Transcript
Jeremy Abay: A lot of people over the years have said to me, “Why do these people, if the job’s that bad, keep going back to it?”
For many of them, it’s their only source of income. And what I now understand is it’s the children, the family at home, that sustain those people. I just want them to know that there’s somebody out there who’s fighting for them. There’s not a lot of us, but there are a few.
Katie Frey: Welcome to Law Meets Life, presented by Pond Lehocky, where conversations go beyond the courtroom and into the people, experiences, and moments that define who we are.
I’m your host, Katie Frey, and today’s guest is Pond Lehocky attorney Jeremy Abay.
Jeremy, thank you so much for being here today.
Jeremy Abay: Thanks for having me.
Katie Frey: Absolutely. We just spoke briefly about how excited I am to have you here today because, when I joined the firm six months ago now, someone told me about the work that you do and the fact that you are a pioneer in your field. I thought that was incredible, and I could not wait to have you as a guest on the podcast. So, I’m very excited for this conversation.
Jeremy Abay: Thank you.
Katie Frey: Before we get into Uber, Lyft, and the gig economy, I want people to understand who you are. Where did you grow up, and what was little Jeremy like before ever becoming a lawyer?
Jeremy Abay: I grew up in New Jersey. What I was like as a kid depends on who you ask. I recall being a quiet kid.
I had some very influential people in my life—my parents, my grandparents. My father is a Cuban immigrant. My grandfather as well. They came here shortly after Castro.
I grew up in that immigrant family with that mentality of working hard, being quiet, getting your work done, excelling in school, et cetera. It’s a story that I think people are familiar with now.
I had no lawyers in my family.
Katie Frey: Really?
Jeremy Abay: Yeah, no lawyers. I wasn’t even sure if I wanted to be a lawyer. I kind of fell into it.
I thought I wanted to be an investment banker. I went to school for that and had an internship on Wall Street. I absolutely hated it.
I came home, and my dad said, “Now what? You don’t want to do that? What do you want to do?”
And I said, “Well, maybe I’ll give law a shot.”
Fortunately for me, my dad was pretty smart, and he said, “That’s not something you attempt. You have to really want to do it.”
He had a client that was a law firm, and he asked them if I could go intern for them for a summer. That was a gap year between college and law school. I was lucky that I absolutely fell in love with it.
I worked at that firm, and I felt like I had been looking for a calling my entire life. And there it was. This is what I wanted to do.
Katie Frey: That’s amazing.
And the immigrant story now transitions into an area of law that I feel impacts so many immigrants. Did you know this was what you wanted to do? What’s the story there? How did you get into this specific area of law?
Jeremy Abay: I knew I wanted to be working for the David in the David-versus-Goliath story.
The immigrant workers that I now represent are, in many ways, a byproduct of being in the gig economy. Many gig workers are immigrant workers.
I hear the same story that I heard from my grandfather, which was: You come to this country, you work hard, you keep your head down, and good things will happen. Opportunities will come your way.
Pretty early on in my work in the gig economy, I learned that’s not true. People were being sold a false bill of goods.
That really resonated with me, and I’ve stuck with it now for over 10 years. I’m still trying to fix the problem with the gig economy that I’m sure we’re going to talk about later.
Katie Frey: Absolutely.
Before practicing law, you worked at places like Johnson & Johnson and Barclays. What did working inside large corporations teach you? Was there a moment when you realized you wanted to be on the side of representing workers?
Jeremy Abay: What did I learn working for companies? Well, there’s a general lack of humanity, certainly on Wall Street.
I can’t talk too much about it, but I worked in what was called the back of the house, where people were treated as metrics and workers were evaluated based solely on performance.
I understand companies have to make money, but I did see some ugly things on the backside. That left a bad taste in my mouth. It was after that internship that I said, “This is not for me.”
I wanted to do something that helps people, not judges people solely based on how much money they made.
Katie Frey: Wow.
You’ve been working on gig worker issues, like you said, for more than a decade—before most people were even talking about the gig economy. What initially caught your attention?
Jeremy Abay: I get that question a lot, and my answer usually invokes a laugh: exotic dancers.
Katie Frey: Yeah?
Jeremy Abay: I like to tell my students in law school that exotic dancers are the original gig workers.
