Workology Podcast Ep 123: Universal Design for the Gig Economy

Workology Podcast | www.workologypodcast.com | @workology
Episode 123: What Universal Access Means
for the Gig Economy and People with
Disabilities with Bobby Silverstein
Episode Link: http://workolo.gy/ep123-wp
INTRO: [00:00:00] Welcome to the Workology Podcast, a podcast for the disruptive
workplace leader. Join host Jessica Miller-Merrell, founder of Workology.com as she
sits down and gets to the bottom of trends tools and case studies for the business
leader. HRN recruiting professional who is tired of the status quo. Now here's Jessica
with this episode of work ology.
Jessica: [00:00:25] Welcome to a new series on the Workology Podcast we're kicking
off focusing on the future of work. This is in collaboration with the Partnership for
Employment and Accessible Technology. You can learn more about PEAT by visiting
peatworks.org. In 2017, CNN reported that the freelance economy now accounts for
34 percent of the total workforce. It is expected to grow to 43 percent by 2020. As we
continue to see a substantial shift in the employment world from the traditional
employee to the contract gig or freelance worker that's taking center stage. I wanted to
talk about universal access for everyone who is interested in being a part of this new
fluid workforce including those with a disability.
Today I'm joined with Bobby Silverstein. He's a partner in the law firm of powers Pyles
center and Freeville PC. Bobby is also the former staff director and chief counsel of the
U.S. Senate subcommittee on disability policy. When the Americans With Disabilities
Act was signed into law and as a member of the team. His expertise is civil rights law
for people with disabilities. Bobby, welcome to the Workology Podcast.
Bobby: [00:01:36] Well, thanks for inviting me to discuss this really important issue.

Jessica: [00:01:40] Let's talk a little bit about what universal design is first and why it's
important to kind of set the stage for us.
Bobby: [00:01:48] Sure. Basically, universal design is to design and composition of an
environment so that it can be understood and used by the greatest number of people
regardless of age size ability or disability. Let me give you an example a web based
platform used in the gig economy should create a marketplace that is accessible to
and usable by all customers including the companies seeking their workers as well as
potential workers with or without disabilities.
So if a web based platform is accessible, usable and convenient to everyone. benefits
Universal design is good design, and you asked me why is this important. Well, a
representative of the US Department of Justice in testimony before a committee put it
this way and I'm quoting, “Access to the Internet and emerging technologies is not
simply a technical matter but a fundamental issue of civil rights. Access to information
via electronic technologies is increasingly becoming the Gateway civil rights issue for
people with disabilities.”
He also testified that, “We must avoid the travesty that would occur if the doors that
are opening to Americans from advancing technology were closed for individuals with
disabilities because we were not vigilant.”
Jessica: [00:03:46] I'm really excited to talk about this topic because we are talking
about web place platforms today and accessibility for everyone whether you are a
freelancer gig worker and you're accessing up work Fiverr, TaskRabbit, and the many
others they seem to be adding by the men and are growing by the minute. So we're
talking about this today in terms of how it impacts not only the freelance economy but
also many of us who are engaging those freelance gig workers.
So as a civil rights attorney, Bobbie can you share with us how some of the federal
agencies responsible for enforcing our nation's civil rights laws particularly with the
Americans With Disabilities Act or ACA have applied these laws to the gig economy.

