Portable Benefits to Improve the Gig Worker Economy, End Notes

  1. Nick Hanauer and David Rolf, “Shared Security, Shared Growth,” Democracy Journal No. 37 (Summer 2015), https://democracyjournal.org/magazine/37/shared-security-shared-growth/; Jeff Wallenfeldt, “The Second New Deal,” Encyclopedia Britannica, accessed Dec. 13, 2022,  https://www.britannica.com/event/New-Deal/FDRs-Fireside-Chats-the-role-of-Eleanor-Roosevelt-and-crucial-New-Dealers#ref348058
  2. Natalie Foster, Greg Nelson, and Libby Reder, Portable Benefits Resource Guide, Aspen Institute, July 13, 2016, https://www.aspeninstitute.org/publications/portable-benefits-resource-guide/
  3. Daniel Kurt, Laws That Protect Employees, Investopedia, May 27, 2022, https://www.investopedia.com/articles/personal-finance/120914/8-federal-laws-protect-employees.asp#toc-3-health-coverage
  4. Liya Palagashvili, “Barriers to Portable Benefits Solutions for Gig Economy Workers,” The Center for Growth and Opportunity at Utah State University, Oct. 21, 2020, https://www.thecgo.org/research/barriers-to-portable-benefits-solutions-for-gig-economy-workers/. (The War Labor Board had ruled in 1943 that price and wage controls didn’t extend to fringe benefits, such as healthcare, prompting more employers to offer such benefits. Later, in 1954, the IRS declared employer contributions to health insurance premiums were tax exempt. To this day employer contributions to employee’s benefits are granted special tax treatment.)
  5. C.f. Ibid.
  6. Ulrich, Katherine Elizabeth. “You Can’t Take it with You: An Examination of Employee Benefit Portability and its Relationship to Job Lock and the New Psychological Contract.” Hofstra Labor and Employment Law Journal 19 (2001): 3.(“For many workers, however, the greatest barrier to job change is the loss of employer-based benefits, such as pensions and health insurance.”)
  7. C.f. Ibid
  8. Ibid, 220
  9. David Rolf, Shelby Clark, and Corrie Watterson Bryant, Portable Benefits in the 21st Century, Aspen Institute,  Dec. 14, 2022,  https://www.aspeninstitute.org/wp-content/uploads/files/content/upload/Portable_Benefits_final2.pdf
  10. Palagashvili, “Barriers to Portable Benefits”
  11. Foster, Portable Benefits Resource Guide
  12. Hanauer, “Shared Security, Shared Growth”
  13. Steven Hill, New Economy, New Social Contract: A Plan for a Safety Net in a Multiemployer World, New America, August 2015, https://static.newamerica.org/attachments/4395-new-economy-new-social-contract/New%20Economy,%20Social%20Contract_UpdatedFinal.34c973248e6946d0af17116fbd6bb79e.pdf
  14. Eli Lehrer, “The Future of Work,” National Affairs No. 53 (Fall 2022), https://www.nationalaffairs.com/publications/detail/the-future-of-work
  15. Hanauer, “Shared Security, Shared Growth”
  16. Ibid.
  17. Ibid.
  18. Ibid.
  19. Hill, New Economy
  20. Lehrer, “The Future of Work”
  21. Ibid.
  22. Ibid.
  23. The classification problem, according to Seth Oranburg, is created by the National Labor Relations Act of 1935, which “requires all workers to fit into one of two categories: employee or independent contractors.” Seth Oranburg, Unbundling Employment: Flexible Benefits for the Gig Economy, 11 Drexel L. Rev. 1, 2 (2018). Solving this problem by creating what Palagashvili calls a “third way worker” solution creates “risks for companies that might otherwise have provided benefits to contractors.” Palagashvili, supra note 9, at 22
  24. Palagashvili, “Barriers to Portable Benefits”
  25. Hanauer, “Shared Security, Shared Growth”
  26. Hanauer, “Shared Security, Shared Growth”
  27. Ibid.
  28. Ibid.
  29.  “AB-5 Worker Status: Employees and Independent Contractors.,” California Legislative Information, September 19, 2019, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB5
  30.  “H.R.842 – 117th Congress (2021-2022): Protecting the Right to Organize Act of 2021,” Congress.gov, March 11, 2021, https://www.congress.gov/bill/117th-congress/house-bill/842
  31. “Employee or Independent Contractor Classification under the Fair Labor Standards Act,” Federal Register, October 13, 2022, https://www.federalregister.gov/d/2022-21454
  32. Suhauna Hussain & Johana Bhuiyan, “Prop. 22 Passed, a Major Win for Uber, Lyft, DoorDash. What Happens Next?”, Los Angeles Times, November 4, 2020, https://www.latimes.com/business/technology/story/2020-11-04/prop-22-passed-what-happens-next
  33. Curran McSwigan, “Explainer: Benefits Models for Gig Workers,” Third Way, April 12, 2022, https://www.thirdway.org/report/explainer-benefits-models-for-gig-workers
  34. See Sara Ashley O’Brien, Prop 22 Passes in California, Exempting Uber and Lyft From Classifying Drivers as Employees, CNN (Nov. 4, 2020), available at https://bit.ly/3HDhFtM; see also Faiz Siddiqui, Uber, Other Gig Companies Spend Nearly $200 Million to Knock Down an Employment Law They Don’t Like — And it Might Work, Washington Post (Oct. 26, 2020), available at https://bit.ly/3FltCBE
  35. McSwigan supra note 38
  36. Palagashvili, supra note 9, at 12
  37. See id. at 15
  38. IRS, 20 Factor Test – Independent Contractor or Employee?, (accessed Dec. 13, 2022), available at https://bit.ly/3PnwKlc
  39. Palagashvili at 15 (quoting Aspen Portable Benefits Resource Guide at 25)
  40. Rolf et al., supra note 14 at 11
  41. See The Black Car Fund, History, (last accessed Dec. 14, 2022), available at https://bit.ly/3FTdx7K
  42. Rolf, et al., supra note 14, at 10-12
  43. Ibid.
  44. Portable Benefits for Independent Workers Pilot Program, H.R. 6767, 117th Congress (2022), available at https://bit.ly/3ByOhRP
  45.  Id.
  46. A.B. 487, 2021 Leg., 105th Sess. (WI 2022), available at https://bit.ly/3UKhCiK (Wisconsin proposed legislation last session that would have created portable benefits accounts, but dictated the type of entities that could administer the accounts and the type of benefits offered. The other issue with this bill is that it included a provision classifying gig workers as independent contractors, effectively tying the portable benefits solution to the classification debate.)