Trump's Gig Economy

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

The United States Department of Labor (DOL) published an opinion letter that would seem to exempt most so-called “gig economy” companies from federal wage and hour enforcement.

Gig Workers Without a Safety Net

How the Platform Economy Is Reshaping Workers’ Compensation Claims

Amazon's Misclassification Strips Workers' Safety Net

When a back injury should mean temporary disability benefits, but instead means choosing between rent and recovery—that's the hidden cost of worker misclassification. New Jersey's recent lawsuit against Amazon exposes how labeling employees as independent contractors strips away critical workers' compensation protections, leaving injured workers financially vulnerable during their most precarious moments.

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Invisible Wounds, Visible Costs

The ILO’s 2026 SafeDay Report and What It Means for Workers’ Compensation

Coverage Without Employment

How states are severing injury benefits from employee status, and what that means for claims. Updating and superseding "Reshaping Workers' Compensation for the Sharing Economy" (July 29, 2015)

In July 2015, this blog argued that the sharing economy was the single most dramatic force reshaping workers' compensation, and that a generational faith in "trust" would determine where social insurance went next. Eleven years later, the prediction about disruption holds up. The mechanism does not. Trust did not reorganize the safety net. Worker classification did, and then legislatures went around classification altogether.

The platform economy is no longer a forecast. Uber, Lyft, DoorDash, Instacart, and Amazon Flex move passengers and goods in every state, and their workers are hurt every day. What has changed since 2015 is not whether those injuries occur. It is whether anyone is legally obligated to pay for them and, if so, under which body of law.

For claims professionals, the practical development of the last three years is this: a growing number of states now deliver injury-related benefits to platform workers without declaring them employees. Coverage and employment status, joined at the hip since 1911, are coming apart.

1. The Question Behind Every Platform Claim

Every gig-economy compensation file still opens on the same threshold question: employee or independent contractor? The answer controls jurisdiction, medical authorization, temporary and permanent disability, dependency benefits, and the exclusive-remedy bar. Platforms have answered "contractor" from the beginning, which, absent a statute to the contrary, means no compensation obligation at all.

States have not converged on a single test. Three tests dominate:

• The ABC test, adopted for California wage orders in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and for New Jersey wage claims in Hargrove v. Sleepy's, LLC, 220 N.J. 289 (2015). It presumes employment and puts the burden on the hiring entity.
• The economic-reality test, used under the FLSA and applied to Uber drivers in Razak v. Uber Technologies, Inc., 951 F.3d 137 (3d Cir. 2020), vacated summary judgment for Uber and returned the fact-bound control questions to the district court.
• Control and common-law agency tests, still the rule in most Southern and Midwestern states. 

Where the ABC test governs, platforms lose more often than they win. New Jersey's Supreme Court tightened Prong C in East Bay Drywall, LLC v. Department of Labor & Workforce Development, 251 N.J. 477 (2022), holding that a worker who joins the ranks of the unemployed when the engagement ends is not independently established. New York reached the same destination by a different route in Matter of Vega v. Postmates Inc., 35 N.Y.3d 131 (2020), finding a courier an employee for unemployment purposes based on the platform's control over pay, customer contact, and the ability to cut a courier off. Pennsylvania's Supreme Court did the same for a rideshare driver in Lowman v. Unemployment Compensation Board of Review, 235 A.3d 278 (Pa. 2020).

None of those cases is a workers' compensation decision. That is precisely the point. Compensation practitioners are litigating classification on borrowed authority, and the borrowing runs both ways.

2. California Closed the Constitutional Door

The most consequential development for our field came from California, and it went against injured workers. Proposition 22, approved in November 2020, classified app-based drivers as independent contractors, thereby removing them from the state's compensation system. Plaintiffs argued the initiative was void because Article XIV, Section 4 of the California Constitution vests the Legislature with plenary power to create a complete system of workers' compensation, and the voters cannot legislate that power away.

In Castellanos v. State of California, 16 Cal. 5th 588 (2024), the California Supreme Court unanimously rejected that argument. The Legislature's authority over workers' compensation is plenary, the court held, but not exclusive; the electorate may act through the initiative power. Proposition 22 stands.

The claimed consequence is significant and underappreciated. The constitutional argument that a legislature cannot carve out a class of workers from the compensation system, long assumed to be a backstop, failed in the state with the strongest constitutional language on the point. Practitioners should not plan around it.

3. Washington Opened a Third Lane

Washington took the opposite approach and produced the most important structural innovation in this area. Engrossed Substitute House Bill 2076, effective January 1, 2023, codifies transportation network company drivers as independent contractors and simultaneously requires transportation network companies [TNCs] to carry workers' compensation coverage for them through the Department of Labor and Industries.

The mechanics matter:

• Coverage attaches only during dispatch platform time and passenger platform time. A driver injured with the app off is not a covered worker.