Bobby: [00:04:31] Sure. You know it's interesting that a number of federal agencies
have made the issue of the gig economy an emerging issue that is requiring some real
close scrutiny. In other words to assessing interpretations based on the new gig
economy for example the Equal Employment Opportunity Commission EEOC which is
responsible for enforcing our civil rights laws just recently amended their strategic
enforcement plan for the years 2017 through 2021.
Part of the new plan says that EEOC should quote address issues related to and then
they have a bunch of words but it's related to the gig gig economy and related to
complex employment relationships and structures in the 21st century workplaces
focusing on temporary workers staffing agencies independent contract relationships
and the on demand economy. In other words the gig economy, the IRS, Department of
Labor, and the National Labor Relations Board are also reassessing the issue and
providing new interpretations and looking at this issue differently.
Jessica: [00:06:11] Based on your understanding of the ADA and a review of
contemporary rules, interpretations, settlement agreements and case law, what
guidance can you provide our listeners?
Bobby: [00:06:24] Jessica kind of what your work what we're doing here is saying the
federal government is reassessing.
And the answer is yes, I can and I can provide you a framework for looking at the legal
and policy issues associated with the new gig economy. And I can do that by using the
ADA the Americans With Disabilities Act as the basis for this framework. So to walk us
through, the framework is basically recognizing that the ACA is a civil rights statute and
the civil rights statute ensures not only equal opportunity but opportunity that is
effective and meaningful for all. So from the perspective of businesses they should be
provided the opportunity to select from amongst the best brightest and most creative
individuals individual vendors also should be provided the opportunity to compete in
this marketplace based on qualifications not arbitrary and capricious reasons such as
disability status.
Jessica: [00:08:04] What are the topic areas included in your gig economy framework?

Bobby: [00:08:08] Well, there are three basic issues or topics that I think folks should
be focusing on. The first is whether a business that uses a web based platform to
select gig workers whether they're acting as employers and whether the individual
vendors are considered employees the second major topic is if these vendors are
considered independent contractors and the companies are not considered employers
subject to the DA whether or not there are other provisions of the ACA that still apply.
In other words if you're not an employer or you're not subject to Title I of the ADA
which deals with employment discrimination but you may well be subject to Title II of
the DA which deals with state and local governments or Title III which deals with public
accommodations. That is businesses that do business with the public. So the second
first issue. Are you as an employer in an employer employee relationship?
If the answer is no, and you are an independent contractor, are you still subject to non-
discrimination rules as it as public accommodations or state and local governments?
The third question is whether those companies that design those web-based platforms
are required to make their marketplace accessible to all including people with
disabilities. And so those are the three major topics that I think we need to discuss.
Jessica: [00:10:13] And these are interesting topics and they're fundamentally different
than the way we as human resources in recruiting and workplace leaders have
operated. Particularly, if the conclusion in a given circumstance is that the business is
not or operating an employer employee relationship and so the question is if they are
an independent contractor are there still requirements and that typically does as she
said go beyond what human resources folks expertise entails.
It sounds like to me that if we are going to be our businesses are going to be
employing contract workers gig workers individual vendors that we need to be
expanding or broadening our employment knowledge. This isn’t just legal knowledge
but knowledge beyond the kind of the traditional scope that we, as HR and recruiting
leaders have been working in.
Bobby: [00:11:17] Yes.

Jessica: [00:11:18] Well, let's talk a little bit more about this framework and businesses
that use these platforms to select gig workers are they acting as employers and
whether the individual vendors are considered employees so subject to Title I of the
ACA and other statutes so can you kind of give us some insights there.
Bobby: [00:11:37] Sure. And the important part here is that many think as of almost by
definition that workers in the gig economy are independent contractors. They come to
that conclusion and that's the end of the story. But the reality is that there were a
certain definitions and certain approaches that one has to take. One does not rely on
what the relationship is referred to by a company. What you are looking at is its fact
specific issues and certain factors that in the case of civil rights issues the EEOC has
established for determining whether or not a relationship is an employer employee
relationship or an independent contractor relationship.
And why is that important? Because Title I applies of Title One of the ADA only applies
to employer employee relationships. It does not apply to independent contractor
relationships. So what are some of the factors that the EEOC is currently looking at?
One factor is the employer has the right to control when, where, and how the worker
performs the job .Whether the worker furnishes the tools the materials and equipment.
Whether the work is performed on the employer's premises. Whether the worker is
paid by the hour week or month rather than an agreed cost of performing a particular
job. So, all these factors are currently weighed, but as I said the EEOC is reviewing this
issue and they may decide to give different weight to certain factors or add some
additional factors because obviously the EEOC would be interested in making sure
there is no discrimination on the basis of disability, or race, gender, or national origin.
And so if the employer employee relationship is found then the traditional issues that
human resources folks are familiar with will come into play. You can't discriminate in
recruitment, hiring, retention, or in the advancement of people with disabilities. You
cannot do indirectly that which you are prohibited from doing directly by entering into a
contract or arrangement with somebody else so that if the employer/employee
relationship is established and you are prohibited from discriminating on the basis of

