig or freelance worker that’s taking center stage. I wanted to talk about universal access for everyone who is interested in being a part of this new fluid workforce including those with a disability. Today I’m joined with Bobby Silverstein. He’s a partner in the law firm of powers Pyles center and Freeville 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 and as a member of the team. His expertise is civil rights law for people with disabilities. Bobby, welcome to the Workology Podcast. Bobby: [00:01:36] Well, thanks for inviting me to discuss this really important issue.

Jessica: [00:01:40] Let’s talk a little bit about what universal design is first and why it’s important to kind of set the stage for us. Bobby: [00:01:48] Sure. Basically, universal design is to design and composition of an environment so that it can be understood and used by the greatest number of people regardless of age size ability or disability. Let me give you an example a web based platform used in the gig economy should create a marketplace that is accessible to and usable by all customers including the companies seeking their workers as well as potential workers with or without disabilities. So if a web based platform is accessible, usable and convenient to everyone. benefits Universal design is good design, and you asked me why is this important. Well, a representative of the US Department of Justice in testimony before a committee put it this way and I’m quoting, “Access to the Internet and emerging technologies is not simply a technical matter but a fundamental issue of civil rights. Access to information via electronic technologies is increasingly becoming the Gateway civil rights issue for people with disabilities.” He also testified that, “We must avoid the travesty that would occur if the doors that are opening to Americans from advancing technology were closed for individuals with disabilities because we were not vigilant.” Jessica: [00:03:46] I’m really excited to talk about this topic because we are talking about web place platforms today and accessibility for everyone whether you are a freelancer gig worker and you’re accessing up work Fiverr, TaskRabbit, and the many others they seem to be adding by the men and are growing by the minute. So we’re talking about this today in terms of how it impacts not only the freelance economy but also many of us who are engaging those freelance gig workers. So as a civil rights attorney, Bobbie can you share with us how some of the federal agencies responsible for enforcing our nation’s civil rights laws particularly with the Americans With Disabilities Act or ACA have applied these laws to the gig economy.

Bobby: [00:04:31] Sure. You know it’s interesting that a number of federal agencies have made the issue of the gig economy an emerging issue that is requiring some real close scrutiny. In other words to assessing interpretations based on the new gig economy for example the Equal Employment Opportunity Commission EEOC which is responsible for enforcing our civil rights laws just recently amended their strategic enforcement plan for the years 2017 through 2021. Part of the new plan says that EEOC should quote address issues related to and then they have a bunch of words but it’s related to the gig gig economy and related to complex employment relationships and structures in the 21st century workplaces focusing on temporary workers staffing agencies independent contract relationships and the on demand economy. In other words the gig economy, the IRS, Department of Labor, and the National Labor Relations Board are also reassessing the issue and providing new interpretations and looking at this issue differently. Jessica: [00:06:11] Based on your understanding of the ADA and a review of contemporary rules, interpretations, settlement agreements and case law, what guidance can you provide our listeners? Bobby: [00:06:24] Jessica kind of what your work what we’re doing here is saying the federal government is reassessing. And the answer is yes, I can and I can provide you a framework for looking at the legal and policy issues associated with the new gig economy. And I can do that by using the ADA the Americans With Disabilities Act as the basis for this framework. So to walk us through, the framework is basically recognizing that the ACA is a civil rights statute and the civil rights statute ensures not only equal opportunity but opportunity that is effective and meaningful for all. So from the perspective of businesses they should be provided the opportunity to select from amongst the best brightest and most creative individuals individual vendors also should be provided the opportunity to compete in this marketplace based on qualifications not arbitrary and capricious reasons such as disability status. Jessica: [00:08:04] What are the topic areas included in your gig economy framework?

Bobby: [00:08:08] Well, there are three basic issues or topics that I think folks should be focusing on. The first is whether a business that uses a web based platform to select gig workers whether they’re acting as employers and whether the individual vendors are considered employees the second major topic is if these vendors are considered independent contractors and the companies are not considered employers subject to the DA whether or not there are other provisions of the ACA that still apply. In other words if you’re not an employer or you’re not subject to Title I of the ADA which deals with employment discrimination but you may well be subject to Title II of the DA which deals with state and local governments or Title III which deals with public accommodations. That is businesses that do business with the public. So the second first issue. Are you as an employer in an employer employee relationship? If the answer is no, and you are an independent contractor, are you still subject to non- discrimination rules as it as public accommodations or state and local governments? The third question is whether those companies that design those web-based platforms are required to make their marketplace accessible to all including people with disabilities. And so those are the three major topics that I think we need to discuss. Jessica: [00:10:13] And these are interesting topics and they’re fundamentally different than the way we as human resources in recruiting and workplace leaders have operated. Particularly, if the conclusion in a given circumstance is that the business is not or operating an employer employee relationship and so the question is if they are an independent contractor are there still requirements and that typically does as she said go beyond what human resources folks expertise entails. It sounds like to me that if we are going to be our businesses are going to be employing contract workers gig workers individual vendors that we need to be expanding or broadening our employment knowledge. This isn’t just legal knowledge but knowledge beyond the kind of the traditional scope that we, as HR and recruiting leaders have been working in. Bobby: [00:11:17] Yes.

