PRINTER'S NO. 1239
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
949
Session of
2021
INTRODUCED BY ROBINSON, STREET, BARTOLOTTA, COLLETT, FONTANA,
PITTMAN, COSTA, MUTH, REGAN, BREWSTER, LAUGHLIN AND YUDICHAK,
NOVEMBER 22, 2021
REFERRED TO LABOR AND INDUSTRY, NOVEMBER 22, 2021
AN ACT
Establishing the Portable Benefits for App-Based Workers Fund
within the Treasury Department and the Portable Benefits Fund
Board within the Pennsylvania Public Utility Commission.
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Findings and declarations.
Section 103. Definitions.
Chapter 3. Portable Benefits for App-Based Workers Fund
Section 301. Establishment and operations of fund.
Section 302. Membership of fund.
Section 303. Initial registration and fee.
Section 304. Quarterly contributions.
Section 305. Operation of fund.
Section 306. Occupational accident insurance.
Section 5. Portable Benefits Fund Board
Section 501. Establishment of board.
Section 502. Directors of board.
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Section 503. Operations of board.
Section 504. Portable benefits delivery.
Section 505. Financial accounting of fund.
Chapter 7. Miscellaneous Provisions
Section 701. App-based worker status.
Section 702. Severability.
Section 703. Statewide uniformity.
Section 704. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the App-Based
Workers Benefits and Protections Act.
Section 102. Findings and declarations.
The General Assembly finds and declares as follows:
(1) App-based workers who are drivers or couriers are
providing essential services to their communities.
(2) App-based workers who are drivers or couriers retain
full control over where, when and how they perform app-based
services or work and are therefore classified as independent
contractors.
(3) Independent contractors may not be entitled to some
of the protections of an employee. To protect all of our
Pennsylvania workers:
(i) A portable benefits fund for app-based workers
should be established to enable the provision of income
replacement, health and wellness and other benefits to
workers by multiple platforms.
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(ii) A separate occupational accident insurance
requirement for network companies to purchase should be
established.
Section 103. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"App-based worker." An individual who is a DNC courier or
TNC driver or provides services through a network company's
online-enabled application or platform if the network company:
(1) does not unilaterally prescribe specific dates,
times of day or a minimum number of hours during which the
app-based worker must be logged into the network company's
online-enabled application or platform;
(2) does not terminate the contract of the app-based
worker for not accepting any specific request for covered
services;
(3) does not restrict the app-based worker from
performing services through other network companies except
while performing services through the network company's
online-enabled platform; and
(4) does not restrict the app-based worker from working
in any other lawful occupation or business.
"Board." The Portable Benefits Fund Board.
"Commission." The Pennsylvania Public Utility Commission.
"Covered services." As follows:
(1) Work performed by an app-based worker from when an
app-based worker accepts a rideshare, delivery or other
request generated by a network company to when the app-based
worker completes that request.
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(2) The term does not include services performed using a
commercial motor vehicle as defined in 49 CFR 390.5 (relating
to definitions).
"Customer." One or more individuals or business entities.
"Delivery network company" or "DNC." A business entity that
maintains an online-enabled application or platform used to
facilitate delivery services within this Commonwealth.
"Delivery network company courier" or "DNC courier." An
individual who provides delivery services through a DNC's
online-enabled application or platform.
"Delivery services." As follows:
(1) The fulfillment of a delivery request constituting
the pickup of an item from one location and the delivery of
the item to another location that is selected by the customer
and located within 50 miles of the pickup location, by
walking or using a passenger vehicle, bicycle, scooter,
public transportation or other similar means of
transportation.
(2) The term may include the selection, collection or
purchase of an item by a DNC courier, if the selection,
collection or purchase is done in connection with a delivery
that the DNC courier has agreed to make.
"Fund." The Portable Benefits for App-Based Workers Fund.
"Network company." A DNC or TNC.
"Transportation network company" or "TNC." As defined in 53
Pa.C.S. § 57A01 (relating to definitions).
