THE GIG ECONOMY AND OCCUPATIONAL SAFETY AND..., 23-NOV Haw. B.J.

23-NOV Haw. B.J. 4

HawaiiBarJournal
November
,
2019

Article
Scott Prangea1

Copyright © 2019 by HSBA; Scott Prange

THE GIG ECONOMY AND OCCUPATIONAL SAFETY AND HEALTH

Nationwide, the gig economy--the free market system in which companies “fissure” discrete jobs into flexible “gigs” performed
by contractors temporarily--is transforming the workforce as it continues to expand.1 But with the gig economy mostly
unregulated and gig workers not treated as “employees” entitled to statutory safeguards or benefits, a chorus of voices has been
calling for greater protection of gig workers especially related to occupational safety and health.

In May 2017, Uber, considered the gig economy's chief architect, responded to head-off greater regulation of the world's largest
ride-hailing service. In the United Kingdom and the United States, Uber announced it had partnered with insurance behemoths
OneBeacon and Aon for a “first-of-its-kind” workers' compensation-like program, enabling gig drivers injured on the job to
recoup wages and medical expenses.2 Uber said, “drivers should have a low-cost option for protecting themselves and their
families from rare and unforeseen accidents that prevent them from working.”3

Several months prior, all eyes were fixated on the gig economy and worker safety. Across the country, two Uber drivers were
brutally murdered leaving behind families who relied on their support. In California, 27-year old Andre Jamal Bayyan was
pronounced dead on the scene after being found in his vehicle, shot in the head, while either in route to pick up or drop off a
passenger.4 Bayyan performed gigs to support his family and was the primary provider and care giver for a young son. And
in Michigan, 51-year old Modou Diagne was found dead in his vehicle after it crashed into a tree; Diagne had crashed while
fleeing a passenger who had ambushed and gunned him down.5 A recent immigrant from West Africa, Diagne was juggling
multiple gigs to support his family including his pregnant wife and several children.

Shocking the national conscience, these high-profile incidents--and many others like them6--culminated in a campaign now
being waged within the federal and state governments and in the courts to regulate the gig economy in order to extend
occupational safety and health protections.7

Analyzing the gig economy with a view on occupational protections, along with developing and effecting new statutory or non-
statutory approaches to cure any deficiencies, is therefore essential.

The Gig Economy

Today, the gig economy is robust, although its exact size is unknown.8 In the Fissured Workplace: Why Work Became So
Hard and What Can Be Done to Improve It, the former Administrator of the United States Department of Labor Wage and
Hour Division, David Weil, argues that the gig economy has flourished because companies desire to maximize efficiency

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by “fissuring” or splitting off functions to streamline and drive down costs.9 The “fissuring” of the traditional employment
relationship naturally followed giving rise to gig work completed by contractors on a temporary basis, a trend that will likely
accelerate.

Today, companies across industries and of all sizes are shedding their roles as direct employers by fragmenting existing jobs into
smaller tasks for bidding that specialized companies, staffing agencies, and individuals all fiercely compete for.10 Companies
are able to focus on their core operations and bolster efficiency by doing so. They also effectively evade workplace laws to
save money by not paying minimum wage or overtime, contributing to statutory benefit regimes, complying with occupational
safety and health standards, or paying into workers' compensation insurance.

This shifts the burden onto smaller companies with fewer resources or onto the workers themselves. For some, this may seem like
a fair trade-off.11 Considered the father of corporate management, Peter Drucker once suggested that the goal of any company is
for a worker to see themselves “as a ‘manager’ and accept ... the full burden of what is basically managerial responsibility.”12 *6
The gig economy has allowed workers to do just that by engaging a patchwork of gigs over which they have greater control
and for which they have the full burden of managerial responsibility.

Gig workers may enjoy greater self-sufficiency. But they have no guarantee of a stable job and are unable to take advantage
of a standard wage or statutory benefits.13 This includes the protections that occupational health and safety standards afford
like a safe workplace and workers' compensation that provides wage replacement, compensation for medical costs, coverage
for permanent disability, and even survivor benefits when injured on the job.

The U.S. Bureau of Labor Statistics has not always monitored the gig economy and had last counted comparable “contingent
working arrangements” in its “Current Population Survey” in 2005.14 In May 2017, this changed. The Bureau began tracking
“contingent working arrangements” again using descriptors that cover workers provided by contract firms and workers with
an implicit or explicit contract. Still, when the Bureau asks companies and workers about “contingent work arrangements,”
survey respondents may not view gig work or other nontraditional work arrangements within these descriptors, resulting in
underestimated participation.15

Alternatively, the Freelancers Union, a non-profit organization representing the interests of gig workers conducted a
comprehensive study of the nation's workforce. They sought to identify the total number of “contingent workers” using
broader descriptors inclusive of a broader array of nontraditional working arrangements. They concluded that almost 54 million
Americans or roughly one in three of the total workforce is a contingent worker--either a gig worker, an independent contractor,
or a part-time worker.16 In Hawai'i, this includes nearly 100,000 workers.17

The gig economy is likely to grow even bigger as the percentage of the workforce comprised of millennials grows. Currently,
42 percent of gig workers are millennials.18

Gig Work and Occupational Safety and Health

Risks of Gig Work

The gig economy encompasses many types of nontraditional working arrangements across industries with risky working
conditions. Moreover, gig workers are generally less prepared to navigate these risks for numerous reasons:

• Nature of Job

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Many gig companies operate in high-risk industries such as construction, passenger transport, and freight transport that are
fraught with danger and lead in raw numbers of occupational injury and illness.19 Additionally, most gig jobs in these industries
are temporary and are performed in separation from and often in competition with others, denying workers social interactions
that would otherwise facilitate learning amongst co-workers, sharing of safety best practices, and discussion of work concerns.