There’s a whole body of precedent about exotic dancers actually being employees under federal law. When I started looking into companies like Uber, Lyft, and some of the early gig companies, I noticed a lot of similar issues: lack of control, lack of ability to negotiate prices, things like that.
In my head, it kept adding up that these rideshare drivers were a lot like the exotic dancers. And I thought, under federal law, they should be employees.
Katie Frey: Wow.
I read that some of your earliest conversations with Uber Black drivers happened in the waiting lot at the Philadelphia airport. Take me back there. How did you end up talking with these drivers, and what were they telling you?
Jeremy Abay: Before I filed the lawsuit against Uber, I started my investigation.
Anytime you’re going to sue an up-and-coming, popular company like that, you want to make sure you have all the facts.
One of my tactics is to figure out: Where is the water cooler? Where are the employees congregating? Where are they sharing stories, tips, and frustrations?
Early on in the process, I quickly identified that as the airport waiting lot.
This is where the drivers would sit in what Uber called the airport queue, waiting for fares. There were often dozens, sometimes hundreds, of them in this particular parking lot.
After they got to know me a little bit, they were always very willing to share their stories, particularly their frustrations with the app.
Katie Frey: That is wild to me. That’s like investigative journalism on another level.
I went to school for journalism, so hearing that, I’m like, that’s exactly where my mind would have gone: find the water cooler.
Was there one conversation or one driver’s story where you thought, “Something is not right here”? Or was it a collection of stories where you realized there was a common thread that needed to be resolved?
Jeremy Abay: A bit of both.
First, it was what I saw in these airport waiting lots. I saw some things that you only read about in legal textbooks about how dire the working conditions were.
Katie Frey: Oh, wow.
Jeremy Abay: Drivers urinating in bottles.
I would build up a little bit of courage and go over to a driver and say, “Why are you doing that? There’s a Wawa five minutes down the road or a Chick-fil-A.”
And the person would say, “I can’t leave this parking lot. There’s a geofence around it. If I leave the lot, I exit the airport queue. And if I exit the airport queue, I’m going to have to wait another hour or two hours to get a fare.”
So, there were those little anecdotes that I picked up on.
I also remember one specific driver who was a recent immigrant. He was a cab driver. Many of the early Uber drivers were originally taxi cab drivers. Uber had convinced cab drivers to drive for its platform.
Some of that was based on: “Look, you’re going to get a fancy black car. It’s going to be more luxurious. You’ll wear a suit. You’ll be traveling farther.”
If you’re new to this country, that sounds pretty great.
But those drivers had no credit. They had no savings. They had very little income.
I asked him, “How were you able to afford this brand-new GMC Yukon?”
He said, “I asked that same question to Uber. How do you expect me to buy an Escalade or Yukon?”
Uber said, “It’s no problem. Go to this specific dealer in the city. You’ll deal with our preferred financing partner. We’ll get you a car, and your finance payments will come right out of your Uber pay.”
As it turns out, I got a copy of that loan agreement, and they were charging this particular individual 30%. I actually think it was more than that.
Your average finance loan for a car, I think, is about 13%. I’m not quite sure, but this was about triple that.
The other thing the person said that struck me was, “The finance payments come right out of my Uber pay.”
So I said, “What happens if you don’t work for Uber?”
He said, “Well, I go into debt.”
“Wait. You mean you go into debt with the finance company?”
“No. I go into debt with Uber. My account goes in the red.”
It clicked that, for many of these drivers, the only way to stay in the black—because they were never really profiting—was to work as much as humanly possible.
Katie Frey: My goodness.
Jeremy Abay: This driver called me a week later and told me another story.
He had gotten his dream fare from Philadelphia International Airport to Boston—a five-hour fare. That’s the kind of fare that can make a driver’s entire week and pay off the weekly bills.
He takes the fare, picks up the customer, and heads up to Boston.
Five hours later, he arrives in Boston and starts refreshing the app, waiting to see what his portion of the fare is going to be—what his pay is.
He refreshes it. Nothing comes up.
He figures it will come eventually. He turns around, and now he has a five-hour drive home.
He stops for gas. He’s refreshing. Still nothing.
He gets home. He refreshes again. Still nothing.
Eventually, he contacts Uber support, and they tell him, “Your account’s been deactivated.”
He says, “Why?”
