Opinion: Bills Meant To Help Gig Workers Could Hurt WFH Parents
When my girl was a newborn, she was sick every other day in the winter. My inability to be in the office eight hours a day led to friction at my full-time job. I was ultimately let go. I thought motherhood would doom me to poverty. I couldn’t conceive of a full-time job that paid enough for full-time day care, and, like many parents, I found my way into the gig economy working as a freelancer.
A 2016 survey by Prudential found that 16% of people who exclusively worked in the gig economy were stay-at-home parents. The upside is the ability to work flexible hours from home, but the downsides include a lack of predictable paychecks, and the need to self-fund benefits and retirement savings. These are some of the issues a raft of new bills across the U.S. have set out to address.
The controversial AB5 bill passed in California and will become law in January. It supposedly codifies the definition of “independent contractors” (ICs), as opposed to “employees.” Put simply, if a worker does not pass the “ABC test” outlined in the bill determining that she is an IC, the employer must grant full her employee status, with full benefits.
AB5 exempted certain industries, such as commercial fisherman and realtors, but it also added some baffling addendums, including an annual 35-submission cap for writers working with a single publication. Writers have complained that this will destroy their career. California truckers filed a lawsuit against the state, arguing that the bill is untenable.
In theory, these bills might sound pretty great for workers, especially in a country where gig workers are toiling around the clock without benefits — some companies aren’t paying disability or unemployment taxes, which is one reason for states to tie up loose ends.
However, as written, the ABC test could put millions of freelancers out of business — including those willingly working under current conditions — many of whom are working mothers. Many employers will likely look to different states or employees rather than pay for full-time benefits. Yes, the gig economy leaves some holes in the safety net, but neither can we pretend that full-time employment is secure and infallible.
The U.S. needs laws to protect gig workers. I personally understand that all too well. But this legislation, currently making its way through New Jersey and New York legislatures, is not the answer.
Several years ago, I worked full-time at a large corporation. I wasn’t technically staff. I worked eight hours a day, five days a week in an office, but I received no paid time off and no benefits. I filled in a timesheet as if I was an hourly worker, yet I was given a staff title and staff responsibilities. I never once met an HR representative. I was verbally discouraged from freelancing elsewhere.
This went on for years before I finally quit. Some of my colleagues worked under these conditions for a decade. The company’s CEO was notably one of the highest-paid people in existence.
Most of us can agree that this behavior needs to be illegal. Whatever loopholes that company used, they must be sealed with cement and thrown into a river.
A great deal of us are moms — like me — who can’t work a full-time job, pay for daycare, and have a family at the same time.
I found a lifeline in gigging. I write for several outlets, some of them regularly, and I live harmoniously with the editors. Benefits would be nice, but the ability to work while being a mother is far more valuable to me. I wish I didn’t have to choose. I wish I didn’t have to pay $1,900 a month in premiums for New York market insurance (isn’t that a really big problem that should be addressed first?), but at least I can have a career. I, and working moms like me, have miraculously made it work in a system that punishes us at every step.
About one-third of New York City dwellers have freelanced in the past year, most of them work in media. Our city would fall to its knees without ICs. I volunteer as an admin for a New York Facebook group with hundreds of freelancers, and frankly, we’re scared. Members include freelance writers like myself, teachers who work on the remote China-based platform VIPKid, realtors, direct sales reps, small business owners who depend on freelance labor, transcribers, film professionals, consultants, travel agents, performers, and many more. A great deal of us are moms — like me — who can’t work a full-time job, pay for daycare, and have a family at the same time.
Donna Liquori, a freelance writer from Albany, New York, said that gig work allows her to earn an income while accommodating her child with special needs. When local schools weren’t serving her daughter, Liquori began driving her 60 miles a day to an alternative school. Liquori said her daughter is thriving there, and that gig work makes the trek possible.
“While she is at school I am able to work in a library, or in a coworking space, coffee shops, and it’s fine. I’m able to do my work and also be in the vicinity so I can pick her up and take her home,” Liquori said. “If the bill passes as is, it would be really stressful. I may have to take her out of school… It’s unknown. That’s what’s scary to me.”
