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Virus-Stoked Instacart Strike Exposes Risks for Gig Workers (1)

March 31, 2020, 2:15 PMUpdated: March 31, 2020, 8:12 PM

Instacart Inc. workers who chose to strike this week felt they had no choice: They say they’re fighting for the online grocery-delivery company to provide them with better safety protections and pay for risking their lives to handle customer orders during the novel coronavirus pandemic. But the workers’ decision to walk off the job is made more dangerous by the very legal reality that blocks their efforts to gain additional workplace protections and benefits in the first place.

The public health crisis has triggered a rise in demand for grocery-delivery services and given gig workers newfound leverage to press for protections they’ve long been denied because they are considered independent contractors, not employees. Because they are not employees, however, contractors aren’t protected by the National Labor Relations Act if they participate in a strike, putting them at risk of being fired.

“Accepting the company’s classification as independent contractors is a legal question, which has been a difficult hurdle for them to overcome from the start,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. “If they are employees, they have rights, but federal labor laws do not protect people who are independent contractors.”

“Unfortunately for workers in this country right now, it’s difficult for them to access an effective way to stand together,” she added.

The Instacart strike is one of several worker protests sparked by the pandemic. Amazon.com Inc. employees went on strike at a Staten Island, N.Y., warehouse, and organizers called for workers at Amazon-owned Whole Foods to organize a mass “sickout” on Tuesday. As the pandemic has tightened its grip on daily life in the United States, workers across the country have pointed to their service of providing food, medicine, and other essentials in an effort to leverage better working conditions.

Some Instacart workers—the company calls them “personal shoppers"—are part-time employees, but many others are considered independent contractors, like most Americans working in the gig economy.

The scope of the Instacart strike wasn’t immediately clear on Tuesday. The company, boosted by pandemic-related demand, announced plans this month to sign up 300,0000 new workers, in addition to making some changes to help its existing workforce, including a promise to provide health supplies. It said the strike had no effect on business after its first day on Monday, and orders have soared from just a week ago as coronavirus fears led more people to use the service.

Organizers of the job action disagree on the strike’s impact. They said Tuesday their group numbers as many as 15,000 workers and that participants reported some service zones had no delivery options available. They also said they are active on social media, and are pushing to gain support from public officials. That could be crucial to how the strike plays out.

”Additionally #Instacartstrike was trending. This will absolutely hurt them,” Sarah Clarke, an organizer for the Instacart workers, said Tuesday.

The workers likely won’t be fired or denied access to the platform for participating in the protest, said Charlotte Garden, an associate professor at the Seattle University School of Law whose work focuses on labor, technology, and the Constitution.

“With the public’s focus on the safety of front-line service workers, I can’t think of a move more likely to backfire than firing workers who are demanding better safety measures,” Garden said.

The struggle instead will be to effectively organize and inspire solidarity among workers who don’t know one another because they don’t work in a traditional office setting, she said. Individual workers likely will be squeezed by financial pressures, if they aren’t already.

Further, workers facing unemployment in other sectors have turned to food-delivery apps for work to pay their bills, giving the company new ways to meet its labor needs if the job action is long-lasting. Instacart said in a statement on Monday that it saw 40% more workers on the platform compared to the same time last week.

Raising Consumer Attention

The job action among Instacart workers comes a year after a one-day strike of more than 10,000 Los Angeles-based rideshare drivers and nearly 11 months after a worldwide day of rideshare work stoppages on the eve of Uber’s initial public offering.

Those two gig-worker strikes didn’t achieve substantive change at Uber or Lyft, but succeeded in drawing consumer attention to the battle over whether the workers should be considered employees or contractors. The Los Angeles strike also boosted the efforts of Rideshare Drivers United, a group advocating for employment status and eventual unionization for rideshare workers.

Such protests shine a light on cracks in the economy that haven’t been addressed amid the proliferation of online platforms, said Anastasia Christman, director of the Worker Power Program at the National Employment Law Project.

“It’s an increasing pattern where employers more and more abdicate responsibility for working conditions,” Christman said. “The workers deciding to walk out is the only tool at their disposal to be able to draw attention to the problems. If it’s widespread enough, strikes can work to draw attention to the shortcomings in the workplace.”

Organizers with the Gig Workers Collective have sought to gain a public-relations edge over Instacart through a series of Medium posts, one of which said a worker in the Cambridge, Mass., area received notice that they had worked alongside an infected worker in handling a recent order. “This is the exact worst-case scenario we wrote about when giving reasons for a strike,” the organizers said.

The company on Sunday said it would distribute health and safety supplies for full-service workers and introduced a customer tip default setting to help workers earn higher tips. Workers’ earnings have increased more than 40% in the last month due to the rise in demand, it said, and tips for workers have jumped by 30%.

Classification Question

Those concessions weren’t enough to satisfy organizers and workers. But for online platforms that maintain their workers are independent contractors, pandemic-related changes to workplace conditions could influence how courts view the degree to which a company controls a worker’s environment—an important criterion for determining whether a contractor should be classified as an employee.

“If the company were to say, ‘Here, we give you all these things the way we would protect employees,’ that’s really the challenge,” said Shannon Farmer, a partner at Ballard Spahr who represents employers in labor and employment law matters. “They will have to weigh the risk for what it means for their business model and if the demands are workable under the circumstances or not.”

The U.S. Court of Appeals for the Third Circuit recently sent a case against UberBlack back to trial, arguing that there could be evidence the company had control over the workers, signaling the potential for a closer look at the question of whether some gig work should be considered a traditional employment relationship.

Instacart recently lost a battle with the city of San Diego, which had sued the company to consider the workers as employees under a California law that makes it harder to classify workers as contractors. Instacart was the first gig company in California to face a government push to change the classification of its workforce in the state. In Illinois, a group of Instacart workers formed a union, increasing their ability to press the classification question in that state.

“As a practical matter, there’s the question of immediate consequences rather than what happens a year or more from now in litigation,” said Martin Malin, professor and co-director of the Institute for Law and the Workplace at Chicago-Kent College of Law. “And the threatened strike may work. In addition to legal liability, Instacart has to worry about whether it can get workers and the effects of the terrible publicity.”

(Updated with new reporting throughout.)

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Andrew Wallender in Washington at awallender@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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