“Someone has accused you of being intoxicated while driving.”
Katie Frey: Are you kidding?
Jeremy Abay: Now he’s thinking, “I’ve just been in the car for five hours with one customer. It must be that customer.”
What I subsequently discovered was that there are people out there who have learned how to game the Uber system.
If you lodge a complaint like that against a driver, they don’t charge you for the fare.
Katie Frey: Oh, no.
Jeremy Abay: And they don’t pay the driver.
There’s no recourse for the driver. There’s no HR. There are no collective bargaining rights. There’s no dispute process.
You’re deactivated. You’re done.
That driver lost everything in one fare. I think within a year, that driver was bankrupt.
Katie Frey: Oh my God.
Jeremy Abay: I remember that driver saying to me that Uber sold him the American dream. Like I said before, it was a false bill of goods. It turned into a nightmare for him.
Katie Frey: I can’t even imagine.
And these are the stories that you hear every single day?
Jeremy Abay: Every day. And, frankly, it gets worse.
That’s one person’s story, but that’s one of many.
I just read the other day that Uber drivers, Lyft drivers, Instacart workers—they are now the top recipients of food stamps, and they’re the third-highest enrollment in Medicaid, which is for low-income persons.
What I am hoping people now realize is that, whether or not you even use these apps, we’re all subsidizing these companies.
Katie Frey: Yeah.
Jeremy Abay: When taxes come out of your paycheck, some of that’s going to pay for these drivers who end up on welfare.
There is a greater cost here that I don’t think the general public understands.
Katie Frey: One hundred percent.
Jeremy, how do you personally hold all of those stories and still wake up every single day? I say that in the most loving way possible because that’s a heavy, heavy, heavy weight.
How do you keep carrying that and turn it into fuel? Because you haven’t stopped fighting for over a decade.
Jeremy Abay: There are two Jeremys.
There’s Jeremy at work, at the law firm, who’s grinding for the clients every day and carrying that weight on his shoulders. By no stretch of the imagination is it any more weight than each individual gig worker is carrying.
But then there’s also Jeremy when I get home—the dad, the husband. I try to leave that baggage at the door as much as possible.
Katie Frey: You have a four-year-old, is that correct?
Jeremy Abay: I do.
Katie Frey: What have you learned from being a dad that has changed who Jeremy is in both situations?
Jeremy Abay: The stakes are higher when you’re a parent.
I’m not talking about my individual situation. I’m talking about all the rideshare drivers out there—the individuals working 12-hour shifts or 18 hours a day.
I now realize: Why do they do it? Why do they keep going back?
If they have families and children, that’s why.
A lot of people over the years have said to me, “Why do these people, if the job’s that bad, keep going back to it?”
For many of them, it’s their only source of income. And like I said before, there’s this debt trap where the only way out of it is by working more and more hours.
What I now understand is it’s the children. It’s the family at home that sustains those people.
I just want them to know that there’s somebody out there who’s fighting for them. There’s not a lot of us, but there are a few.
Katie Frey: Wow.
Now, for someone who doesn’t practice employment law, why does it matter whether someone is classified as an employee or an independent contractor? What can a worker potentially lose because of that distinction?
Jeremy Abay: All of the workplace rights that we enjoy at Pond Lehocky disappear with that one label of “independent contractor.”
Things that you may not even know you’re entitled to—like workers’ compensation, unemployment benefits, Social Security Disability, health insurance—all of those things disappear if a company labels you as an independent contractor.
Regardless of whether or not it’s true, they simply disappear.
Katie Frey: Regardless of whether that’s true, what, by definition, would make it true that you are employed by that company?
Jeremy Abay: It depends on whether you’re asking about federal law or state law because, currently, we have a patchwork of laws in this country as to whether someone is an employee or an independent contractor.
Frankly, it is a mess.
Let me give you an example.
In Pennsylvania, there was a case that involved an Uber driver, and the Pennsylvania Supreme Court said that, for purposes of unemployment, you are an employee. You’re entitled to unemployment benefits.
But currently, it’s unclear whether that same driver is entitled to minimum wages.
Katie Frey: Wow.
Jeremy Abay: Think about that for a second.
You may not be entitled to wages while you were actually working as an Uber driver, but once the work disappears, you might be entitled to unemployment.
It just makes absolutely no sense.