• Education and Experience

Many companies now rely on temporary gig workers who are transient and often younger and therefore are less prepared for
the specific job by way of education and experience. In 1989, for example, the Occupational Safety and Health Administration
(“OSHA”) conducted a national survey in the wake of a petrochemical plant explosion of 600 direct hires and 600 contract
employees.20 OSHA found that compared to the direct hires contract employees were less educated and had less general and
specific job-related working experience.

• Training

Likewise, gig workers are less likely to be given or have completed generalized or site-specific job training or occupational
health and safety training.21 OSHA's survey of petrochemical employees supports this notion. Subsequently, gig workers are
less prepared while working to deal with job hazards, mitigate risk, or bring job hazards to attention because they are not familiar
with reporting protocol.

*7 • Psychological Detriments

Gig workers often report psychological detriments related to job insecurity and a fear of losing their job. This breeds a working
environment built on distrust where training requests are not completed, working hazards go unreported, and “presenteeism”
abounds where gig workers fail to report occupational injuries and illnesses while coming to work injured or sick.22 A well-
known international study demonstrated that compared to permanent workers, a large sample of gig workers performing
temporary jobs reported much higher psychological distress related to job insecurity and somatic complaints.23

For these reasons, worldwide, compared to permanent workers in similar jobs, gig workers are up to three times as likely to
suffer occupational injury and illness and when they do with greater severity.

In 2015, the Finnish Institute of Occupational Health conducted a comprehensive meta-analysis of 27 international studies
conducted across a number of countries of gig workers and various health outcomes.24 The meta-analysis clearly demonstrated
that gig workers have a significantly higher risk of occupational morbidity. In 2009, for example, one such study conducted
of Italy's nascent gig workers found that as compared to permanent workers with similar jobs, temporary workers were three
times as likely to suffer work-related injury or illness.25

The United States lacks a national surveillance system to collect exhaustive data on occupational safety and health. Rather, the
U.S. Bureau of Labor Statistics collates data either through an annual survey that relies on company and worker self-reports
or state workers' compensations systems who report; both measures are highly unreliable. As a result, the Bureau's “Current
Population Survey” has failed to track the collective experience of gig workers regarding occupational health due at least in part
to a lack of adequate descriptors for “contingent work” that fail to capture the full extent of nontraditional working arrangements
and related occupational *9 injury and illness.

In 2019, the Bureau's “Census of Fatal Occupational Injuries” published for the first time preliminary data on “contingent
workers,” albeit only for fatalities. Nationwide, “contingent workers” suffered 12 percent of all fatal occupational injuries and

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illnesses or 1,275 deaths; in Hawai'i, there were 3.26 Moreover, the Bureau revealed that the occupational groups with the
highest number of “contingent worker” fatalities were construction, passenger transport, and freight transport.27

Occupational Protections for Gig Workers

OSHA

In the United States, the Occupational Safety and Health Act of 1970 (“OSHA”) seeks to assure safe and healthful working
conditions for workers by authorizing the development and enforcement of occupational standards.28 Moreover, 22 states
including Hawai'i administer approved occupational plans that are “at least as effective” in advancing safety and health
standards.29 OSHA regulates many essential aspects of occupational standards including the structural soundness of work
facilities, the design and functionality of work tools, and workplace contamination.

OSHA only applies to “employment” between an “employer” and an “employee”-- each being circularly defined.30 Each
“employer” must fulfill a general duty of care to “furnish to each of [its] employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its]
employees.”31 In addition, “employers” must meet specific occupational standards that have been promulgated. As a result,
OSHA does not extend to the majority of gig workers as most are not classified as “employees” but “independent contractors,”
even though they are most prone to suffer occupational injuries and illnesses.

However, OSHA may still apply to gig workers in several limited situations:

• Multi-Employer Worksite

Under OSHA, on a multi-employer worksite, more than one employer may have a general duty of care to others who may
not be their “employees.”32 An employer may therefore have a general duty of care to gig workers who are not classified as
“employees” but “independent contractors” if they are working and injured on site.

OSHA adopted a two-step process to determine which employer is responsible when violations occur.33 The first step is to
determine the role each employer played: controlling employers have authority over the worksite, creating employers introduce
a hazard into the workplace, exposing employers place workers in contact with the hazard, and correcting employers resolve
the hazard. The second step, based on the role each employer plays, is to determine if the employer's actions met obligations
under applicable occupational safety and health standards or if not whether the employer should be cited.

• Worker Misclassification

OSHA applies to gig workers if they should have been classified as “employees” but were misclassified as “independent
contractors.” This dichotomy yields a restrictive binary for labeling workers which is all or none--either workers are employees
with all the legal protections that imbues, or “independent contractors” with no legal protection.34

In Loomis Cabinet Co. v. OSHRC, the Ninth Circuit applied OSHA and rejected the common law control test in favor of
the “economic realities” test.35 It considers the putative employer's right to control the manner and means by which work is
accomplished. The Ninth Circuit also adopted the so-called Darden factors to frame the test, examining:36

1) Whether the parties' relationship is ongoing or of limited duration;

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2) Which party has discretion to control the matter and means by which work is accomplished;

3) If any party has the right to assign additional work;

4) Whether the worker is engaged in *10 a distinct occupation;

5) Whether the work is usually performed by a specialist working independently;

6) Whether the worker has the required skills or qualifications to perform the work;

7) Where the work will be performed;

8) Which party provides the instrumentalities and tools required for the work;

9) How the parties pay each other including delegation of any benefits; and

10) How the parties treat each other for tax purposes.