Jessica: [00:11:18] Well, let’s talk a little bit more about this framework and businesses that use these platforms to select gig workers are they acting as employers and whether the individual vendors are considered employees so subject to Title I of the ACA and other statutes so can you kind of give us some insights there. Bobby: [00:11:37] Sure. And the important part here is that many think as of almost by definition that workers in the gig economy are independent contractors. They come to that conclusion and that’s the end of the story. But the reality is that there were a certain definitions and certain approaches that one has to take. One does not rely on what the relationship is referred to by a company. What you are looking at is its fact specific issues and certain factors that in the case of civil rights issues the EEOC has established for determining whether or not a relationship is an employer employee relationship or an independent contractor relationship. And why is that important? Because Title I applies of Title One of the ADA only applies to employer employee relationships. It does not apply to independent contractor relationships. So what are some of the factors that the EEOC is currently looking at? One factor is the employer has the right to control when, where, and how the worker performs the job .Whether the worker furnishes the tools the materials and equipment. Whether the work is performed on the employer’s premises. Whether the worker is paid by the hour week or month rather than an agreed cost of performing a particular job. So, all these factors are currently weighed, but as I said the EEOC is reviewing this issue and they may decide to give different weight to certain factors or add some additional factors because obviously the EEOC would be interested in making sure there is no discrimination on the basis of disability, or race, gender, or national origin. And so if the employer employee relationship is found then the traditional issues that human resources folks are familiar with will come into play. You can’t discriminate in recruitment, hiring, retention, or in the advancement of people with disabilities. You cannot do indirectly that which you are prohibited from doing directly by entering into a contract or arrangement with somebody else so that if the employer/employee relationship is established and you are prohibited from discriminating on the basis of workology disability in the recruitment of folks, that means that the ADA Title One nondiscrimination provisions apply.

Jessica: [00:14:51] Let’s take a bit of a reset here. This is Jessica Miller-Merrell and you’re listening to the Workology Podcast. This is a special series on the future of work in partnership with PEAT. Today we’re talking about universal design and the freelancing gig economy with Bobby Silverstein. You can connect with Bobby on LinkedIn. He has a wealth of resources and sources and information that he shared with us. These are going to be available on the transcript of this particular podcast. You just got to Workology and type in universal design or you can go to the podcast linked down on your right side of the Web site and you can access all the resources that Bobby has shared with us because we’ve already had a ton of information thrown at us and there’s a lot more interesting things that we’re going to be talking about in just a minute. Sponsor Message: [00:15:41] Workology Podcast’s Future of Work Series is produced in has partnership with the Partnership on Employment & Accessible Technology (PEAT) is a initiative to foster collaboration and action around accessible technology in the workplace. PEAT works to help employers and companies understand why it pays to build and buy accessible technology, and how to do so. PEAT is funded by the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) You can learn more at Peatworks.org. That’s Peatworks.org Jessica: [00:16:11] So, let’s get back to it. Let’s talk about this second component of the framework. If the vendors are considered independent contractors and the companies are not considered employees subject to Title One of the ADA is the company that retains the vendor services still required to select all individual vendors including those individuals with disabilities fairly and so in their capacity as public accommodations with the with whether it’s a state or federal or local government subject to the non-discrimination provisions of Title III or Title II of the ADA. That’s a lot of stuff. So walk us through.