I am waiting and hoping that somebody in Harrisburg wakes up and tries to fix this problem.
Katie Frey: This is so frustrating.
As someone who very clearly does not practice law but works with you and hears these stories, is there anything that we, as the general public, can do to move the needle here?
Once all of these facts are presented, there’s no way some of these things should be legal. It’s so confusing on a federal and state level, and the fact that it’s a patchwork of laws that aren’t keeping human beings in mind at the end of the day—is there anything the general public can do to help?
Jeremy Abay: I think it’s important to educate as many people as possible.
Currently, I don’t think people have a good understanding of how much this is costing the country.
Like I said before, rideshare drivers now top the list of food stamp recipients. They’re in the top three for Medicaid enrollment.
Everyone in this country is subsidizing the gig economy, and not many people know that.
The other issue is this: Employees pay into Social Security. As our labor force shifts toward this gig model, this independent-contractor model, there’s less money going into the Social Security trust funds.
I think this is a ticking time bomb that no one is talking about.
I am concerned that when we turn 65, there’s not actually going to be Social Security for us. This is a big problem. Frankly, nobody’s talking about it.
Katie Frey: Very, very scary. Definitely worth people’s time.
As somebody who is learning alongside our listeners about the weight of the work that you are doing, it’s something that needs to be talked about and something that needs to be spotlighted, for sure.
Technology makes this especially interesting to me because your boss might not be a person anymore. It might be an app or an algorithm.
Does that make workers vulnerable in ways our laws haven’t fully caught up to yet?
Jeremy Abay: I think so.
In part, one of the reasons why the laws haven’t caught up is because of all these fancy terms like “algorithm” and these app-based workplaces.
It’s hard for our lawmakers and our judges to wrap their heads around all of this.
What I try to do is unpack the onion a little bit to show that this really isn’t very different from a normal employee-employer relationship.
You can’t walk up to the top floor and talk to your algorithm boss in the corner office, right?
But the control isn’t much different.
The algorithm—the boss—is still deciding how much to charge the customer. The algorithm in rideshare is deciding what insurance company the drivers have to pay for their insurance. The algorithm is still deciding who to assign fares to and who to assign the work to.
So, while it might be an algorithm, and I can’t cross-examine an algorithm, it still has all the hallmarks of traditional employment.
Katie Frey: Wow.
Something we talked about before we started filming, too, is that you could be standing in the exact same place at the exact same time as somebody else. You pull up the Uber app on your phone, and you could both be getting different fares.
That visibility on the driver’s side is also not there. They don’t know how much you’re paying, but they’re getting just a fraction of that fee.
Is that something that develops into your specific area of law? Is that something you bring up when you’re fighting these cases?
Jeremy Abay: Yeah. I refer to that as information asymmetry.
That’s a fancy way of saying the boss can see behind the scenes, see behind the curtain, see how the sausage is made, but the employees are just told to execute.
Again, that is a hallmark of a normal employer-employee relationship that we also see in the gig economy.
Katie Frey: Like we said before, you spent years actually talking directly to drivers. Who are the people doing this work? What do you think the average person doesn’t understand about what it’s truly like to make a living through these platforms?
Jeremy Abay: Let me tell you who is not doing this work.
It’s not the side-hustle college kids looking to make a little bit of beer money.
In my experience, the vast majority of gig workers are immigrant workers who are looking for a steady source of income and simply can’t find other work.
Katie Frey: We’ll be back with more Law Meets Life after a quick message from our sponsor.
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Katie Frey: We’re back now with Pond Lehocky attorney Jeremy Abay.
Have you had clients who genuinely had no idea that they might have rights that they weren’t receiving because they’ve been told for so long that they’re independent contractors?
Jeremy Abay: Yeah. This is a big problem. It’s also another education problem.
We often have to deprogram our clients.
Katie Frey: Wow.
Jeremy Abay: Because they are fed this label of “independent contractor” constantly.
When we were in litigation with Uber, we got all this discovery about what we called “Uber talk.”
Uber would train its customer support people, its internal staff, management, et cetera, on what not to say and what to say when dealing with drivers.
Katie Frey: Oh, wow.
Jeremy Abay: One example sticks out in my head.
It was forbidden to ever tell a driver that they were “fired” because, when people think, “I’ve been fired,” they think of an employer-employee relationship.
