NYC Set to Pass Food Delivery App Laws Securing Workers Minimum Pay, Bathrooms and More

Yves here. Even though workers seem to be clawing back some of their lost ground via wage increases, we’ve still seen very little in the way of successes in bargaining situations. And with ever-more employer surveillance and forcing workers to meet almost impossible production schedules, the losses in control over conditions are at least as bad as the long-term decay in pay levels. So a victory in the “gig economy” space is particularly welcome. Some heads will explode over the the requirement that food delivery workers be allowed to use restaurant bathrooms.

By Josefa Velasquez and Claudia Irizarry Aponte. Originally published at THE CITY on September 22, 2021

De Blasio supports first-in-the-nation bills scheduled for Thursday vote, seeking better working conditions in the booming tech-driven food courier economy. The City Council’s actions come as app firms sue to block bills it passed previously.

City lawmakers are acting to aid workers in the booming multi-billion dollar app-based food delivery industry, scheduling a vote for Thursday on a landmark slate of bills intended to ensure bathroom access, minimum pay and more.

The proposals were sparked by the activism of Los Deliveristas Unidos, a labor organization of immigrant delivery couriers who kept New Yorkers fed during the pandemic. Supporters say the New York effort to provide minimum working standards for app-based couriers is the first of its kind in any major U.S. city — and they hope the measures will influence local governments across the country.

Mayor Bill de Blasio on Wednesday announced his support for the measures, which come as the city fends off dual lawsuits from delivery giants over previous Council-passed regulations on their business.

“The exploitation of delivery drivers is unacceptable,” Bill Neidhardt, a de Blasio spokesperson, told THE CITY. “City Hall wholeheartedly supports these bills to protect delivery workers and deeply appreciates the grassroots organizing of Los Deliveristas Unidos to make this possible.”

But unlike prior Council bills tied up in court battles, the new package has the full support of at least one app company, Grubhub.

The new package of six bills would allow food couriers access to restaurant bathrooms, put limits on how far they can be asked to deliver, set minimum payments per trip and ensure that tips get to workers.

For the first time, City Council Speaker Corey Johnson (D-Manhattan) declared his support Tuesday night.

“The basic human dignity of delivery workers, many of whom are immigrants, has been ignored for too long across the country,” said Johnson in a statement. “New York City is taking the lead in transforming this industry with a legislative package that will give deliveristas the rights they deserve.”

Sergio Ajche, a Guatemalan food delivery worker from Brooklyn and one of the leaders of the grassroots immigrant labor collective Los Deliveristas Unidos, said he’s feeling “happy and optimistic” over the expected approval of the bills.

“We have the support of a good group of elected officials, and that helps us muster strength to keep fighting. These six bills will help workers, but they’re not enough,” Ajche told THE CITY in Spanish. “Only time, each passing day will inform us what else we should change and demand. Every day more delivery workers are getting together and the movement grows. We’re making progress.”

‘Fierce Determination’

The City Council vote comes nearly a year after THE CITY first reported workers beginning to unite over the perilous and exploitative nature of app-based delivery work, including lack of bathroom access, alleged wage theft, insufficient pay, and reports of muggings and robberies.

Restaurant staff denying bathroom access became a galvanizing issue in the early days of the pandemic, as indoor dining shut down, as did most other restroom options — and the takeout business boomed.

The bill from Councilmember Carlina Rivera (D-Manhattan) would require most restaurants to allow delivery workers picking up an order to use the bathroom if requested.

The measure also would grant the city Department of Consumer and Worker Protection the power to fine bars and restaurants that deny restroom access to couriers up to $50 on the first offense and $100 for every subsequent violation.

Rivera told THE CITY she’s been working with the Deliveristas for nearly two years to come up with a package of bills.

“Though this battle has been long and hard-fought, the fact that the Council will be voting on our legislation just a few short months after introduction is a testament to the organizing power and fierce determination of our city’s Deliveristas,” Rivera said.

Storm Showed Dangers

The working conditions of app-based food couriers came under further scrutiny earlier this month when the remnants of Hurricane Ida barrelled down on New York City, dumping a record amount of rain, paralyzing mass transit and leaving drivers stranded on roadways.

Workers hauled outside in hip-deep water for meager pay as orders continued coming in. Images of food couriers wading through the deluge quickly began circulating on social media, reigniting public conversation over hazardous conditions workers face.

