On September 23, 2021, the New York City Council passed six bills—a first-of-its-kind legislative package directed at gig economy workers—that seeks to provide protections to the city’s food delivery workers. The bills, each of which amend the administrative code of New York City, have been sent to Mayor Bill De Blasio, who has already voiced his support for the legislation. The legislative package is the culmination of a lengthy controversy in New York City regarding the rights and protections that should be afforded to gig workers. Notably, many states, including New York, have been engaged in prolonged legal battles over the questions relating to the treatment of gig workers.

Minimum payments

Introduction (Int.) No. 2399-2021 tasks the New York City Department of Consumer and Worker Protection (DCWP) with conducting a study to determine how much delivery workers should be paid for their work. In doing so, the DCWP would be required to look at: “the methods by which such pay is determined, the total income food delivery workers earn, the expenses of such workers, the equipment required to perform their work, the hours of such workers, the average mileage of a trip, the mode of travel used by such workers, [and] the safety conditions of such workers.” The DCWP would be empowered to issue subpoenas to third-party food delivery services or third-party courier services for the production of such identifying data.

Based on the results of the study, the “DCWP will be required to promulgate rules establishing a method of determining minimum payments for delivery workers” no later than January 1, 2023. This minimum would not be permitted to include gratuities.

Standards for payment

Int. No. 2296-2021 would prohibit food delivery services from charging food delivery workers fees for using any form of payment selected by the service to pay the food delivery worker for work performed. The bills also require that food delivery workers be paid at least weekly.

Bathroom access

The New York City Council previously passed legislation requiring food delivery services to execute written agreements with the establishments listed on their platforms. Int. No. 2298-2021 would require that the agreements include a provision requiring a food service establishment to allow delivery workers to use the establishment’s bathrooms, provided the “workers are lawfully on such establishment’s premises to pick up … food or beverage for consumer delivery.”

Gratuity policies

Int. No. 1846-2020 would prohibit a food delivery service from soliciting a gratuity for a food delivery worker from a customer unless the service discloses the following information either before or at the time the gratuity is solicited:

  • the proportion or amount of the gratuity that is going to be distributed to the food delivery worker; and
  • how the gratuity is going to be distributed to the worker, including whether it will be distributed immediately, via cash, or otherwise.

Int. No. 1846-2020 also would mandate that the food service provider notify the food delivery worker how much was paid as a gratuity and notify the food delivery worker of the total amount of compensation and gratuities earned by that worker on the day after any compensation and gratuities were earned.

Distance and route limits

Int. No. 2289-2021 would require food service providers to give each food delivery worker the ability to specify the “maximum distance per trip,” and to refuse “trips over bridges or tunnels.” In doing so, the food delivery provider would be required to disclose the address and “estimated time and distance” of the trip to the food delivery worker before the worker accepts the trip.

Insulated food delivery bags

Int. No. 2288-2021 would require a food delivery service that uses bicycle couriers to provide or make available insulated food delivery bags “to any delivery worker who has completed at least six deliveries” for the service. The food delivery service would be required to cover the expenses of the bags.

Key Takeaways

While this legislative package focuses on gig workers in the food delivery industry, it is possible that New York City might set its sights on other industries in the near future. Food delivery providers, courier services, and restaurants may wish to review the above requirements to begin to ensure their practices comply with the obligations articulated in the bills. Employers may also want to stay tuned for additional updates from New York City as these bills are enacted and the over-arching impact on the gig economy continues to evolve.

Ogletree Deakins will continue to cover New York City’s gig worker legislation, in addition to other forthcoming legislative developments, on our New York blog.

Employers interested in learning more about New York State’s measures to address the impact of the COVID-19 pandemic can join us for a one-hour webinar, “Navigating New York Employment Law: Lessons Learned From the COVID-19 Pandemic and Charting the Way Forward,” on Tuesday, October 5, 2021, at 12:00 noon Eastern. Our speakers will explain the latest labor and employment law topics affecting New York employers, including vaccination policies, leave laws, and recent legislative developments, such as the New York Health and Essential Rights Act (NY HERO Act). To register for this timely program, click here.