Instead, they were told to say, “You’ve been deactivated,” or, “Your account has been suspended.”
There was a lot of effort behind the scenes at all of these gig companies to program the workers into thinking they don’t have rights, into believing this independent-contractor label.
Katie Frey: It’s such an inhumane way of talking to another human being: “You’ve been deactivated.” Almost like you’re a robot that just feeds up into a system greater than thou.
That is wild to me, that they trained the psychology of these people.
Jeremy Abay: Yeah.
That’s one side of the equation. The other side is the fancy PR campaigns that these companies engage in.
The “be your own boss” slogan—which, when I hear it, turns my stomach.
No one is their own boss at these gig companies.
Katie Frey: “Independent contractor” sounds cool. Like, “I’m independent. I’m doing my own contract work.”
But at the end of the day, it’s like, “I’m not getting health insurance. I’m not getting the same rights.”
Jeremy Abay: You’re not your own boss. You can’t set prices. You can’t decide when you’re going to work.
This is important because most folks who have not worked for these companies think they provide flexibility—that you can work when you want.
That’s always the advocacy line I hear from the PR firms representing these companies: “Work when you want. Flexible hours.”
I want to be clear: There’s a distinction between being able to log into an app when you want and actually getting the work.
Not all of the time spent on the app is compensable. You’re only getting paid when there’s a customer in your car or groceries in your trunk to deliver.
The gig companies don’t pay for time purely logged into the app. That’s idle time. We dispute that.
So, yes, you can log in when you want, but it doesn’t mean you’re going to get to work.
The gig company decides when you’re going to work, what trips you’re going to get, and what groceries you’re going to deliver.
Katie Frey: What happens, then, if someone who relies on this app to support their family suddenly gets hurt or gets sick or gets deactivated and can’t earn any more income?
Jeremy Abay: This is where it’s very important to talk to a lawyer.
Working for these companies is like walking a tightrope with no safety net.
One misstep, one accident, and you have no income. You have no insurance. You have no workers’ comp benefits coming in. You have no safety net.
Often, again, it falls on the taxpayers to fill that gap—to fund the food stamps, the Medicaid, the welfare payments.
Katie Frey: Wow. So basically, Uber is expecting perfection from these drivers.
Jeremy Abay: I don’t know what Uber is expecting.
All I can tell you is what I know they’re expecting: to be able to operate with impunity.
We were talking earlier about the state of the law being in flux. That’s not an accident. That’s by design.
These companies thrive in the gray area of the law.
They don’t want the law to be amended. They don’t want the law to be clearer.
In fact, in states like my home state, New Jersey, where the law has developed and become much clearer, these companies threaten to leave.
Katie Frey: Are you kidding?
Jeremy Abay: No.
New York City, for example, has passed a lot of laws targeted at the gig economy to help workers and what they thought would also help the companies by providing clarity.
As it turns out, the companies don’t want clarity.
They want all of this to be legally ambiguous. That’s how they thrive and grow.
Katie Frey: Which state would you say has the most forward-thinking gig worker laws?
Jeremy Abay: For a long time, that was California.
Then Uber put close to a billion dollars into a lobbying effort that everyone calls Prop 22, which was supposed to be this grand bargain where drivers would stay independent contractors, but they would get minimum wage and some sort of appeals process for when they were deactivated.
What I have come to learn is that, while drivers have indeed remained independent contractors in California, the gig companies aren’t living up to their half of the bargain.
Drivers are still making less than the minimum wage, and they are still being deactivated without being afforded any hearing or appellate rights.
Katie Frey: How’s that legal?
Jeremy Abay: It’s not.
The problem is, every time someone in government stands up to these companies, their opponent in the next race is funded by Uber, Lyft, and all these other companies.
Lawmakers have lost the courage to stand up to these companies.
Katie Frey: Wow. This makes me want to go to California and run for something.
Jeremy Abay: I wish more people would. But honestly, the fight should start here in Pennsylvania.
Again, we have a patchwork of laws that make absolutely no sense, and no one in Harrisburg is doing anything about it.
Katie Frey: You had a case that ultimately became the first wage-and-hour case against a major gig-economy platform to reach a federal jury.
Did you understand at the time how significant what you were doing would become?
Jeremy Abay: I would like to say no, but the truth is I did—and I have the gray hair to prove it.