disability in the recruitment of folks, that means that the ADA Title One
nondiscrimination provisions apply.
Jessica: [00:14:51] Let's take a bit of a reset here. This is Jessica Miller-Merrell and
you're listening to the Workology Podcast. This is a special series on the future of work
in partnership with PEAT. Today we're talking about universal design and the
freelancing gig economy with Bobby Silverstein. You can connect with Bobby on
LinkedIn.
He has a wealth of resources and sources and information that he shared with us.
These are going to be available on the transcript of this particular podcast. You just got
to Workology and type in universal design or you can go to the podcast linked down
on your right side of the Web site and you can access all the resources that Bobby has
shared with us because we've already had a ton of information thrown at us and
there's a lot more interesting things that we're going to be talking about in just a
minute.
Sponsor Message: [00:15:41] Workology Podcast’s Future of Work Series is produced
in has partnership with the Partnership on Employment & Accessible Technology
(PEAT) is a initiative to foster collaboration and action around accessible technology in
the workplace. PEAT works to help employers and companies understand why it pays
to build and buy accessible technology, and how to do so. PEAT is funded by the U.S.
Department of Labor's Office of Disability Employment Policy (ODEP) You can learn
more at Peatworks.org. That's Peatworks.org
Jessica: [00:16:11] So, let's get back to it. Let's talk about this second component of
the framework. If the vendors are considered independent contractors and the
companies are not considered employees subject to Title One of the ADA is the
company that retains the vendor services still required to select all individual vendors
including those individuals with disabilities fairly and so in their capacity as public
accommodations with the with whether it's a state or federal or local government
subject to the non-discrimination provisions of Title III or Title II of the ADA. That's a lot
of stuff. So walk us through.

Bobby: [00:16:49] Yes. See that is a really, really important question particularly if
those in the audience are in human resources because oftentimes if you say
independent contractors civil rights attaches don't apply. End of story, but that is not
the end of this story. And before I get into the specifics of the ADA titles to Title II let
me start by kind of framing this issue in terms of the current pending cases against
Uber because this really explains from a policy perspective what it is we're talking
about.
Bobby: [00:17:35] Now, you all may recognize that what Uber is doing is they're
arguing that the drivers are not employees and thus Uber is not an employer and
therefore complaints by drivers should not be treated as allegations of employment
discrimination whether it's Title VI: race gender or national origin or Title One of ADA,
disability discrimination. Instead Uber’s theory is that the drivers just like the
passengers our customers and they're paying for access to the web based platform.
Thus, if Uber convinces the court that it isn't in the taxi or driving business at all, but
instead is merely creating an online marketplace through its web based platform. Then
the result should be that the driver may stake their claims as customers requiring fair
access to the marketplace. In other words companies can't have it both ways.
If an individual vendor is not an employee and rather the individual vendor is a
customer, they should be entitled to equal opportunity as public accommodations
under Title III of the ADA. Now, recently several circuit courts of appeals around the
country and for those lawyers in the audience the 5th
, 9th
, and 10th Circuit have
interpreted a law comparable to the ADA called Section 5 4 of the Rehab Act which is
nondiscrimination by recipients of federal aid. And they dealt with this exact issue and
they said under 504 there is no employer employee relationship in the given situation.
Therefore, Title one of the ADA doesn't apply, but they didn't stop there yhey said that
the entities are independent contractors and they are subject to other provisions of the
504 as programs or activities of the entities.
So, when we look at the structure of 504 and the ACA we see this comparability. In fact
Title 1 is based on 504. We see Title 1 is employment, but we also see that the ACA
has title to state and local government Title III public accommodations and in my
opinion it may well be that companies who are seeking workers in the gig economy

