by Ashley Pileika and Elizabeth Fabbri
Many of the nearly 2.5 million women who lost their jobs over the past year due to COVID19 have turned to the gig economy to support their families. Gig workers may enjoy the freedom and flexibility of their positions, but the industry also raises unique wage and safety concerns for women.
Pay disparities persist in the gig economy.
Though narrower than the pay gap in “traditional” workplaces, a recent study has revealed women’s earnings in the gig economy were 10.6 lower than men. When the authors of the study investigated the cause of this discrepancy, they found some women appeared to make lower-paid work choices based upon a preconceived expectation for lower wages. The study revealed that women and men often had a different “reservation wage.” This means when asked to state the minimum amount they demanded to be paid in order to perform certain jobs, women responded with an amount that was 10 to 15% lower than the amount men demanded to perform the same work.
A similar study found that women in freelance work also earn less than their male counterparts; despite having comparable experience and quality work, some women were paid as little as half as men because they routinely bid and accepted less money for jobs. These studies highlight women in the gig economy must be aware that long-standing pay equity issues have crossed over into these industries and remain vigilant of practices that result in lost earnings.
Gig workers are susceptible to wage law violations.
The overarching federal legislation that employees rely on to set the minimum wage and the maximum hour requirement for hardworking Americans is known as the Federal Fair Labor Standards Act (FLSA). Since 2009, the federal minimum wage has remained at just $7.25 per hour. Many states also have minimum wage laws. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage.
In addition to establishing the minimum wage, the FLSA also regulates overtime pay. Federal law (and often state law) mandates employers to pay their employees one and one-half times the regular rate of pay for any hours worked in excess of 40 hours each workweek. Some employers avoid paying overtime by requiring employees to work off the clock—often before a shift begins, after it ends, or during unpaid breaks. Employers may also not pay for certain work such as safety meetings, traveling to work sites, and other preparatory work. This is usually unlawful.
Gig workers are also uniquely susceptible to reimbursement violations. Under the FLSA and many state laws, if an employee incurs expenses on the employer’s behalf for the convenience of the employer, the employee is entitled to reimbursement to the extent their earnings would otherwise fall below the federal minimum wage. Many companies use a flawed method to determine reimbursement rates. This often results in an unreasonably low approximation of incurred expenses, causing driver’s wages to fall below the federal minimum wage during some or all workweeks. Delivery and rideshare drivers are especially susceptible to this unlawful pay scheme.
Ride share companies have reported alarming numbers of sexual assault.
In 2019, Uber released a comprehensive safety report that disclosed there had been 6,000 incidences of sexual assault on its app in the previous two years. Both Uber and Lyft now face lawsuits alleging the companies have not done enough to prevent assaults and have acted to silence victims and hinder law enforcement investigations.
In March 2021, Uber and Left announced plans to share data on driver deactivations related to assaults with one another. The new database follows years of pleas from victims’ advocates to better protect passengers from violence and sexual assault by doing so. The companies previously did not share information on drivers who were removed because of sexual offenses, making it possible for some offenders to jump from one app to another.
But external investigations indicate ridesharing companies still have a long road ahead to ensure the safety of drivers and passengers. In December 2020, the California Public Utilities Commission threatened to fine Uber $59 million and suspend its license to operate if the company did not answer its outstanding questions concerning the prevalence of sexual assault. A 2019 Washington Post investigation of Uber’s Special Investigations Unit found that investigators were coached to put the company’s interests first, ahead of passenger safety. A similar investigation found victims of sexual harassment on Lyft felt their concerns went unheard as the company neglected to seriously probe their complaints.
April is Sexual Assault Awareness Month (“SAAM”)—a time to inform, educate, and raise awareness about sexual assault. We must continue to pave the way for safer, more equitable work conditions for women in the gig economy by raising public awareness and holding employers responsible for their wrongdoing and promised reform.
Ashley Pileika is an attorney with Forester Haynie and can be reached at firstname.lastname@example.org and Elizabeth Fabbri is a law clerk at Forester Haynie.