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Mhlnews 11230 Gig Economy

The Gig Economy Poses New Safety Threats and Liabilities

June 17, 2019
Employers who don’t address evolving hazards face OSHA and other joint liability.

Gig economy workers typically work away from the physical premises of the company using their services, but that doesn’t mean those companies don’t bear responsibility for these workers’ safety.

Gig economy workers can range from traditional independent contractors to freelancers and temporary staffing firm employees who work just a few hours a week. Some may use gig work to supplement the income they receive from a traditional job. Research shows that at least 29% rely on gig economy work as their primary source of income. Some estimates put their numbers as high as one-third of the total U.S. workforce.

Although the gig workforce has grown quickly in recent years throughout the country and in a wide range of businesses and can be difficult to define, its members share certain common characteristics. These workers are typically younger and less experienced, which makes them more likely to engage in unsafe practices. In addition, gig economy jobs often lack traditional means of workplace training and supervision.

Traditional labor groups dislike gig economy work and generally oppose the existence of independent contractors who because of antitrust laws cannot be organized. For years state legislatures and government regulators have sought to apply enforcement of employee laws and regulations to the gig environment.

In addition, as you might well expect, tort lawyers are finding new ways to hold gig companies liable for gig worker accidents and injuries.

“Safety training, culture, practices, supervision and enforcement must be adapted to meet the new economy,” declare attorneys with the law firm of Seyfarth Shaw. “Given this transformed environment, employers must address safety hazards proactively or face OSHA citations or other liability.”

Specific safety issues the attorneys cite include the fact that many companies in the gig economy operate in higher-risk industries. Gig businesses have transformed passenger transportation and freight delivery services, where workers utilize the public roads and highways. Transportation accidents in general comprise nearly half of all workplace fatalities, the attorneys note.

Many gig economy employers also rely on transient workforces that may not be experienced in the field or may be returning to the field after pursuing a different career. Absent proper new-hire and refresher safety training, these workers may lack the knowledge and skills necessary to perform their jobs adequately, Seyfarth Shaw say.

“Safety training may be necessary to ensure gig workers can do the job safely,” the lawyers point out. “Similarly, given their independent nature, these workers may need personal protective equipment (PPE) or other traditional workplace protection designed to reduce workplace risk.”

A Failure to Communicate

Gig workers also may not know who to contact to report safety concerns, and they may not choose to report concerns at all. Unlike a traditional workforce where workers are taught to be the eyes and ears for their co-workers, the gig worker may choose to not communicate safety concerns to the company, encouraging the continued existence of unaddressed hazards. “As a result, gig companies may need to develop new methods for reporting safety concerns and injuries,” the attorneys suggest.

Not only do the typically younger workers often have less work history and less experience with occupational safety hazards, young workers in some cases may have an unfounded sense of invincibility, which adds to their danger, the lawyers warn. “Absent an instilled safety culture, these workers may have a greater likelihood of sustaining an injury or illness.”

The liability is real. In the face of the ongoing war over who is an independent contractor and who is an employee, the U.S. Department of Labor (DOL) recently issued an opinion letter establishing that many workers in the gig economy can be considered contractors when it comes to federal wage and hour regulations. For example, DOL said the primary purpose of the unnamed business that had asked for the opinion letter is “to provide a referral system that connects service providers with consumers,” which sounds a lot like Uber and Lyft—classic exemplars of the gig economy.

When it comes to using temp staffing firms, their corporate customers definitely run a risk of greater safety scrutiny. Readers may recall our coverage of the joint employer issue, a regulatory concept that has risen and fallen in a number of contexts, including labor relations enforcement by the National Labor Relations Board and other federal agencies.

What you might not be aware of is that it has been settled law for a number of years now that joint employer status does attach when it comes to workplace safety. Staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers, including making sure that all training requirements are met. The OSHA website clearly explains employers’ responsibilities with regard to temporary workers and safety training.

In addition, keep in mind that the rise of the gig economy coincided with the rise of OSHA’s aggressive use of its General Duty Clause in response to workplace violence. The General Duty Clause establishes employer responsibility for maintaining a safe workplace, even in the absence of specific regulations regarding certain dangers.

“This is one of the most well-recognized and reported safety issues in the gig economy,” according to the Seyfarth Shaw attorneys. “Indeed, gig economy companies have focused on incident investigation and risk assessments to reduce workplace violence safety concerns.”

Dealing with truck owner-operators is an especially complicated challenge and involves a different legal structure than other gig workers and independent contractors operate under. Battles continue to be fought at federal and state levels over whether they are considered true independent contractors or employees. In many cases the issue boils down to how much control fleet management exerts over the driver. Supervising their training and operations too closely can trigger a successful misclassification case, but fleets are expected to require that the independent driver maintains mandated insurance and an appropriate safety rating.

Companies operating in the gig economy must understand the risks their organizations face and develop procedures to meet these concerns, the lawyers stress. But as is the case with truck owner-operators, the issues can be complex. “Gig companies should consult with counsel and safety professionals to learn how to address these hazards and mitigate risks and liabilities,” Seyfarth Shaw recommends.

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