The common law test is a non-exhaustive list of factors and contains “no shorthand formula or magic phrase that can be applied
to find the answer ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.”37

• Temporary Workers

In April 2013, the U.S. Occupational Safety and Health Administration launched the Temporary Worker Initiative (“TWI”)
aimed at bolstering employers' responsibilities regarding staffed workers who are supplied temporarily.38 Now, employers share
“joint responsibility” with staffing agencies for ensuring occupational safety and health. Both the employer and staffing agency
must work together to comply with occupational standards.39 But the employer and staffing agency are each obliged to assess
workplace hazards and ensure that workers are equipped and capable to perform the job.

Generally, the employer is better positioned to be and is primarily responsible for complying with workplace-specific
occupational standards, curing hazards, and providing required personal protective equipment. The staffing agency is better
positioned to be and is primarily responsible for ensuring the worker is eligible to perform the job by conducting medical
surveillance and screens.

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However, the employer and staffing agency may also enter into a written contract that delegates specific responsibilities,
although such an allocation does not discharge each party's obligations. For example, the employer and staffing agency may
agree that the employer will provide specific site and job safety training and the staffing agency will provide generalized safety
training.

Workers' Compensation

Like OSHA, Hawaii's Workers' Compensation Law only applies to “employment” between an “employer” and “employee,”40
with each defined circularly. Workers' compensation generally provides workers lost wages, reimbursement for medical
expenses, permanent disability, and survivor benefits for those who relied on their financial support when a workplace injury
or illness results. As such, the state's workers' compensation statute does not cover the majority of gig workers as most are
classified not as “employees” but “independent contractors.”

Still, gig workers may be eligible for workers' compensation benefits if they should have been classified as “employees” but
were misclassified as “independent contractors”:

• Worker Misclassification

In Locations, Inc. v. Hawai'i Department of Labor and Industrial Relations, Hawaii's Supreme Court adopted a modified
version of the common law “control test” called the “relative nature of work test” used to determine whether “employment”
exists for purposes of workers' compensation.41 The Court said the threshold question is whether “the person in whose behalf
the work is done has the power, express or implied, to dictate *11 the means and methods by which the work is to be
accomplished.”42 An “independent contractor” is “[o]ne who contracts with another to do a specific piece of work for him, and
who furnishes and has the absolute control of his assistants, and who executes the work entirely in accord with his own ideas, or
with a plan previously given him by the person for whom the work is done, without being subject to the latter's orders in respect
to the details of the work, with absolute control thereof, is not a servant of his employer, but is an independent contractor.”

In Hawai'i, the employer must demonstrate a high degree of control applying the “relative nature of the work test” that “involves
a balancing of factors regarding the general relationships which the employee has with regard to the work performed for each
of [their] employers.”43 Several factors are considered: “whether the work done is an integral part of the employer's regular
business; and whether the worker in relation to the employer's business, is in a business or profession of his own.”

Safeguarding Gig Workers: New Approaches

The gig economy as it intersects with existing federal and state occupational safety and health laws presents a new problem. The
existing dual-classification system of nomenclature used to qualify coverage--that categorizes workers as either “employees”
who are covered or independent contractors who are not covered--fails to govern many nontraditional working relationships.44

Today's gig workers “do not seem to fit into either of the binary worker categories--though far from traditional employees, they
also bear little resemblance to independent, small-business-operating contractors.”45 Companies may enjoy greater bargaining
power to negotiate many of the terms of the gig and the scope of work. But gig workers are not *12 totally dependent and often
set many essential terms of the gig and the scope of the work such as which platforms they work for, the working schedule,
and which customers they interface with.

For both the company and worker this creates significant and unnecessary uncertainty as to whether coverage applies, and who
will shoulder responsibility for occupational safety and health and compensating the worker for workplace injury or illness. To

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safeguard gig workers and create certainty with an eye on fostering occupational safety and health, several new statutory and
non-statutory approaches may be available and are explored below:

• Legal Parity

The federal government and state governments could amend applicable occupational safety and health statutes including
workers' compensation to provide legal parity for all types of workers regardless of classification as an “employee” or
“independent contractor.” This would ensure that the universe of occupational protections is not dependent on an antiquated
dual-classification nomenclature.

Some states already have moved towards legal parity by amending state occupational safety and health laws using varied
approaches, though the efficacy of such changes remains to be seen. In California, for example, the State Legislature passed
Assembly Bill 5 that seeks to ensure the state's employment laws provide legal parity for all types of workers by establishing a
presumption that workers are “employees” eligible for coverage unless several strict criterion clearly demonstrate otherwise:

A person providing labor or services for remuneration shall be considered an employee rather than an independent
contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring
entity in connection with the performance of the work, the person performs work that *14 is outside the usual
course of the hiring entity's business, and the person is customarily engaged in an independently established trade,
occupation or business.46

This may compromise the nature of the gig economy. Companies may neglect focus on core operations and bolstering efficiency
as they divert resources to maintain compliance. And many companies may seek greater control over gig workers to ensure
compliance providing less flexibility, self-sufficiency, and varied job opportunities.