Other group members are disabled and encouraged to take on remote gig work. Disabilities advocate and former litigator Haben Girma says that people with disabilities may be gravely affected by these bills.
“Many disabled New Yorkers rely on independent contract work for flexible employment. What about disabled New Yorkers who can’t afford to offer their sign language interpreters, readers, or personal care attendants full-time employment instead of flexible independent contract work? ” says Haben.
The ABC test in the S6699A bill in New York, sponsored by Senator Robert Jackson, is currently full of holes and difficult to decipher, so I spoke with an employment lawyer about each of the individual stipulations. Mercedes Colwin is a corporate litigator and founding partner of the New York office of Gordon Rees Scully & Mansukhani LLP,who agreed that the wording is strange.
“Right now, an employer can make an argument that people working remotely are not really employees,” says Colwin. “They say ‘they don’t have a desk here, they don’t have an office here.’ Legislatures are trying to stop that by using the word ‘control,’ because you can have control [over] someone even if they’re remote,”she says. “But … it’s not clear.”
Colwin says she had a difficult time coming up with any type of contractor who would pass muster as an IC.
I can’t substitute teach. I can’t go get a full-time job because of my kids.
Ballston, New York, resident Charlene Dubuque has four children, one of whom has violent outbursts and has been hospitalized for bipolar disorder. In order to handle his appointments, Dubuque needs to dictate her own hours. She works in direct sales in books, she substitute teaches, and she also works about 12 hours a week on the app VIPKid.
“I do [VIPKid] to pay off debt, buy food, that sort of thing,” Dubuque says. “I don’t want to be an employee. I have a Master’s degree. If I wanted to be an employee I would get a real job. I am doing this for the flexibility… A lot of us go into it knowing what the tradeoff is, and we’re okay with that.”
Even if everything turns out fine, these pieces of legislation, perhaps unwittingly, have sown a very dangerous panic among employees and employers alike. Already, employers like the transcription service Rev.com have backed away from hiring freelancers in California, where laws are more protective (Rev is an allegedly exploitative employer, per New York Times reporting). VIPKid reportedly put a halt on hiring new contracts in California, per reporting in Rochester’s City Newspaper.
“During the summer my business goes dead,” Dubuque says. “I can’t substitute teach. I can’t go get a full-time job because of my kids. I’m so scared of losing VIPKid because we’ll have no money.”
At least in New York, legislators have assured me and members of the group over the phone that they plan to amend the existing bill to minimize collateral damage. During a hearing in Albany on December 5, Assemblyman Marcos A. Crespo heard from many organizations, including mine, app-based platforms like Handy, the AFL-CIO, the New York Taxi Worker’s Alliance, the Legal Aid Society, and more.
Crespo called the language in AB5 “vague” and invited participants to suggest ways to improve the bill.
“It’s difficult because every company and industry operates differently. There are so many nuances. I don’t think you can account for it in three questions. That is part of the challenge,” Crespo said during the hearing. “But I think it’s creating that balance of benefits and protections for folks who are out working and making a living. Flexibility is important but also so are the rights and protections, that we want to demand businesses to provide.”
The consequences of these bills are enormous, no matter which side you fall on. It could spell doomsday for freelancers, as well as employment opportunities in general.
“This is going to affect so many working parents,” said Colwin. “You’ll be tasking employers with greater salary roles, greater taxes, and when employers are faced with that type of financial burden there's gonna be less opportunity.”
Until the bill language is crystal clear, the panic will only keep spreading. If you’re a mom who works freelance, find out if your state is working on its own version of this bill, or working to codify an old ABC test. (I am not civically minded. I found out about the New York bill only because I dug for it.) Fight these laws so that they are clear and useful to you and your family. Write to your senators and assembly members. Call them. Show up to hearings. Use your voice. The law stands to affect everyone, but especially parents — because that gig lasts a long time.
Editor's note: A previous version of this article misnamed Senator Robert Jackson. It has been updated.