• Labor and Industry [L&I] assesses TNC premiums by multiplying covered hours by the rate established for taxicab companies.

• The statute expressly provides that application of the workers' compensation statutes is not evidence of, and is not a factor in determining, an employment relationship for any other right or obligation.

• Food and goods delivery drivers are excluded. Only passenger service is covered.

•  Beginning July 1, 2026, TNCs face new data-aggregation and itemized-receipt requirements, which will make covered-time proof materially easier for claimants.

This is a genuine third lane: statutory occupational injury coverage with no employment relationship attached. It gives an injured driver medical and wage-replacement benefits; it gives the platform premium certainty and an exclusive-remedy shield; and it gives the state a funded pool instead of an uninsured-employer problem. Expect it to be copied.

4. Portable Benefits Are Not Workers' Compensation

The competing model is moving faster. Utah enacted the first voluntary portable-benefits framework in 2023. Tennessee's Voluntary Portable Benefit Plan Act was signed April 3, 2025, and Alabama's Portable Benefits Act, Senate Bill 86, followed on April 10, 2025, to be codified at Ala. Code section 25-1-70. Idaho, West Virginia, and Wyoming have since enacted frameworks of their own, and Georgia's House passed House Bill 987 in February 2026. Bills were introduced in 2026 in Connecticut, Florida, Hawaii, Kansas, Kentucky, Louisiana, Mississippi, New Hampshire, and Rhode Island. Federal safe-harbor legislation is pending.

Every one of these statutes shares the same architecture. Contributions are voluntary. The account belongs to the worker and is shared across platforms. Most important for our purposes, the statutes provide that a hiring party's contribution may not be used as evidence of employment status.

That last clause deserves careful reading. Portable benefits accounts may fund health coverage, income-replacement or disability insurance, life insurance, and retirement savings. They do not create a workers' compensation entitlement. An injured platform worker with a funded account may receive some wage replacement while having no right to authorized medical treatment, no permanency award, no dependency benefits, and no forum in which to litigate causation. From the platform's side, there is also no exclusive-remedy bar, meaning a driver injured through the platform's negligence retains a civil action.

The statutory language insulating contributions from the classification analysis also cuts directly against Prong A control arguments in ABC-test jurisdictions. Claimants' counsel in New Jersey should anticipate seeing that language cited by carriers.

5. The Federal Test Keeps Moving, and Matters Less

The federal standard has been rewritten three times in six years. The 2021 rule weighted two core factors, control and opportunity for profit or loss. The January 2024 rule replaced it with a six-factor totality-of-the-circumstances analysis that leaned toward employee status. In May 2025, Field Assistance Bulletin 2025-1 instructed investigators to stop applying the 2024 rule. On February 26, 2026, the Department of Labor published a Notice of Proposed Rulemaking to rescind the 2024 rule outright and restore the two-core-factor economic-reality analysis, with the comment period closing April 28, 2026. Until a final rule issues, the 2024 rule remains technically operative and largely unenforced.

Two cautions for compensation practice. First, none of this controls a state workers' compensation claim. The FLSA test governs wage and hour liability, not coverage under a state act, and states applying the ABC test are unaffected. Second, after Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which overruled Chevron deference, whichever rule survives will receive less judicial weight than either administration expected. Courts will decide classification questions for themselves. The regulatory seesaw is loud, and it is increasingly beside the point.

6. New Jersey: The ABC Test Under Pressure

New Jersey applies the ABC test and enforces it aggressively. Platform drivers routinely fail Prong B, because carrying passengers is the usual course of a rideshare company's business, and Prong C, because a driver working through a single app is not an independently established trade.

The regulatory picture is unsettled. The Department of Labor and Workforce Development proposed regulations in May 2025 codifying and tightening each prong, and expressly providing that a 1099, a contractor agreement, or a business registration is not by itself sufficient to establish independent contractor status. The Legislature introduced Assembly Concurrent Resolution 177 in December 2025 asserting that the Department exceeded its authority, and Governor Mikie Sherrill imposed a 90-day pause on the proposed rules by executive order on January 22, 2026.

Two fixed points remain regardless of how that fight resolves. First, an employer found to have misclassified faces liability under N.J.S.A. 34:15-79 for failing to secure compensation, along with retroactive premium exposure and stop-work authority. New Jersey's maximum weekly benefit rose to $1,199 effective January 1, 2026, which raises the arithmetic on every reclassified file. Second, following the New Jersey Supreme Court's decision in Lopez v. Marmic LLC(March 19, 2026), immigration status is not a defense to the obligation to pay for work performed. A significant share of the platform workforce is undocumented, and that population's claims are protected once the classification test is satisfied.

7. What This Means for Claims

• Ask which lane the claim is in before analyzing the merits. Employee claim, statutory third-lane coverage as in Washington, portable-benefits account, or nothing. The four produce entirely different benefit structures and different defenses.