Alternatively, the federal government and state governments may be able to achieve a similar result by working within the
existing nomenclature to add a new category which disregards a technical exploration of “employer” control to differentiate and
capture more workers for coverage. A new category might focus on economic dependence instead and could be called either
“independent” or “dependent” worker.47

However, a new category might be untenable. Just as the existing nomenclature is too rigid to accommodate new nontraditional
working relationships, a new category might be too rigid to capture many types of working arrangements which either currently
exist or might in the future.

• Dual-Employment

The National Council for Occupational Safety and Health (“COSH”) is a federation of unions, technical and health professionals,
and other interests. COSH advocates that OSHA be enforced in the gig economy under a stricter “dual employer” theory.48
Essentially, COSH would like the U.S. Occupational Safety and Health Administration to extend TWI but prescribe the employer
and staffing agency specific dual responsibilities. This includes delegating which party must comply with occupational safety
and health standards, provide training, make available personal protective equipment, and pay into workers' compensation. This
would make both the company and staffing agency jointly responsible for occupational safety and health compliance but with
clear prescriptiveness.

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If OSHA is applied under a “dual employer” theory, only gig workers who are supplied to a company by a staffing agency and
temporarily work on site will be protected. This fails to touch the majority of gig workers who do not engage a staffing agency
and do not work on site but remotely.

• State-Pooled Funds

In February 2019, U.S. Senator Mark Warner (D-VA) introduced the “Portable Benefits for Independent Workers Pilot Program
Act.” The Act will provide $20 million in federal grant funding to states as the “laboratories of democracy” to experiment
with models that allow gig workers to port benefits.49 Senator Warner remarked: “As more and more Americans engage in
part-time, contract or other alternative work arrangements, it's increasingly important that we provide them with an ability to
access more flexible, portable benefits that they can carry with them to multiple jobs across a day, a year, and even a career.
These incentive grants will accelerate experimentation at the state and local levels to better support a more independent 21st
century workforce.”50

The U.S. Department of Labor would grant federal funds to eligible states to “support broad innovation and experimentation
with respect to portable benefits” that “are provided to eligible workers for eligible work in a manner that allows the worker to
maintain benefits upon changing jobs.” States will be able to utilize funding to develop state-pooled regimes which permit gig
workers to port benefits as they work across platforms including workers' compensation.

Several states have already developed comparable test proposals even without funding. Foremost, Washington is considering
a bill that would require gig companies to contribute money into a state-pooled system to ply gig workers with benefits they
can transfer including workers' compensation.51 Companies' contributions could be added to consumers' bills and would be the
lesser of 2.5 percent of the total fee collected from the transaction or six dollars for every hour that the worker provided services.

These federal and state bills are ambitious, but for the majority of gig workers a state-pooled system does little to effectively
advance occupational protections. OHSA and state equivalents still would not apply to the majority of gig workers who are
not classified as “employees” but “independent contractors” and do not work on site. And a state-pooled system would not
provide gig workers portable benefits for the same reason. Participants are only eligible to transfer benefits they earned as an
“employee.” The reality is that most gig workers are “independent contractors” and not eligible for benefits.

A notable state proposal seeking to resolve some of these problems has been advanced in New York. Originally circulated by
Handy, a gig company providing home services, it aims to provide gig workers a state-pooled portable health savings account
regardless if classified as an “employee.”52 Gig workers could use the health savings account to pay for work or non-work related
injuries and illnesses. Companies could require gig workers to acknowledge their classification as “independent contractors” in
exchange for receiving an additional 2.5 percent of each consumer transaction fee deposited into the state pool.

New York already maintains a state-pooled system for gig drivers that provides portable workers' compensation-like benefits
upon a work-related injury or illness.53 Companies tack on a 2.5 percent surcharge onto consumers' fares that are forwarded
to the state and pooled for gig drivers.

These types of state-pooled plans appear to be a viable alternative to provide occupational protection for gig workers and address
many concerns. But state-pooled *15 plans relying on company or consumer contributions may not be sufficiently funded to
pay for gig workers' lost wages, costs of medical care, permanent and temporary disability, or survivor benefits. An effective
state-pooled plan might also provide state funding to make up the difference between company and consumer contributions and
gig workers' actual costs to maximize protection.

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• Company-Pooled Funds

Companies may also voluntarily provide gig workers access to either a company-pooled fund or use their pooled purchasing
power to provide an independent insurance policy that provides benefits for work-related injury or illness.54 The federal
government or state governments could mandate or provide companies tax breaks as incentive to do so.

As noted above, Uber already has. Uber partnered with OneBeacon and Aon for its “first-of-its-kind” workers' compensation-
like program for gig drivers. Available across most of the United States, Uber adds a surcharge on consumers of 5 cents per
mile to offset some of the drivers' cost of coverage, allowing drivers to volunteer for enrollment at a cost of 3.75 cents per mile.

Taking a different approach, Care.com, a gig company providing nursing and nanny care, created a company-pooled fund based
on a peer-to-peer platform that allows customers who hire caregivers to contribute to their benefits.55 The fund, called Care.Com
Benefits, allows consumers to pay-in to a pool of funds for caregivers by contributing a percentage of the transaction which
any caregiver may access to pay for work or non-work related injury or illness.