A delivery worker in Astoria toiled in high water as the remnants of Hurricane Ida poured over the region Sept 1.Obtained by THE CITY

Toño Solís, a delivery worker and member of the Deliveristas, told THE CITY that he earned just $5 for an hour-long trip to deliver a meal in Brooklyn from Astoria the night of the downpour, including tip.

He made just $115 during the 9.5 hour workday, roughly $12 an hour, with tips — lower than New York’s $15-an-hour minimum wage. The apps treat couriers as independent contractors, not employees, leaving them exempt from minimum wage requirements.

Council bill sponsors say the crisis for workers runs deeper.

“We shouldn’t have needed a pandemic, or a hurricane, for us to recognize that Deliveristas are essential workers who deserve essential rights,” said Councilmember Brad Lander (D-Brooklyn), who’s advancing a measure to regulate drivers’ pay.

How these so-called gig workers get classified by employers has become a major issue nationally. A New York State proposal that would have allowed gig workers to unionize but stopped short of reclassifying them as employees failed to gain support in Albany.

Last month, a California trial court dealt a blow to tech companies over a successful 2020 ballot proposition that allowed gig workers to be reclassified as independent contractors, ruling that it was unconstitutional.

A survey of 500 York City app-based food delivery workers released last week found that workers on average earn less than the state’s minimum wage and that pay is often unreliable, with money coming in late and tips whittled down or missing.

Food delivery workers reported earning an average of $7.87 an hour before tips and about $12.21 an hour with tips included, far less than the $33 food delivery company DoorDash claims its Manhattan couriers earn.

The bill introduced by Lander, who is running for city comptroller, would establish minimum per-trip payments for delivery workers, similar to protections that the city’s Uber and Lyft drivers already have in place.

Delivery cyclists rode down Broadway in October 2020 to protest a lack of protection during the coronavirus pandemic.
Ben Fractenberg/THE CITY

The city Department of Consumer and Worker Protection would be obligated to study working conditions and then issue rules establishing minimum per-trip payments, which would not include tips. Another bill would require that food delivery apps disclose to customers what portion of their tip is distributed to workers, how the tip is paid to them and what amount of each tip is used to make up workers base pay

Yet another measure would prohibit online delivery companies from charging workers any fees to receive wages and tips, as well as require them to pay couriers at least once a week and offer at least one payment option that doesn’t require a bank account.

Regulating an ‘Indispensable Industry’

Hildalyn Colón Hernández, director of policy at the Workers Justice Project, a Brooklyn-based center that represents the Deliveristas, said the Council’s package can serve as a “framework” for other municipalities.

The City Council’s package received an endorsement from at least one of the food ordering companies, Grubhub.

Chicago-based Grubhub, one of the major tech companies involved in the app-based delivery sector, said through a spokesperson that “Grubhub supports the proposals the City Council is currently considering that would provide a number of new protections.”

But the possibility of a legal showdown with other app firms looms large.

A federal lawsuit filed earlier this month by delivery giants that include DoorDash, Uber Eats and Grubhub claims earlier Council action to cap fees they charge to restaurants amounts to unconstitutional overreach.

Last week, San Francisco-based DoorDash filed a lawsuit against the city over a new law approved in August that requires delivery companies to provide customer data to the restaurants that fulfill the orders.

Uber Eats declined to comment. Relay, a smaller New York City-based food delivery company that works with restaurants, did respond to requests for comment.

One of the thornier items, according to people familiar with the discussions, is a proposal by Councilmember Justin Brannan (D-Brooklyn) to allow delivery workers to set limits on how far they’re willing to travel for a delivery. They’d also be able to select which routes they want to take without fear their rating on the apps will decrease.

In an emailed statement, DoorDash said it had concerns with Brannan’s bill because it could lead to couriers to decline to deliver to some neighborhoods, leading to discrimination. DoorDash spokesperson Campbell Millum said the company recognized the “unique challenges” facing delivery workers in the five boroughs and would work with city officials.

“We will continue to work with all stakeholders, including the City Council, to identify ways to support all delivery workers in New York City without unintended consequences,” Millum said in an emailed statement.