In part, because at every turn I would look to prior cases and past precedent, and there was simply no playbook for this.
There’s one thing I want people to understand about why it was the first federal jury trial.
Again, that’s another thing by design.
Anytime someone wants to work for one of these companies, they have to agree to something called arbitration.
That’s a private court forum that’s confidential. It’s adjudicated by, typically, a retired judge or even private attorneys.
It’s not our open court system that people think of when they sue.
These companies have been steering claims into this behind-closed-doors system for years.
Through some legal maneuvering in my case against Uber, we were able to stay out of arbitration.
So, I knew I had an opportunity to take the case the distance, where others had been forced into arbitration.
Katie Frey: There’s also this incredible moment where you noticed a window that allowed drivers to opt out of Uber’s arbitration provision.
What happened, and why was that so important?
Jeremy Abay: Early on in our process, while I was gathering information to launch the case, I was also tracking a lawsuit out in California that was ahead of the one I was about to bring.
In that case, there was a ruling that said, in order for Uber’s arbitration pact with drivers to be enforceable, Uber had to give drivers an opportunity to opt out of it—the ability to bring your claims in open court as opposed to this private forum.
Within a week, Uber had updated its terms of service with drivers to give them a 90-day window to opt out of arbitration.
When I saw that, I ran around the city for 90 days.
Katie Frey: Are you kidding?
Jeremy Abay: I tried convincing as many Uber drivers as I could to sign a letter saying, “I opt out of Uber’s arbitration program.”
I think, ultimately, we got about 250 to opt out.
Katie Frey: Amazing.
Jeremy Abay: We were able to use that opt-out procedure to avoid having to go to arbitration.
As we were litigating that case, I knew it was going to be a case of first impression all the way along because all the other cases had been kicked to arbitration at that point.
Katie Frey: Was there ever a moment where you had a thought of self-doubt or fear? Or did you turn all of those conversations and all of the people who were depending on you into pure drive?
Jeremy Abay: I want to say I was completely fearless, but I want young lawyers to know that it’s the fear, the self-doubt, and the anxiety that give you your edge.
Use it as a tool.
Of course, I was going against some of the best lawyers in the country, who had unlimited litigation funds.
We were doing something no one else had ever done before.
Katie Frey: Like we said before, you’ve been fighting this battle for years.
What keeps you going, especially knowing that the outcome could potentially affect far more people than just the client sitting in front of you?
Jeremy Abay: First and foremost, it’s the client.
It’s also knowing that no one else is taking on this work. No one else is trying to fix it right now.
Certainly not at the federal level. Not really at the state level.
There’s a handful of state attorneys general that are now tackling this problem, and they’re doing good work.
Then there’s a very small handful of plaintiffs’ lawyers filling in the rest of the gap.
It is a sizable gap.
I don’t think I can stop until I know that someone else has picked up the torch, so to speak. And I don’t see anyone coming.
Katie Frey: I just keep wondering: What can we do? How can we find somebody to take that torch?
What do you think deters people from pursuing this specific area of law?
Jeremy Abay: Arbitration is a big one.
There’s the prospect for a lawyer of not having some big payday. These cases in arbitration have to be litigated individually, which means there’s no gigantic class action with some gigantic payday coming at the end.
That takes probably about 90% of the plaintiffs’ bar off the field.
Not here.
I’m lucky enough that I work with people who understand the importance of this work and who want to provide holistic legal help to workers.
Right now, this firm is, as far as I know, one of the only firms pushing the envelope of workers’ comp by bringing workers’ comp cases against gig companies and saying gig workers are entitled to workers’ comp benefits under the law.
The Pennsylvania Supreme Court has addressed unemployment, but it has yet to address the standard under the Workers’ Compensation Act.
That is one thing I’m hoping to do here: bring a case all the way up to the Pennsylvania Supreme Court to set a new standard.
Katie Frey: You and I know the gig economy is not going away.
If anything, there are more industries, like you said, that are moving toward this type of work.
What concerns you most about where we’re headed?
Jeremy Abay: With every new gig company, we lose a union.
These independent contractors have no collective bargaining rights, which means their wages can be suppressed. Their frustrations can be silenced.
I am worried there are not enough people paying attention to this issue, and it’s creating this gigantic wealth gap in our country.