Companies should be encouraged to test novel solutions. But most company-pooled funds now proposed fail to optimize
occupational protections for the majority of gig workers. None extend OSHA protections to the workplace to all workers
regardless of classification or to those working remotely. As companies privately administer the funds, a self-interested board
of company and insurance representatives sits in a position to approve gig worker claims; state workers' compensation boards
typically are comprised of government, company, and labor representatives who also serve as advocates. As the company
administers the fund, gig workers who typically work across multiple platforms may not be able to port benefits. And, company-
pooled funds that rely on consumer contributions likely are not sufficiently capitalized to cover the full costs of an occupational
injury or illness including *22 lost wages, medical expenses, permanent or temporary disability, and survivor benefits.

Conclusion

As the gig economy continues to grow, the occupational safety and health of gig workers should be scrutinized. Federal and
state governments and courts-- working with companies, unions, advocacy groups, and other aligned interests-- must closely
assess whether gig arrangements optimize occupational safety and health and seek statutory and non-statutory approaches for
greater protection of these vulnerable workers as deficiencies are identified.

Footnotes
a1 Scott Prange is an attorney at a national labor and employment firm representing employers. The opinions expressed are those of
the author and do not necessarily reflect the views of his firm or the firm's clients.

1 Scott Prange, Managing the Workforce in the Gig Economy, haw. B.J. (2016), 20(6), 4-15; see, John Howard, Nonstandard Work
Arrangements and Worker Health and Safety, am. j. ind. med. (2016), 60(1), 1-10 (“Standard work arrangements now exist alongside
several nonstandard arrangements: agency work, contract work, and gig work. While standard work arrangements are still the most
prevalent types, the rise of nonstandard work arrangements, especially temporary agency, contract, and “gig” arrangements, and the
potential effects of these new arrangements on worker health and safety have captured the attention of government, business, labor,
and academia.”).

2 See, Dara Kerr, Uber: Pay More for Rides to Cover Drivers' Insurance, cnet (2017), https://www.cnet.com/news/uber-raises-rates-
for-rides-to-cover-drivers-injury-insurance/.

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3 Kate Parker, Uber Utilizes Technology to Enhance Safety for Drivers, uber (2017), https://www.uber.com/newsroom/driver-share-
my-trip-2/.

4 David Curran, Two Uber Drivers Shot and Killed in Separate Incidents, san francisco gate (2016), https://www.sfgate.com/news/
article/Two-Uber-drivers-shot-and-killed-in-sepa-rate-6963326.php; Dennis Romero, Uber Driver Gunned Down in Inglewood, la
weekly (2016), https://www.sfgate.com/news/article/Two-Uber-drivers-shot-and-killed-in-separate-6963326.php.

5 James David Dickson, Detroit Man Accused of Killing Uber Driver Denied Bond, the detroit news (2016), https://
www.detroitnews.com/story/news/local/detroit-city/2016/04/11/detroit-man-accused-killing-uber-driver-deniedbond/82891286/.

6 See, Scott Croteau, Teen Killed by Dump Truck While Trying Hand at Door Dash, boston globe
(2017), https://www.bostonglobe.com/metro/2017/11/04/teen-killed-dump-truck-dorchester-friday-was-trying-his-hand-modeling-
photography/CxX42v0S6eh9xULSTF8X2K/story.html (19 year old, Antawani Wright Davis, died while delivering food for Door
Dash on his bicycle after a dump truck backed over him.); see also, Ido Mojadad, Father of Seven Killed by 21-Year-Old Driver
on Highway 101, san francisco weekly (2019), http://www.sfweekly.com/news/father-of-seven-killed-by-21-year-old-driver-on-
highway-101/ (A 40-year old Uber driver, Waheed Etimad, died while transporting passengers after a head-on collision with a likely
drunk driver, who had entered the freeway headed in the wrong direction. A recent immigrant from Afghanistan who assisted United
States troops as a translator, Etimad was doing gigs to support his wife and seven children).

7 Prange, supra note 1; see, Alexandra Petri, The Sharing Economy Gets Its Day Before a U.S. House Subcommittee, skift
(2015), https://skift.com/2015/09/30/the-sharing-economy-gets-its-day-before-a-u-s-house-sub-committee/ (On September 29, 2015,
the U.S. House Subcommittee on Commerce, Manufacturing, and Trade held a hearing to look at the influence the gig
economy and its emerging technologies have on consumers, job creation, and policy.); see also, United States Occupational
Health and Safety Administration Memorandum on Temporary Worker Initiative (2014), https://www.osha.gov/temp_workers/
Policy_Background_on_the_Temporary_Worker_Initiative.html (On April 29, 2013, OSHA adopted a Temporary Worker Initiative
to prevent work-related injuries and illnesses among temporary workers; see also Lydia DePillis, Seattle Might Try Something
Crazy to Let Uber Drivers Unionize, washington post (2015):// www.washingtonpost.com/news/wonk/wp/2015/08/31/seattle-might-
try-something-crazy-to-let-uber-drivers-unionize/ (The city of Seattle has passed legislation which would allow-pseudo collective
bargaining for gig workers, allowing “for-hire vehicle drivers” to be represented by an “exclusive driver representative.”).

8 Sara Donovan et al., What Does the Gig Economy Mean for Workers?, congressional research service (2016), http://
digital.library.unt.edu/ark:/67531/metadc824431/.

