Upcoming negotiations for a UN Binding Treaty on Business and Human Rights provide a critical opportunity for governments and business to demonstrate their commitment to responsible corporate conduct.
In 2015, Waheed Etimad immigrated with his wife and their seven children to the United States from Afghanistan on the special immigrant visa he received after translating for the U.S. Army. Etimad began taking courses at Diablo Valley College, studying to become a computer engineer while driving full time for Uber at night. People who knew Etimad called him a hardworking and devoted family man, an “amazing father, husband, and friend.”
Etimad was killed on February 3, 2019 while on the job for Uber in San Francisco. His van was struck head-on by another car driving the wrong way on Highway 101. While the other driver was also killed, Etimad’s passengers survived the crash.
Since Etimad worked for Uber, a company that categorizes workers as independent contractors rather than employees, his family is ineligible for workers’ compensation death benefits.
Etimad was the sole provider for his wife and seven children, who range in age from two to 16. Had he been classified as an employee, workers’ compensation would have paid for his funeral expenses and provided financial support to his family.
Instead, a friend created a GoFundMe campaign and the Muslim Community Center of the East Bay began organizing legal, financial and emotional support for the family. This outpouring of support is heartwarming — an important way for communities to express grief and solidarity — but workers and their families should not have to rely on public donations if they are hurt or killed on the job. The workers’ compensation system was created for that purpose.
With the proliferation of rideshare services and other on-demand delivery platforms, more workers are driving for a living. Transportation incidents are consistently the most frequent cause of fatal occupational injuries, accounting for 2,077 deaths on the job in 2017 – or 40 percent of all occupational fatalities for the whole year. Given this high risk, it’s particularly egregious for Uber, Lyft, and other “gig economy” companies to misclassify workers as independent contractors and deny them the basic protections of workers’ compensation as well as OSHA coverage.
A 2018 ruling from California’s Supreme Court offered a legal starting point for providing gig workers with those rights. The top court’s landmark decision in Dynamex Operations West v. Superior Court requires employers to pass a simple A-B-C test before classifying workers as independent contractors. All three of the following criteria have to be met in order for a worker to be classified as an independent contractor:
- They are able to control and direct their own work
- They are engaged in work that is different than the usual work of the hiring company
- They are part of an independently established trade or occupation for the work they are providing the hiring company
Independent plumbers are one example of an independent contractor that meets this criteria. The plumber can decide when and how they work, they do work that is different from that of the hiring company, and they are part of an independent trade.
An Uber driver, by contrast, would likely not meet this criteria as their work is controlled by Uber, they are engaging in the primary work of the company (driving), and they do not have independent driving companies.
Members of California’s state legislature now have the opportunity to expand on the Supreme Court’s ruling. State Assemblymember Lorena Gonzalez introduced AB 5 this year to codify the Dynamex decision into law. AB 5 has the potential to stop the unraveling of labor protections by gig economy employers.
The Dynamex decision focused on workers that pass the A-B-C test being covered by minimum wage and overtime laws, but AB 5 would extend these rights to include unemployment insurance, workers’ compensation, health insurance, sick days, and paid family leave. With the successful passage of AB 5, professional drivers and California workers across industries could reclaim the rights and benefits they deserve.
Update: California’s state legislature passed AB 5 and Governor Gavin Newsom has pledged his support. Uber maintains the A-B-C- test won’t apply to its drivers, arguing that “drivers’ work is outside the usual course of Uber’s business, which is serving as a technology platform for several different types of digital marketplaces.”
This piece was originally written for Worksafe’s 2019 Dying at Work Report.
Yasin Khan is an intersectional public health professional. She has worked with tea farmers and tailors in India, women firefighters and nurses in the U.S. and currently works at UC Berkeley’s Labor Occupational Health Program. The mission of UC Berkeley LOHP is to promote safe, healthy, and just workplaces and build the capacity of workers and worker organizations to take action for improved working conditions.