• Plead classification in the alternative. A platform contract labeling the worker a contractor is the start of the analysis, not the end. Preserve the misclassification theory alongside any third-party action.

• Build the record on algorithmic control. App-based dispatch, mandated routing, real-time performance scoring, and deactivation authority are Prong A evidence. Preserve the data early, because platforms do not retain it indefinitely.

• Check for a portable-benefits account, then check what it actually pays. Income replacement is not medical benefits, and no portable-benefits statute creates an exclusive-remedy bar.

• Track covered-time definitions in third-lane states. Under Washington's model, app status at the moment of injury is dispositive. The July 2026 receipt and data requirements will help prove it.

• Price retroactive exposure. For carriers and risk managers, a reclassification finding reaches backward. Unpaid premium, uninsured claims, and statutory penalties compound quickly at 2026 benefit levels.

Conclusion

In 2015, the sharing economy was a looming disruption, and the open question was whether workers' compensation could absorb it. In 2026, the question has been answered, though not in the way anyone expected. The system is not absorbing platform work. It is being routed around by a ballot initiative in California, by a statutory carve-out with a coverage mandate in Washington, and by voluntary accounting in a dozen states that have written the classification question out of the analysis entirely.

The 2015 post was right that a generational shift would force the issue. It was wrong that trust would be the currency. The currency is coverage, and for the first time in a century it is being sold separately from the employment relationship. Practitioners who still analyze these files as a binary, employee or not, will miss where the benefits actually are.

Sources

1.  Reshaping Workers' Compensation for the Sharing Economy, Workers' Compensation (July 29, 2015).

2.  Gig Workers Without a Safety Net, Workers' Compensation (Apr. 8, 2026).

3.  Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018) (CourtListener).

4.  Hargrove v. Sleepy's, LLC, 220 N.J. 289 (2015) (CourtListener).

5.  Razak v. Uber Technologies, Inc., 951 F.3d 137 (3d Cir. 2020) (CourtListener).

6.  Matter of Vega v. Postmates Inc., 35 N.Y.3d 131 (2020) (CourtListener).

7.  Lowman v. Unemployment Compensation Board of Review, 235 A.3d 278 (Pa. 2020) (CourtListener).

8.  East Bay Drywall, LLC v. Department of Labor & Workforce Development, 251 N.J. 477 (2022) (CourtListener).

9.  Castellanos v. State of California, 16 Cal. 5th 588 (2024) (CourtListener).

10. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (CourtListener).

11. Sergio Lopez v. Marmic LLC, A-27-24 (N.J. Mar. 19, 2026); full opinion (PDF).

12. Wash. Dep't of Labor & Indus., Transportation Network Company Drivers' Rights.

13. Wash. Dep't of Labor & Indus., TNC Workers' Compensation Driver Fact Sheet (PDF).

14. Wash. Legislature, House Bill Report, ESHB 2076 (As Passed Legislature) (PDF).

15. U.S. Dep't of Labor, Wage & Hour Div., Notice of Proposed Rulemaking: Employee or Independent Contractor Status, RIN 1235-AA46 (Feb. 26, 2026).

16. U.S. Small Bus. Admin., Office of Advocacy, DOL Proposes New Independent Contractor Rule (Mar. 3, 2026).

17. Jackson Lewis, DOL's Proposed 2026 Independent Contractor Rule: What Employers Need to Know.

18. Phelps Dunbar, Alabama Enacts Law that Establishes Portable Benefits for Independent Contractors.

19. Georgetown Ctr. for Retirement Initiatives, Portable Benefits and the Future of Retirement Access for Independent Workers (Mar. 2026).

20. Staffing Industry Analysts, Legislators Push for Portable Benefits.

21. Cal. Dep't of Indus. Relations, Labor Commissioner's Wage Theft Lawsuits Against Uber & Lyft.

Recommended Citation

Gelman, Jon L., Coverage Without Employment, WORKERS' COMPENSATION, workers-compensation.blogspot.com (Aug. 11, 2026), https://workers-compensation.blogspot.com/2026/08/coverage-without-employment.html.

 About the Author

Jon L. Gelman of Wayne, NJ, is the author of NJ Workers' Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers' Compensation Law (West-Thomson-Reuters).

Blog: Workers' Compensation

LinkedIn: JonGelman

LinkedIn Group: Injured Workers Law & Advocacy Group

Author: "Workers' Compensation Law" West-Thomson-Reuters

Blue Sky: jongelman@bsky.social

Substack: https://jongelman.substack.com/

© 2026 Jon L Gelman. All rights reserved.

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"In 2008, Andrew Sullivan lost his job as a sales and customer service supervisor for a telecommunications company and decided to take a temporary seasonal gig as a driver for UPS because he couldn’t find work in his field....." read more

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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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