9 Prange, supra note 1; David Weil, the fissured workplace: why work became so bad for so many and what can be done to improve
it (Harvard University Press 2014); See, Carl Frey & Michael Osbourne, the future of employment: how susceptible are jobs
to computerisation (University of Oxford 2013), http://www.oxfordmartin.ox.ac.uk/publications/view/1314 (Researchers at Oxford
University's Martin Programme on Technology and Employment predict that companies will fissure nearly 30% of all U.S jobs in
the next 20 years).

10 See, Mary Gray, Your Job Is About To Get “Taskified”, los angeles times (2016), http://www.latimes.com/opinion/op-ed/la-oe-0110-
digital-turk-work-20160110-story.html.

11 See, Nick Hanauer & David Rolf, Shared Security, Shared Growth, democracy journal (2015), http://democracyjournal.org/
magazine/37/shared-security-shared-growth/.

12 Prange, supra, note 1; Peter Drucker, management: tricks, responsibilities, practices 284 (Transaction Publishers 2007).

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13 See, paychecks, paydays, and the online platform economy (JP Morgan Chase Institute 2016), https://www.jpmorganchase.com/
corporate/institute/report-paychecks-paydays-and-the-on-line-platform-economy.htm; See, Toni Alterman et al., Job Insecurity,
Work-Family Imbalance, and Hostile Work Environment, am. j. ind. med. (2013), 56, at 647-659; see also, Benach et. al, What
Should We Know About Precarious Employment and Health in 2025? Framing the Agenda for the Next Decade of Research, intl.
j. epidemiol (2016), 45(1), 232-238.

14 See, Laura Gardiner, Does the Gig Economy Revolutionize the World of Work, or Is It a Storm in a Teacup?, the economist (2015),
http://www.economist.com/blogs/freeex-change/2015/10/gig-economy; see also, Joseph DiStefano, The Gig Economy: Flexible,
Benefitless Jobs Are Changing Work, but How Much?, philadelphia inquier (2016); see, innovation and the contingent workforce
(United States Department of Labor 2016), http://blog.dol.gov/2016/01/25/innovation-and-the-contingent-workforce/; see also, Ilyse
Schuman, DOL to Revive Survey to Assess Member of “Gig” Economy, mondaq business reporter (2016); labor force statistics
from the current population survey: labor characteristics (United States Department of Labor Bureau of Statistics 2018), https://
www.bls.gov/cps/lfcharacteristics.htm.

15 Arne Kalleberg, Nonstandard Employment Relationships: Part-Time, Temporary, and Contract Work, annual review of sociology
(2000), 26, 341-65 (“Nonstandard employment relations-such as part-time work, temporary help agency and contract company
employment, short-term and contingent work, and independent contracting-have become increasingly prominent ways of organizing
work in recent years. Our understanding of these nonstandard work arrangements has been hampered by inconsistent definitions,
often inadequate measures, and the paucity of comparative research.”).

16 Prange, supra, note 1; see, freelancing in america: 2015 (The Freelancers Union 2015), http://www.slideshare.net/upwork/2015-us-
freelancer-survey-53166722/1.

17 Id.

18 Kelly Monahan et al., Decoding Millennials in the Gig Economy; Six Trends to Watch in Alternative Work,
deloitte insights (2018), https://www2.deloitte.com/us/en/insights/focus/technology-and-the-future-of-work/millen-nials-in-the-
gigeconomy.html?id=us:2el:3lk:4di_gl:5eng:6di&range=0/2/5/3/1/3/35/12/0:0,0/2/5/3/1/3/35/12/0:141; see also, Amy Wang, The
Number of Americans Working for Themselves Could Triple by 2020, quartz at work business (2018), https://work.qz.com/1211533/
the-number-of-americans-working-for-themselvescould-triple-by-2020/.

19 See, Michael Quinlan, The Effects of Nonstandard Forms of Employment on Worker Health and Safety, intl. labour office conditions
of work and employment series (2015), 67; see also, Gary Mullins, Contingent Works and Occupational Health: A Review on the
Health Effects of Non-Traditional Work Arrangements, harvard public health review (2018), 14; Richard Smith, Rights on Demand:
Ensuring Workplace Standards and Worker Security in the On-Demand Economy, NELP (2015).

20 Kochan et al., Human Resource Strategies and Contingent Workers: The Case of Safety and Health in the Petrochemical Industry,
human resource mgt. (2014), 33(1), 55-71.

21 Foley et al., Contingent Workers: Workers' Compensation Data Analysis Strategies and Limitations, am. j. ind. med. (2014), 57,
764-75; see, Kochan, supra note 35.

22 See, Cummings et al., Contingent Workers and Contingent Health: Risks of a Modern Economy, jama (2008), 299, 448-50; see also,
Benach et al., Precarious Employment and Health, j. epidemol. common health. (2007), 61, 276-77; see also, Dey et al., What Do We
Know about Contracting Out in the United States? Evidence from Household and Establishment Surveys, labor in the new economy.
(2007), 61, 267-304; see, Marcia Facey & Joan Eakin, Contingent Work and Ill Health: Conceptualizing the Links, social theory &

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health. (2010), 8(4), 326-246; see also, Landsbergis et al., Work Organization, Job Insecurity and Occupational Health Disparities,
am. j. ind. med. (2014), 57, 495-515.