"Transportation network company driver" or "TNC driver." As
defined in 53 Pa.C.S. § 57A01.
"Worker earnings." As follows:
(1) All net earnings received by a DNC courier or TNC
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driver for covered services beginning in this Commonwealth.
(2) The term includes incentives and bonuses.
(3) The term does not include network company fees,
gratuities, tolls, cleaning fees, venue fees or other
customer pass-through charges or costs.
CHAPTER 3
PORTABLE BENEFITS FOR APP-BASED
WORKERS FUND
Section 301. Establishment and operations of fund.
(a) Establishment.--The Portable Benefits for App-Based
Workers Fund is established as a separate fund in the Treasury
Department.
(b) Administration.--The fund shall be administered by the
board:
(1) for the purpose of providing benefits to app-based
workers; and
(2) without liability on the part of the Commonwealth or
directors or the board.
(c) Custodian and disbursements.--
(1) The State Treasurer shall be the custodian of the
fund.
(2) All disbursements from the fund shall be paid at the
request of the board.
(3) For making payments without audit, the State
Treasurer shall not be under any liability.
Section 302. Membership of fund.
The membership of the fund shall be composed of all the
delivery network companies and transportation network companies
operating within this Commonwealth.
Section 303. Initial registration and fee.
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(a) General requirements.--Each network company shall:
(1) submit a completed registration form to the
commission, in the form and manner designated by the
commission; and
(2) pay the commission, as a condition of doing business
within this Commonwealth, an initial fee of $20,000.
(b) Purpose.--A submitted registration form and initial fee
under subsection (a) shall serve to register a network company
as a member of the fund. The commission shall provide a
certificate of registration for the network company to that
effect.
(c) Existing network companies.--Within 90 days of the
effective date of this subsection, a network company that is
operating on the effective date of this subsection shall submit
to the commission a registration form and initial fee as
specified under subsection (a).
Section 304. Quarterly contributions.
(a) Amount.--Each DNC and TNC member of the fund shall make
a quarterly contribution into the fund in an amount equal to 2%
of the annual worker earnings earned through the DNC's or TNC's
platform for trips or deliveries that originated in this
Commonwealth during the quarter. The quarterly contribution
shall be paid on a schedule prescribed by the commission.
(b) Use.--Quarterly contributions collected in accordance
with this act shall be applied to the costs associated with the
administration of the fund and the benefits described in section
504.
(c) Initial contribution.--The initial contribution under
this section shall be assessed for the full calendar quarter in
which this section takes effect and shall be due within seven
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days of the effective date of this section.
Section 305. Operation of fund.
(a) Plan of operation.--Within 120 days of the effective
date of this subsection, the board shall file with the
commission a plan of operation, which shall be designed to
assure the fair, reasonable and equitable administration of the
fund. The following apply:
(1) The plan of operation and any subsequent amendments
to the plan of operation shall become effective upon filing
with the commission.
(2) The board shall provide to its members a copy of the
plan of operation filed with the commission and shall inform
its members of their rights and duties under this act.
(b) Bylaws.--The plan of operation as described in
subsection (a) shall constitute the bylaws of the fund and
shall, in addition to the requirements enumerated elsewhere in
this act:
(1) Establish a single account and the pooling and
administering of the contributions to the fund described in
section 304.
(2) Establish the account procedures for collecting and
managing the assets of the account.
(3) Establish regular places and times for meetings of
the fund's board of directors.
(4) Establish the procedure by which the fund shall
determine the benefits to be provided.
(5) Establish accounting and recordkeeping procedures
for all financial transactions of the fund, its agents and
the board of directors.
(6) Establish procedures for determining and collecting
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the appropriate amount of contributions under this act.
(7) Specify the procedures by which the fund may
exercise the audit rights granted to it under this act.
(8) Contain additional provisions as the board may deem
necessary or proper for the execution of the powers and
duties of the fund.
Section 306. Occupational accident insurance.