Citing the survey released last week by the Cornell University School of Industrial and Labor Relations and the Workers Justice Project, Brannan said the report was a “scathing indictment on this unregulated, unsafe, yet completely indispensable industry.”

He added: “We cannot sit back and allow companies worth billions to profit off the backs and bikes of exploited workers.”

‘The Flags of Many Countries’

Councilmember Carlos Menchaca (D-Brooklyn), who introduced the payment bill, said the measures highlight “the grotesque nature of the style of capitalism that’s connected to these apps.”

“That for me, has been just one example of what they’ve been trying to get away with,” Menchaca added. “And they’re no longer going to get away with here.”

Another bill to be voted on would require that the third-party delivery platforms supply workers with insulated delivery bags. The app-branded thermal bags can cost up to $60, workers told THE CITY, and are an unofficial requirement for the job to keep food hot before it reaches the customer.

Los Deliveristas Unidos plan to host an event at City Hall Park Thursday as the Council readies to vote, offering bicycle tune-ups, assistance with NYPD bike registration and help filling out applications for state pandemic financial assistance.

A growing number of riders originally from Bangladesh and other countries will be joining the largely Mexican and Central American Deliveristas, members say.

“Our vision is that this movement includes the flags of many countries — there’s no race or color,” Ajche said. “It’s for every delivery worker who identifies with our movement.”

This story was originally published by THE CITY, an independent, nonprofit news organization dedicated to hard-hitting reporting that serves the people of New York.

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  1. lyman alpha blob

    That “the grotesque nature of the style of capitalism that’s connected to these apps” could very easily be called slavery, but for some reason we are reluctant to use that term for modern day “gig” work.

    Tweaking things around the edges isn’t going to cut it. I’m guessing these people don’t want bathroom breaks and insulated delivery bags, they want to be paid enough to maybe afford an apartment in the city where they work. For that, they need to be classified as employees.

    My company had to deal with Uber as a customer recently. In order to be paid, we had to sign up on some Uber platform. The rep I was dealing with kept telling me that if I did that, we’d then be able to make a “withdrawal” from Uber. I was very confused and told her that as their vendor, we don’t make “withdrawals” – they had our bank info and they paid us on receipt on the invoice by making a deposit to our account, which is how every other company does things. The platform asked me to input the threshold our account had to hit before a “withdrawal” would be made and I could enter $10, $50, etc. I’m thinking “who issues invoices for $10” and then it dawned on me – they are requiring their actual vendors to use the same [family blog]ing app they make their drivers use to get paid because they consider their drivers as vendors and not employees! And everyone else in the company gets trained in the jargon. They are going to keep up this charade that these drivers are not actual employees as long as they can get away with it.

    These less than half measures are just virtue signaling from the elites who make the laws to make it look like they give a damn. What needs to happen is a new minimum wage law that pays $25/hr in NYC (and even that probably isn’t a real living wage in the city) and then require these delivery companies to treat these workers as employees rather than “vendors” of their own labor, with better pay and benefits.

    If they won’t do that, revoke their charters. And not being able to treat people as slaves proves to be an unviable business model, then so be it. People can walk down the stairs to the street and pick up their own damn food rather than expecting the servants to fetch it for them.

    1. lincoln

      Uber drivers actually have less rights than vendors. Traditional vendors and contractors can invoice Uber for their expenses. Drivers are prohibited from billing Uber for expenses, including their cars, and insurance, and maintenance, which means these workers are responsible for paying much of Uber’s overhead. Uber does this to transfer specific business costs to gig workers, in order to lower theirs overall costs as well as insulate them from related cost increases.

  2. jr

    Last winter, on a freezing night, I had to run out to the ATM around the corner. When I got there, it was filled from front to back with delivery guys escaping the cold. It’s a big ATM space and there were well over 20 dudes talking and laughing inside. You would have needed an HVAC suit to avoid inhaling another’s exhalations. As I looked in, a dozen pairs eyes looked back at me, a mixture of anger and apprehension, probably for fear of someone calling the police or something.

  3. Kristiina

    The beutiful antidote puts me to think how much Yves has done for us. So much beauty and passion! Wishing her all the best!

  4. Larry Y

    The “clever” people financing and running the “gig” platforms are endlessly “innovating” by looking for loopholes and new ways to exploit workers. I don’t see how laws and regulations can keep up with that, unless there are fully empowered unions.