23 Connelly et al., Emergent Trends in Contingent Work Research, j. manag. (2004), 30, 959-83.

24 Marianna Virtanen et. al, Temporary Employment and Health: A Review, intl. j. epidemiol. (2005), 34(3), 610-22.

25 Fabiano et. al, A Statistical Study of Temporary Work and Occupational Accidents: Specific Risk Factors and Risk Management
Strategies, safety science (2008), 46(3), 535-44.

26 Workplace Injuries: Beyond the Numbers, bureau of labor statistics (2019), 8(10).

27 Id.

28 Occupational Health and Safety Act of 1970 (“OSHA”), 29 U.S.C. § 650 (as amended) (“To assure safe and healthful working
conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and
encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information,
education, and training in the field of occupational safety and health; and for other purposes.”).

29 Hawai'i State Plan for Occupational Safety and Health: Operational Status Agreement, 29 C.F.R. § 1902 2017; OSHA, 29 U.S.C. §
667(b) (as amended) (“Any State which, at any time, desires to assume responsibility for development and enforcement therein of
occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard
has been promulgated under section 6 shall submit a State plan for the development of such standards and their enforcement.”);
OSHA, 29 U.S.C. § 667(c) (as amended) (“The Secretary shall approve the plan submitted by a State under subsection (b), or any
modification thereof, if such plan in his judgment(1) designates a State agency or agencies as the agency or agencies responsible
for administering the plan throughout the State, (2) provides for the development and enforcement of safety and health standards
relating to one or more safety or health issues, which standards (and the enforcement of which standards) are or will be at least as
effective in providing safe and healthful employment and places of employment as the standards promulgated under section 655 of
this title which relate to the same issues, and which standards, when applicable to products which are distributed or used in interstate
commerce, are required by compelling local conditions and do not unduly burden interstate commerce.”).

30 OSHA, 29 U.S.C. § 653(a) (as amended) (“This Act shall apply with respect to employment performed in a workplace.”); OSHA, 29
U.S.C. § 652(4) (as amended) (“The term ‘employer’ means a person engaged in a business affecting commerce who has employees,
but does not include the United States (not including the United States Postal Service) or any State or political subdivision of a
State.”); OSHA, 29 U.S.C. § 652(4) (as amended) (OSHA's “General Duty” Clause requires that “each “employer ... furnish to each
of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to
cause death or serious physical harm to his employees.”); OSHA, 29 U.S.C. § 654 (as amended) (“The term ‘employee’ means an
employee of an employer who is employed in a business of his employer which affects commerce.”).

31 OSHA, 29 U.S.C. § 652(4) (as amended) (OSHA's “General Duty” Clause requires that “each “employer ... furnish to each of his
employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees.”).

32 OSHA, DOL, CPL 02-00-124, OSHA Instruction: Multiemployer Citation Policy (December 10, 1999); HIOSH, DLIR, Directive
No. CPL-02-00-159, Field Operations Manual (April 15, 2016); Beatty Equip. Leasing v. Sec'y of Labor, 577 F.2d 534 (9th Cir. 1978)
(The court held that liability would be imposed on petitioner because it created a hazard or had control over the hazardous condition
on a multi-employer construction site even though its own employees were not exposed.).

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33 OSHA, DOL, CPL 02-00-124, OSHA Instruction: Multiemployer Citation Policy, supra, note 63; HIOSH, DLIR, Directive No.
CPL-02-00-159, Field Operations Manual, supra, note 63.

34 Prange, supra, note 1; see, Seth Harris, Alan Krueger, A Proposal for Modernizing Labor Laws for Twenty-
First Century Work: The “Independent Worker” (The Hamilton Project, 2015), http://www.hamiltonproject.org/papers/
modernizing_labor_laws_for_twenty_first_century_work_independent_work.er/ (suggesting a new, middle classification, which
would allow workers and employers to retain some of the freedoms associated with independent work while enjoying some of the
protections from being mistreated).

35 Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 941 (9th Cir. 1994); see, Walling v. Portland Terminal Co., 330 U.S. 148, 150-51 (1947)
(Reference for the common law test).

36 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992).

37 Id.

38 OSHA Launches Initiative to Protect Temporary Workers, Occupational and Health Safety Administration, Media
Release 13-800-NAT (2013), https://www.osha.gov/news/newsre-leases/national/04292013; OSHA Policy Background on the
Temporary Worker Initiative, Occupational and Health Safety Administration (2013), https://www.osha.gov/temp_workers/
Policy_Background_on_the_Temporary_Worker_Initiative.html; OSHA Temporary Worker Initiative, Occupational and Health
Safety Administration (2013), https://www.osha.gov/temp_workers/index.html.

39 See, Loomis Cabinet Co., 20 F.3d at 942 (The host employer's exercise of day-to-day supervision of the temporary workers and its
control over the work environment demonstrates a high degree of control over the temporary workers consistent with the presence
of an employment relationship at common law.); see also, Universal Constr. Co. v. OSHRC, 182 F.3d 726, 728-731 (10th Cir. 1999)
(“Even if daily supervision is not sufficient alone to establish that the host party is the employer of the temporary workers, there are
other reasons for the allocation of recordkeeping responsibility. An employer's duties and responsibilities are not limited only to his
own employees. Assuming that the host is an employer under the Act (because it has an employment relationship with someone),
it reasonably should record the injuries of all employees, whether or not its own, that it supervises on a daily basis. This follows
because the supervising employer is in the best position to obtain the necessary injury and illness information due to its control over
the worksite and its familiarity with the work tasks and the work environment.”); OSHA Launches Initiative to Protect Temporary
Workers, supra, note 75.