I’m worried our legislature is not keeping up with it.
The problem just keeps compounding because, if you let Uber go, Uber’s competitors are going to start reclassifying everyone as independent contractors.
Walmart now is classifying the Spark drivers as independent contractors because it can’t keep up with Amazon.
Katie Frey: Really?
Jeremy Abay: FedEx is now moving to an independent-contractor model because Amazon has taken over the logistics industry.
We are in a complete race to the bottom, and it’s all at the expense of the American worker.
I don’t know how this is not a news story.
Maybe I’m not doing a good enough job telling it, but I am amazed that no one in Washington, D.C., Harrisburg, or Trenton is really taking this up and trying to come up with a solution.
Katie Frey: And now we’re adding AI to the equation.
If algorithms increasingly determine who gets work, how much they earn, how they’re evaluated, and even whether or not they get to keep their jobs, what protections do workers need most?
Jeremy Abay: This is one of the questions I get often, and I get frustrated by it because we already have laws that could work.
We just need a legislator or a judge to say these laws apply to gig workers.
One thing we see now with AI is dynamic wages—how much you’re going to make off a fare or delivery changing from person to person, trip to trip.
We have a solution for that. It’s called the Minimum Wage Act.
The states have it. The federal government has it with the Fair Labor Standards Act.
We just need someone to step in and say these laws apply to gig workers.
Katie Frey: For someone watching who drives for Uber or Lyft, delivers food, or earns money through another platform, what should they know about their rights?
What are the red flags that should make them stop and think, “Maybe I should talk to an attorney”?
Jeremy Abay: The most important thing a gig worker should know is that a label doesn’t control what the relationship is.
If a gig platform calls you an independent contractor, it doesn’t make it so.
You might still be entitled to traditional employment rights, including minimum wages, overtime, and other benefits.
You should talk to a lawyer to determine whether you are entitled to those.
As for red flags, consider things like: Who controls pricing? Do you get to negotiate a fare with a customer?
If the answer is no, then it’s likely you’re an employee, not an independent contractor.
Do you get to choose what insurance you pay into, or does the platform decide?
If the platform decides, is that really being your own boss?
If you are your own boss, shouldn’t you be able to pick which insurance company you use?
What kind of car can you drive? If the platform says your car needs to be less than five years old, does that make you your own boss?
The traditional forms of control that you see in an employer-employee relationship are the red flags that these workers should be spotting.
Katie Frey: Jeremy, another interesting thing about you is that you also represent whistleblowers.
Is there a common thread for you between the Uber driver who feels powerless against a massive platform and an employee who puts their career on the line to say, “This is wrong”?
Jeremy Abay: In a word: courage.
Having the nerve to stand up to the Goliath.
What I want people to know is that they’re not alone.
There are tens of thousands, hundreds of thousands of workers in similar situations, and there are lawyers out there who are fighting for these workers.
So, just have the courage to step forward and talk to a lawyer.
Katie Frey: Your work consistently puts you across the table from very powerful companies.
Do you like being the underdog?
Jeremy Abay: I love it.
I like punching up.
My grandfather used to have a great expression about not spitting up, but I like punching up.
When I was in youth sports, I always wanted to play in the age group above my age group. I always wanted that challenge.
Early on, I realized I wanted to spar with these big companies and the best lawyers that are out there.
Katie Frey: That’s awesome.
You also teach employment law in the gig economy at Rutgers. You’re essentially teaching an area of law that’s changing in real time.
What are your students asking about the future of work? And what do you hope they take away from your class beyond knowing the law?
Jeremy Abay: This is what excites me and gives me hope: this next generation of lawyers.
They want to be a catalyst for change.
I think back to when I graduated from law school. Some of us wanted that. A lot of us wanted to just have a nice paycheck.
But the folks who are going to law school now really care about what’s occurring.
They’re going to law school to challenge the status quo.
What they often want to learn is: How do we take on these big companies? What are the sorts of strategies, Jeremy, that you employed in your cases that we can borrow and adapt for other kinds of work?
It’s this new generation of lawyers that keeps the fight in me going.
Katie Frey: That’s awesome. Do you ever learn anything from them that you can use in real time?
Jeremy Abay: What’s fascinating now is the gig economy has been around for so long that I have students who have operated in it.