may be considered public accommodations because they are customers like Uber
says. That's what Uber said in their argument. They are customers also and we'll see,
but I think a very strong argument could be made.
And if they are considered independent contractors in the gig economy that means
that they need to treat all of the vendors in a non-discriminatory way. They cannot
contract or make arrangements with somebody else like those having the marketplace.
The web based platform they cannot contract with them if the effect is to deny equal
effective and meaningful opportunity to people with disabilities.
Jessica: [00:21:56] This is all a lot to take in because this fundamentally changes the
way that maybe we as business owners or business people are H.R. recruiters or who
ever use these web based platforms. So do you think that these platforms have a
responsibility to designing market places that ensure all parties including vendors and
those with disabilities have access to the digital freelance marketplace. It sounds like
you do but I just want to make sure.
Bobby: [00:22:24] Sure it could be under different theory under Title I of the ADA
employment discrimination. It not only covers employers but also includes employment
agencies and an employment agency is is defined as an agency that regularly procures
employees for at least one employer. Now, typically these web based platforms
probably won't be considered employment agencies, but I don't want to dismiss that
as never because they may again based on the facts and the factors that I described
earlier.
Let’s assume they're not an employment agency. They're an independent contractor.
Now, the Department of Justice, and I don't know about 200 settlement agreements
have decided that web-based online systems and mobile apps and other forms of
information and communication technology must be accessible to and usable by
people with disabilities. That's under Title III and a member of the settlement
agreement or with entities that only do business online.
Jessica: [00:24:03] So you mentioned the employee employer relationship exists and
discrimination including enter into contracts or other arrangements with these third

parties could have a discriminatory effect example entering into an arrangement when
an entity that establishes a marketplace via a web based platform that discriminates
someone on the base of their disability. How can employers or companies tell if these
companies and these web based platforms are compliant?
Bobby: [00:24:31] Well, I don’t know how they can tell for sure, but if I were them I
would be entering into indemnification agreements which are part of the contract which
says that there's a certification that they're web-based platform is accessible to and
usable by people with disabilities. And I would say in accordance with what is called
WeCAG 2.0, web content accessibility guidance which are international standards
which have now been included in all of those 200 settlement agreements that I made
reference to and are also included in Section 508 of the Rehab Act which requires
accessibility of ICT by federal agencies. So the answer to your question is if I am a
company contracting with an entity to secure the work of gig workers I would be
including an indemnification clause.
Jessica: [00:25:44] Bobby thank you so much for joining us today. Where can people
learn more about you and what you do.
Bobby: [00:25:51] Well I would probably refer them to the PEAT Web site which I'm
sure you have information on. I've done a lot of work for them dealing with accessibility
of Web sites online systems mobile apps etc. from an employment perspective.
And just one last comment if I could Jessica, I just again want to make it clear that I
believe that these web-based platforms, they must also be accessible independent of
the employer or the independent contractor who contract or uses those platforms.
Now there is a little controversy in that there were a number of circuits again for the
lawyers the 1st
, 2nd
, 5th
, and 7th Circuit say you don't have to have a physical store.
Other circuits say that if you have a web-base part of your business there has to be a
nexus to the actual physical store. So there is some disagreement there as to when
these entities like those web-based platforms in the gig economy are subject to Title III
of the ADA.

Jessica: [00:27:20] Well one thing's for certain. This is a moving target with a lot of
information in different pieces so we will be sure to check back in with you to see
where we are maybe here in 6 months or so.
Bobby: [00:27:35] That's a great idea. All right well thank you so much again. I enjoyed
having you on the podcast.
Jessica: [00:27:40] Okay, wonderful thank you.
Jessica: [00:27:43] As the workplace changes so should our obligation as employers
and clients to freelance and gig economy workers. We need to be mindful of that just
because the employment relationship may have changed. Our legal obligation has
likely not universal design and inclusion is critical for employees freelancers and good
workers too. Sounds like it might be time to add civil rights training to your leadership
training as well as your own H.R. development learnings. Thank you for joining the
work Algy podcast a podcast for the disruptive workplace leader who's tired of the
status quo. This is just Miller or. Until next time you can visit Workology.com to listen
to all our previous pocket's episodes. Have a great day.
Episode Link: http://workolo.gy/ep123-wp

Workology Podcast Ep 123: Universal Design for the Gig Economy

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Workology Podcast Ep 123: Universal Design for the Gig Economy