(a) Purchase of insurance.--Within 240 days of the effective
date of this subsection, each network company shall purchase
occupational accident insurance. Blanket accident and sickness
insurance, as specified in section 621.3(a) of the act of May
17, 1921 (P.L.682, No.284), known as The Insurance Company Law
of 1921, is hereby declared to be that form of accident and
sickness insurance covering groups of persons under a policy
issued to network companies under this section, for all app-
based workers who provide covered services through their
networks.
(b) Holder of insurance.--No later than 30 days after the
commencement of a new policy year, each network company shall
file with the commission a copy of the policy that it has
purchased for DNC couriers and TNC drivers, respectively. The
following apply:
(1) The commission shall be treated as a certificate
holder for purposes of receiving notice of cancellation or
nonrenewal of the policy.
(2) The policy shall be filed with the commission by the
network company at least 30 days prior to the effective date
of the cancellation or nonrenewal of the policy.
(c) Insurance necessary to operate business.--On or after
the date that is 240 days after the effective date of this
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subsection, a network company may not operate in this
Commonwealth unless the network company carries, provides or
otherwise makes available occupational accident insurance to
cover medical expenses and lost income resulting from injuries
suffered while the app-based worker engaged on the network
company's online-enabled application or platform.
(d) Minimum coverage requirements.--An occupational accident
insurance policy shall, at a minimum, provide the following
regarding an app-based worker:
(1) Coverage for medical expenses incurred, for at least
$250,000 and 104 weeks following the injury.
(2) Continuous total disability payments and temporary
total disability payments in an amount equal to 66% of the
app-based worker's average weekly earnings from all network
companies as of the date of injury, with minimum and maximum
weekly payment amounts to be determined in accordance with
sections 105.1 and 105.2 of the act of June 2, 1915 (P.L.736,
No.338), known as the Workers' Compensation Act, for up to
the first 104 weeks following the injury. For purposes of
this paragraph, the term "average weekly earnings" means the
app-based worker's total worker earnings from all network
companies during the 28 days prior to the covered accident
divided by four.
(3) For the benefit of spouses, children or other
dependents of the app-based worker, accidental death
insurance in an amount equal to 66% of the app-based worker's
average weekly worker earnings from all network companies as
of the date of injury, with minimum and maximum weekly
payment amounts to be determined in accordance with sections
105.1 and 105.2 of the Workers' Compensation Act, multiplied
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by 104 weeks for injuries suffered by the app-based worker
while the app-based worker is engaged on the network
company's online-enabled application or platform that result
in death. For purposes of this paragraph, an app-based worker
is engaged on a network company's platform from when the app-
based worker accepts a rideshare request or delivery request
to when the app-based worker completes that rideshare request
or delivery request.
(e) Multiple insurance policies.--If an accident is covered
by occupational accident insurance maintained by more than one
network company, the insurer of the network company against whom
a claim is filed is entitled to contribution for the pro rata
share of coverage attributable to one or more other network
companies up to the coverages and limits specified in this
section.
(f) Benefits.--Benefits provided to an app-based worker
under this section shall be considered amounts payable under a
worker's compensation law or disability benefit for the purpose
of determining amounts payable under insurance provided under 75
Pa.C.S. Ch. 17 Subch. C (relating to uninsured and underinsured
motorist coverage).
(g) Exemption.--Notwithstanding any other provision of law,
any provision of this act shall be exempted from the Workers'
Compensation Act.
CHAPTER 5
PORTABLE BENEFITS FUND BOARD
Section 501. Establishment of board.
The Portable Benefits Fund Board is established within the
commission.
Section 502. Directors of board.
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The board shall consist of the following directors:
(1) Three members of the DNC and TNC industries
appointed by the Governor. The following apply:
(i) At least one member shall represent the DNC
industry.
(ii) At least one member shall represent the TNC
industry.
(iii) The members may not be from the same business
entity.
(2) An individual appointed by the President pro tempore
of the Senate.
(3) An individual appointed by the Speaker of the House
of Representatives.
(4) An individual appointed by the Minority Leader of
the Senate.