40 Hawai'i Revised Statutes (“HRS”) § 386-1 (“Employment” means any service performed by an individual for another person under
any contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully entered into.); HAR §
10-12-1; HRS § 386-1 (“Employer” means any person having one or more persons in the person's employment.); HAR § 10-12-1;
HRS § 386-1 (“Employee” means any individual in the employment of another person.); HAR § 10-12-1.

41 Locations, Inc. v. Hawai'i Department of Labor and Industrial Relations, 79 Hawai'i 208, 900 P.2d 784 (1995); HRS § 386-73.5.

42 Locations, Inc., 79 Hawai'i at 208.

43 Id., at 212.

44 See, Emily Atmore, Note, Killing the Goose that Laid the Golden Egg,: Outdated Employment Laws Are Destroying the Gig Economy
minn. l. rev. (2018), 102, 887-922.

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45 Jennifer Pinsof, Note, A New Take on a New Problem: Employee Misclassification in the Modern Gig Economy, mich. telecomm.
tech. l. rev. (2016), 22, 341-44; see, Seth Harris & Alan Krueger, A Proposal for Modernizing Labor Laws for Twenty-First-Century
Work: The “Independent Worker”, the brookings institute, the hamilton project (2015).

46 Assembly Bill No. 5, california legislature (2019-2020), https://leginfo.legislature.ca.gov/faces/bill-TextClient.xhtml?

bill_id=201920200AB5.

47 Id.; see, Economically Dependent Worker, eurofund (2007 (Many EU Member States are amending employment laws to accommodate
a third category of workers called “dependent workers. “The concept of ‘economically dependent worker’ falls between the two
established concepts of employment and self-employment. It refers to those workers who do not correspond to the traditional definition
of employee because they do not have an employment contract as dependent employees. However, although formally ‘self-employed,’
they are economically dependent on a single employer for their source of income. The status of these workers falls in between self-
employment and dependent employment, and they have some characteristics of both forms. First, they are formally self-employed, in
that they usually have a sort of ‘service contract’ with the employer. Second, they depend on one single employer for all or much of
their income. They are often similar to employees in a number of ways. They may lack a clear organisational separation, working on
the employer's premises and/or using the employer's equipment. There may be no clear distinction of tasks: they may perform similar
tasks to existing employees, or of those formerly undertaken by employees, before the work was outsourced. Finally, their ‘services'
fall outside the traditional professions, in that they often do not require specific skills or professional knowledge or competence.”); see
also, Roberto Cruz, A Class of Their Own? Independent Contractors Causing Conundrum, workforce (2015) (Canada has likewise
adopted a third category of workers called “dependent workers.’).

48 See, Gig Economy Gives Workers Freedom, but What about Safety?, WBUR (2017), https://www.wbur.org/hereandnow/2017/12/04/
gig-economy-worker-safety; Recommendations for How OSHA Can Improve Health and Safety for Temporary Workers, nat.
council for occupational safety and health (2016), http://nationalcosh.org/recommendations-how-osha-can-improve-health-and-
safety-temporary-workers.

49 New State Ice Co. v. Libermann, 285 U.S. 262 (1932), (U.S. Supreme Court Justice Louis Brandeis famously said, “a state
may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of
the country.”); Ruth Reader, Senator Warner Has a New Plan to Protect Gig Economy Workers, fast company (2019), https://
www.fastcompany.com/90312184/senator-mark-warner-has-a-new-plan-to-protectgig-economy-workers.

50 Warren Re-Introduces Bills to Prepare Americans for the Future of Work, mark r. warren press release (2019), https://
www.warner.senate.gov/public/index.cfm/2019/2/warner-reintroduces-bills-to-prepare-americans-for-the-future-of-work.

51 See, Sophia Quinton, With Growth of the Gig Economy, State's Rethink How Workers Get Benefits,
pew (2017), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/02/22/with-growth-of-the-gig-economy-
states-rethink-how-workers-get-benefits; House Bill 2109, state of washington, 65th legislature (2017).

52 See, Dan Levine & Kristine Cooke, Union, Gig-Economy Firms Gear Up for Benefits Battle, reuters (2016), https://www.reuters.com/
article/us-labor-tech-benefits-idUSKBN13N0YL; New York Bill Would Let Gig Companies Provide Benefits to Contractors,
gartner (2017), https://www.ceb-global.com/talentdaily/new-york-bill-gig-economy-companies-provide-benefits/ (“[Handy's] draft
bill establishes a program whereby participating gig-economy companies would pay the equivalent of 2.5% of workers' income into
individual health savings accounts. Handy's cleaners in New York earn approximately $20 an hour and work, on average, 10 hours
a week. A 2.5% health stipend deposited into an individual account would amount to about $800 a year for a Handy worker earning
$33,000--less than one third of the cost of an individual silver plan on the New York State health insurance market, according to
the Kaiser Family Foundation.”).

53 The Black Car Fund FAQS, the black car fund (2019), http://www.nybcf.org/faqs.

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54 See, id.; see also, Joseph Kennedy, Three Paths to Update Labor Law for the Gig Economy, information technology & innovation
foundation (2016).

55 Care.Com Addresses Gig Economy Benefits Quandary with Peer-to-Peer Platform, GARTNER (2016), https://www.cebglobal.com/
talent-daily/care-platform-peer-to-peer-benefits.

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