San Diego Law Review

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Since the early days of the Coronavirus pandemic, unemployment rates leapt to the highest they have been since 1975. Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020, a $2 trillion relief package, offering augmented unemployment relief not only to employees but also to the self-employed, including gig workers. The Families First Coronavirus Response Act (FFCRA) was passed to provide sick leave in the form of tax credits that also extended to the self-employed. Beyond the governmental responses, platform companies offered new limited relief to their workers in the form of sick leave, even as they continued to classify them as freelancers. Mass layoffs alongside mass hiring present immense legal challenges even without a health pandemic. The COVID-19 crisis adds the challenges of health and safety, social distancing, risk management, and telecommuting. This Article, written for a symposium on COVID-19 and the Law, examines employment law and employee classification in relation to the contemporary realities of the labor market during the coronavirus pandemic. As business models and market structures are constantly changing and shifting, one thing remains the same: how we classify the work relationship carries enormous weight in determining the rights and duties of market actors. This Article presents the ways the COVID-19 pandemic has exposed the vulnerabilities of gig workers and the irrationalities of rigid classification tests that have always been the Achilles heel of the field of employment and labor law. The Article explores pandemic-related economic benefits that have been extended to freelancers and considers the ways the pandemic reveals the nature—and future—of the gig economy. Part II explains the federal and state efforts to expand unemployment benefits to freelancers. It describes how the CARES and FFCRA Acts have expanded the emergency unemployment benefits, paid sick leave, and family and medical leave available to freelancers, and yet the funding and the operational details of these programs are still contested. Part III describes the continued service of gig workers during the pandemic, especially in the delivery sector, and how classification as freelancers has left many without medical leave rights, health and safety rights, and other protections. Drawing on my recent research, Part IV argues that the fight over employee classification is a red herring, as it misses the point about what public protections ought to be provided to all workers in the labor market. I propose that certain employment and labor protections should be extended to non-employees whether they work on the digital platform or offline in more traditional settings. I further argue that our social welfare system should not be so heavily linked to the labor market.

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