NELP and Mon Valley Amicus Brief Lowman v. Unemployment Compensation Board of Review

Summary

We support the Appellee’s position that his work driving for Uber does not constitute self-employment and therefore should not have disqualified him from receiving unemployment compensation. We write separately not to repeat the arguments made by the Appellee but to explain why Uber drivers should be treated as any other employees for purposes of unemployment compensation eligibility. We also write to describe the social and policy importance of broad unemployment compensation coverage for most workers in Pennsylvania, including those hired by “gig” companies online.

Uber and many other so-called “online platform” or “gig” companies1 are no different from other companies that engage workers to labor in their businesses. Uber sets most of the material terms of its drivers’ employment, including pay rates. Just like traditional employers, Uber can terminate—otherwise known as “deactivate”—its drivers’ employment. It can also unilaterally change the conditions of their work—such as reducing their pay or available work—in ways that would constitute “good cause” for leaving the Uber driving business. Uber drivers’ similarities to traditional employees make clear that there is no logical reason to exclude them from eligibility for unemployment compensation, as they are not running an independent business.

Moreover, the wholesale exclusion of Uber drivers and other “gig” or
“online platform” workers from unemployment compensation where there is no statutory exclusion would have negative consequences for these workers and the entire Pennsylvania economy. Along with losing out on unemployment compensation’s obvious financial benefits—which kept millions of Americans out of poverty during the last recession—online platform workers would lose out on the system’s social benefits, such as training opportunities and work sharing information that keep them connected to the labor market. Moreover, these workers’ exclusion from unemployment compensation would mean a loss of economic stimulus, which can increase the length and severity of any future recession.

While a decision in the Appellee’s favor will not change Uber drivers’ or other online platform workers’ eligibility for unemployment compensation, this case is an important step in acknowledging online platform work for what it is—not self-employment, as Uber and other online platform companies insist—but employment for a company that dictates most of the material terms of the work. For these reasons, Uber drivers should be treated no differently than employees for purposes of unemployment compensation eligibility and coverage, and Uber should be treated no differently than other employers for purposes of unemployment compensation contributions.

[1] The U.S. Bureau of Labor Statistics (BLS) added four questions to the May 2017 Contingent Worker Supplement to measure “electronically mediated work,” which BLS defined as “short jobs or tasks that workers find through websites or mobile apps that both connect them with customers and arrange payment for the tasks,” which is the same basic definition of gig or online platform work that this brief uses. The BLS data showed that Black workers and Latino workers are overrepresented in in-person electronically mediated work, and that this type of work is more unstable than work overall (8.7 percent of in person electronically mediated workers report that they do not expect their job to last beyond a year, compared to 3.8 percent of workers overall). More than 72 percent of electronically mediated workers are doing the work as a main job. See Bureau of Labor Statistics, U.S. Dep’t of Labor, Electronically Mediated Work: New Questions in the Contingent Worker Supplement, Monthly Labor Rev., Sep 2018,
https://www.bls.gov/opub/mlr/2018/article/electronically-mediated-work-new-questions-in-the-contingent-worker-supplement.htm.