    This is on top of health and safety regulations, and setting a floor on wages.

    1. Mike Elwin

      As a career independent contractor in Silicon Valley, now retired, I hope that gig platforms can be profitable without misclassifying their workers. By far, most independent contractors are doing fine; the last thing we want is to be employees.

      The platforms’ classification problem results from wanting more control of the workers than the law allows, not from something inherently wrong with gig work. Employers have to choose between control and low costs, and that’s that.

      RE the NYC proposals, I’m all for government intervention to support independent contracting, rather than banning most of it per the labor unions and Democrats.

  5. Basil Pesto

    Literally just watched this trailer for a documentary/essay called ‘The Gig Is Up‘ (although, perhaps interestingly for NC readers, they refer to it as “the platform economy”). Was going to pop it in links but I’ll leave it here instead since it’s more germane.

    1. drumlin woodchuckles

      Those platform gig workers in the trailer all looked young. Should I suppose that many or even most gig workers are young?

      It sounds like a silly dream, but what if all the older homedwelling relatives of all those gig workers allowed them all to live in those older relatives’ homes and stop gig working long enough to either torture the gig employers into paying a middle class wage ( and charging the customers a middle class price) . . . . or just going extinct as a business sector? A long slow-rolling silent stealth-strike by tens of millions of young gig people and their older homedwelling relatives who understand that this is a slow siege war of total victory or utter defeat.

      A silly dream , I know . . .

  6. Rod

    Los Deliveristas Unidos plan to host an event at City Hall Park Thursday as the Council readies to vote, offering bicycle tune-ups, assistance with NYPD bike registration and help filling out applications for state pandemic financial assistance.

    A growing number of riders originally from Bangladesh and other countries will be joining the largely Mexican and Central American Deliveristas, members say.

    But of course Taxes are required, as I recall last May’s deadline, to paid on Earned Income above 600$, so maybe a workshop on 1099 Income Accounting or acquiring an ITIN would also be in order. I never see that mentioned in articles like this.

  7. Synoia

    Ir appears the “self employed” category is being misused.

    You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.

    How is it that delivery drivers self employed when their every trip ((what will be done and how it will be done) is dictated by their “employer.”

  8. Kevin Carhart

    In addition to having a look at what the class-of-2009 misclassification machine is doing now, it’s also interesting to have a look at where the idea-heavy stridency has moved on to. If you could overgeneralize that startups are “early”, public companies are “the middle” and PE ownership is “late”, then several of the misclassification ghouls are now in the middle. They might accept bits of accomodation here and there because it’s harder to remain as strident when you’re big. And I am not saying certain reforms are adequate. At the same time, I don’t think the cycle is inevitable and I’m interested in disrupting it, so we should also be looking at who did a Series B yesterday. An anonymous manager becomes the new CEO of a place as it grows, and the lightning-rod, ideological celebrity moves on to , where? The Kalanicks and Busque/Solivans go where? In Solivan’s case, Ikea bought Taskrabbit and Solivan became a general partner at Fuel Capital. Does she then spread misclassification and other deregulation stridency in her investments, advice towards her portfolio companies? Let’s look at those also. What are the vectors of attack? It can be done. For instance, “Homejoy Shuts Down, Citing Worker Misclassification Lawsuits”

    1. drumlin woodchuckles

      It certainly looks like a way to exterminate misclassification-based companies by attriting and degrading them with too many lawsuits to survive.

      Start with small companies first and then work up to mid sized companies and then to the biggest companies which can still be exterminated by such perfectly legal and non-frivolous suits. After all, serial lawbreaker companies have no right to exist and do not deserve to survive. And if they could all be lawsuit-exterminated, then only law-abider companies would be left. And would be kept law abiding by a well taught terror of the consequences of becoming serial misclassifiers themselves.

      1. Kevin Carhart

        Filing a large number seems intriguing, if it couldn’t backfire. I read in the press that filing a large number of arbitrations is a new tactic when would-be plaintiffs are stuck in agreements with compulsory arbitration clauses.

        It’s funny that I feel vaguely guilty for wanting the extermination of a corporate person. But corporations are not people, and there’s nothing wrong with wanting to kill one. The humans – founder etc – would walk away scot free. Adora Cheung of HJ just got a job at Google.

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