Bobby: [00:16:49] Yes. See that is a really, really important question particularly if those in the audience are in human resources because oftentimes if you say independent contractors civil rights attaches don’t apply. End of story, but that is not the end of this story. And before I get into the specifics of the ADA titles to Title II let me start by kind of framing this issue in terms of the current pending cases against Uber because this really explains from a policy perspective what it is we’re talking about. Bobby: [00:17:35] Now, you all may recognize that what Uber is doing is they’re arguing that the drivers are not employees and thus Uber is not an employer and therefore complaints by drivers should not be treated as allegations of employment discrimination whether it’s Title VI: race gender or national origin or Title One of ADA, disability discrimination. Instead Uber’s theory is that the drivers just like the passengers our customers and they’re paying for access to the web based platform. Thus, if Uber convinces the court that it isn’t in the taxi or driving business at all, but instead is merely creating an online marketplace through its web based platform. Then the result should be that the driver may stake their claims as customers requiring fair access to the marketplace. In other words companies can’t have it both ways. If an individual vendor is not an employee and rather the individual vendor is a customer, they should be entitled to equal opportunity as public accommodations under Title III of the ADA. Now, recently several circuit courts of appeals around the country and for those lawyers in the audience the 5th , 9th , and 10th Circuit have interpreted a law comparable to the ADA called Section 5 4 of the Rehab Act which is nondiscrimination by recipients of federal aid. And they dealt with this exact issue and they said under 504 there is no employer employee relationship in the given situation. Therefore, Title one of the ADA doesn’t apply, but they didn’t stop there yhey said that the entities are independent contractors and they are subject to other provisions of the 504 as programs or activities of the entities. So, when we look at the structure of 504 and the ACA we see this comparability. In fact Title 1 is based on 504. We see Title 1 is employment, but we also see that the ACA has title to state and local government Title III public accommodations and in my opinion it may well be that companies who are seeking workers in the gig economy
may be considered public accommodations because they are customers like Uber says. That’s what Uber said in their argument. They are customers also and we’ll see, but I think a very strong argument could be made. And if they are considered independent contractors in the gig economy that means that they need to treat all of the vendors in a non-discriminatory way. They cannot contract or make arrangements with somebody else like those having the marketplace. The web based platform they cannot contract with them if the effect is to deny equal effective and meaningful opportunity to people with disabilities.

Jessica: [00:21:56] This is all a lot to take in because this fundamentally changes the way that maybe we as business owners or business people are H.R. recruiters or who ever use these web based platforms. So do you think that these platforms have a responsibility to designing market places that ensure all parties including vendors and those with disabilities have access to the digital freelance marketplace. It sounds like you do but I just want to make sure. Bobby: [00:22:24] Sure it could be under different theory under Title I of the ADA employment discrimination. It not only covers employers but also includes employment agencies and an employment agency is is defined as an agency that regularly procures employees for at least one employer. Now, typically these web based platforms probably won’t be considered employment agencies, but I don’t want to dismiss that as never because they may again based on the facts and the factors that I described earlier. Let’s assume they’re not an employment agency. They’re an independent contractor. Now, the Department of Justice, and I don’t know about 200 settlement agreements have decided that web-based online systems and mobile apps and other forms of information and communication technology must be accessible to and usable by people with disabilities. That’s under Title III and a member of the settlement agreement or with entities that only do business online.

Jessica: [00:24:03] So you mentioned the employee employer relationship exists and discrimination including enter into contracts or other arrangements with these third parties could have a discriminatory effect example entering into an arrangement when an entity that establishes a marketplace via a web based platform that discriminates someone on the base of their disability. How can employers or companies tell if these companies and these web based platforms are compliant? Bobby: [00:24:31] Well, I don’t know how they can tell for sure, but if I were them I would be entering into indemnification agreements which are part of the contract which says that there’s a certification that they’re web-based platform is accessible to and usable by people with disabilities. And I would say in accordance with what is called WCAG 2.0, web content accessibility guidance which are international standards which have now been included in all of those 200 settlement agreements that I made reference to and are also included in Section 508 of the Rehab Act which requires accessibility of ICT by federal agencies. So the answer to your question is if I am a company contracting with an entity to secure the work of gig workers I would be including an indemnification clause. Jessica: [00:25:44] Bobby thank you so much for joining us today. Where can people learn more about you and what you do. Bobby: [00:25:51] Well I would probably refer them to the PEAT Web site which I’m sure you have information on. I’ve done a lot of work for them dealing with accessibility of Web sites online systems mobile apps etc. from an employment perspective. And just one last comment if I could Jessica, I just again want to make it clear that I believe that these web-based platforms, they must also be accessible independent of the employer or the independent contractor who contract or uses those platforms. Now there is a little controversy in that there were a number of circuits again for the lawyers the 1st , 2nd , 5th , and 7th Circuit say you don’t have to have a physical store. Other circuits say that if you have a web-base part of your business there has to be a nexus to the actual physical store. So there is some disagreement there as to when these entities like those web-based platforms in the gig economy are subject to Title III of the ADA.

Jessica: [00:27:20] Well one thing’s for certain. This is a moving target with a lot of information in different pieces so we will be sure to check back in with you to see where we are maybe here in 6 months or so. Bobby: [00:27:35] That’s a great idea. All right well thank you so much again. I enjoyed having you on the podcast. Jessica: [00:27:40] Okay, wonderful thank you. Jessica: [00:27:43] As the workplace changes so should our obligation as employers and clients to freelance and gig economy workers. We need to be mindful of that just because the employment relationship may have changed. Our legal obligation has likely not universal design and inclusion is critical for employees freelancers and good workers too. Sounds like it might be time to add civil rights training to your leadership training as well as your own H.R. development learnings. Thank you for joining the work Algy podcast a podcast for the disruptive workplace leader who’s tired of the status quo. This is just Miller or. Until next time you can visit Workology.com to listen to all our previous pocket’s episodes. Have a great day.