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King County Judge Allows Lawsuit Over Gig Worker Hazard Pay to Move Forward

Seattle enacted extra pay for drivers delivery food and groceries last June, but Instacart filed legal action to reverse the rule

An iPhone displays the delivery app Instacart with its carrot icon
Instacart filed a joint lawsuit with the Washington Food Industry Association against Seattle’s hazard pay law for gig workers.

On Friday, March 26, a King County Superior Court judge allowed a lawsuit to proceed against the city of Seattle over gig worker hazard pay. The lawsuit was filed by Instacart and the Washington Food Industry Association (WFIA) last June after the Seattle city council voted to pass legislation that would help drivers for food delivery apps receive extra money during the COVID-19 pandemic.

As part of the gig worker hazard pay legislation, drivers for third-party services such as Postmates, Uber Eats, and Grubhub are eligible to get an extra $2.50 per order for as long as the city’s civil emergency lasts. The mandate also prohibits apps from passing the added cost onto customers or changing existing compensation for their drivers. When the Seattle bill was signed into law, Instacart and Washington’s grocery industry group immediately pushed back with legal action.

The lawsuit alleges that Seattle’s ordinance violates the constitutional rights of companies by intruding into their business decisions and rewriting contracts with gig workers. In addition, Instacart and WFIA argue that, since the hazard pay doesn’t apply to drivers transporting passengers in their vehicles, the rule infringes on the U.S. Constitution’s equal protection clause. The plaintiffs also claim that Seattle’s rule goes against a Washington law that prohibits local government from imposing extra taxes or charges on groceries. While the King County judge dismissed the latter argument, he allowed the lawsuit to proceed based on the other charges.

“Friday’s ruling was a significant win for independent grocers and employers like Instacart who continue to provide safe shopping environments for their customers and their employees,” president and CEO of WFIA Tammie Hetrick said in a statement.

To this point, Seattle’s efforts at instituting hazard pay during the pandemic have held up in court. On March 18, a federal judge struck down a lawsuit filed by Pacific Northwest food industry groups challenging Seattle’s hazard pay law for grocery workers. Potential appeals aside, the current $4-per-hour pay boost to employees at larger supermarket chains, such as QFC, Whole Foods, and Safeway, will stand as long as the city’s COVID-related emergency is in effect. Meanwhile, the Seattle Office of Labor Standards announced last fall that delivery companies DoorDash and Postmates doled out more than $350,000 in restitution to drivers after Seattle’s hazard pay mandate went into effect.

Now that the gig worker hazard pay lawsuit is allowed to proceed, there could be a larger fight looming. Recently, the labor advocacy organization Working Washington has stepped up pressure on state lawmakers to raise pay and provide more flexibility for gig workers, calling for a $15 minimum pay floor for every hour work, ensuring tips on top of that pay (not as a substitute), and greater transparency from companies to provide a detailed breakdown of jobs.

Besides the hazard pay law, Seattle passed an ordinance last fall that aligned compensation for Uber and Lyft drivers with the city’s $16.39 per hour minimum wage. But if lawsuits from third-party apps and industry groups find more success, the momentum to address gig worker compensation and protections through any further legislation will likely face added complications.

“I remain interested in ensuring that gig worker protections are considered and debated by the city of Seattle beyond the current civil emergency,” says city council president Lorena González. “Seattle is a city dedicated to ensuring we are a place where business and workers can thrive together and this must mean addressing the working conditions of our gig workers providing a crucial service in food access and more.”