Katie Frey: Yeah. Wow.
Jeremy Abay: They’re often learning about their own rights in the middle of the classroom.
That kind of real, lived experience is invaluable when you’re trying to teach something that seems theoretical.
Katie Frey: Your professional life involves some pretty high stakes.
What gets you out of lawyer mode?
I want to know: What does a perfect Saturday look like when nobody is allowed to talk to you about Uber or employment law?
Jeremy Abay: Saturday, I’m usually in the office, so I’ll go with what makes for a good Sunday.
I get limited time with my wife, my daughter, and my family, and I try to make it count.
I don’t want to look back 50 years from now and think, “Gosh, my daughter grew up and I wasn’t there,” because I didn’t come from that kind of family.
My dad was at every soccer game. My mom, too. We had family dinners.
I want that same life for my daughter.
I think, in today’s world, we should be able to do both.
There are a lot of great tools we use here at Pond Lehocky that make it possible. Our leadership is very cognizant that we all have families.
I feel lucky to be able to do both.
Katie Frey: What are some of the things your daughter is interested in right now?
Jeremy Abay: Wow. She’s at that four-year-old point where everything interests her.
In fact, we came here a couple of weekends ago because she wanted to see my big office.
Katie Frey: Are you serious? Oh my gosh, that’s so cute. What did she think?
Jeremy Abay: She was kind of awestruck.
She’s seen my office in Haddonfield, which is a small suite, but she was taken aback by how big this place was in Philadelphia.
She’s starting to pick up on occupations and jobs, and she’s very curious about all of that.
Katie Frey: Has she said what she wants to be yet? Other than a pony, or—
Jeremy Abay: No, not yet. I support her dream to become a pony.
Katie Frey: Fair enough.
What’s something people at Pond Lehocky would be surprised to learn about you?
Jeremy Abay: I play video games to decompress.
Katie Frey: What video games?
Jeremy Abay: Right now, I am replaying Fallout 4 on Xbox.
That’s sort of how I go from work Jeremy to home Jeremy. I’ll take an hour to decompress.
Katie Frey: Oh my gosh.
What are you most proud of that has absolutely nothing to do with your career?
Jeremy Abay: That’s an easy one: my daughter.
Katie Frey: What fills you with that sense of pride?
Jeremy Abay: Just her curiosity about the world and her sort of unconditional love for everyone and everything.
Katie Frey: After all of the drivers, whistleblowers, and workers you’ve represented, what has this work taught you about people?
Has it changed your definition of fairness?
Jeremy Abay: It’s taught me that people are resilient and that most people, when given the opportunity, will stand up in the face of injustice and want to do something.
When I talk to potential clients, it doesn’t take much convincing for them to try to vindicate their rights.
It’s just letting them know that they have someone working on their behalf, that they’re not in it alone.
Katie Frey: There are more Davids out there.
Jeremy Abay: There are. There are plenty of Davids and, unfortunately, a lot of Goliaths as well.
Katie Frey: When someone finishes this episode, what’s the one thing you hope they understand about the person driving their Uber, delivering their food, or earning their living through an app?
Jeremy Abay: That they are just that: They’re a person.
And I think, as a person, they’re entitled to some basic human rights.
The minimum wage is a legal right, but in my opinion, it’s a human right as well.
It’s what separates us from the past travesties of this country.
We are now in an ambiguous legal system that is moving us backwards, not forwards.
I want people to think about that when they get into an Uber or Lyft or have their groceries delivered.
I also want them to understand that the price they see on their app is not the full price.
Again, we are all subsidizing this work for these companies.
Jeff Bezos is one of the richest men in the world, right? And we, the taxpayers, are subsidizing the Amazon labor force.
It makes absolutely no sense.
I wish people in D.C., Harrisburg, and other state capitals were doing more about it.
Katie Frey: Lastly, Jeremy, the title of our podcast is Law Meets Life.
What does that title mean to you?
Jeremy Abay: I think it provides perspective for lawyers—that our clients might be a small component of our lives, but their cases are probably the most important things occurring in their lives.
We always have to keep that perspective.
Katie Frey: So well said.
Jeremy, thank you so much for being here today.
Jeremy Abay: Thank you.
Katie Frey: And thank you all so much for watching another episode of Law Meets Life.
Until next time.