(5) An individual appointed by the Minority Leader of
the House of Representatives.
Section 503. Operations of board.
(a) Compensation and expenses.--Directors of the board shall
serve without compensation but may be reimbursed for their
expenses from the fund.
(b) Transacting business.--The affirmative vote of a
majority of the directors of the board shall be necessary to
transact business and shall constitute a quorum.
(c) Chairperson and vice chairperson.--The directors of the
board shall annually elect a chairperson and vice chairperson of
the board. The vice chairperson shall serve as chairperson in
the absence of the chairperson.
(d) Terms.--
(1) The term of each director of the board shall be
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three years.
(2) At the expiration of a director's term, the director
may be reappointed for an additional term or a new director
may be appointed for the subsequent term, in the same manner
as the original appointment.
(3) An individual may not serve for more than three
successive terms.
(e) Delegation.--The board may delegate to one or more of
its directors, officers, agents or employees such powers and
duties as it deems proper.
Section 504. Portable benefits delivery.
(a) Establishment of delivery of benefits.--Within 240 days
of the effective date of this subsection, the board shall
establish a system for the delivery of portable benefits for
qualifying DNC couriers and TNC drivers who provide services
through the fund's members from their respective accounts as
described in section 305(b).
(b) Qualifying events.--The portable benefits provided shall
include an income replacement benefit to be made available to
app-based workers upon qualifying events. The following apply:
(1) The board shall determine what constitutes a
qualifying event.
(2) The board shall issue standards for DNC couriers and
TNC drivers respectively, specifying:
(i) How an app-based worker's eligibility for the
income replacement benefits shall be determined.
(ii) How the amount of the benefit shall be
determined.
(iii) The duration for which workers will receive
the benefit for each qualifying event.
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(c) Additional benefits.--The fund may provide additional
portable benefits that the board determines to be in the
interest of app-based workers and within the financial capacity
of the fund given its current assets and expected contributions.
The following apply:
(1) The provisions of additional portable benefits may
take into account:
(i) The different needs of DNC couriers and TNC
drivers, if any.
(ii) The number of hours that an app-based worker
provides covered services through the fund's member
companies over a set period of time.
(iii) The duration of the app-based worker's
relationship with the fund's member companies.
(2) If the board determines that data relating to
activity such as the amount of covered services performed is
required for the provision of additional benefits, the board
may enter into agreements with member companies governing the
provision of data.
(d) Benefits study.--Within the first year of operation of
the fund, the board shall be required to study the need for
health and wellness benefits under this section and submit a
report to the following:
(1) The Governor.
(2) The President pro tempore of the Senate.
(3) The Speaker of the House of Representatives.
Section 505. Financial accounting of fund.
(a) Preparation of statements.--The board shall prepare
financial statements on an annual basis, in accordance with
generally accepted accounting principles and the accounting
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standards issued by the Governmental Accounting Standards Board.
(b) Access to DNC and TNC member records.--To the extent
necessary for the calculation of the required fund
contributions, the DNC and TNC members of the fund shall provide
the board and agents of the board access to books, records and
other documents necessary to calculate and verify the amounts of
the required fund contributions.
CHAPTER 7
MISCELLANEOUS PROVISIONS
Section 701. App-based worker status.
(a) Discrimination prohibited.--It shall be unlawful for a
network company, unless based upon a bona fide occupation
qualification or public or worker safety need, to refuse to
contract with, terminate the contract of or deactivate from the
network company's online-enabled application or platform, any
app-based worker based upon age, race, creed, color, national
origin, sexual orientation, gender identity or expression,
military status, sex, disability, predisposing genetic
characteristics, familial status, marital status or status as a
victim of domestic violence.
(b) Independent contractor.--Notwithstanding any other
provision of law, including specifically the act of June 2, 1915
(P.L.736, No.338), known as the Workers' Compensation Act, the
act of December 5, 1936 (2nd Sp.Sess., 1937 P.L.2897, No.1),
known as the Unemployment Compensation Law, and the act of
January 17, 1968 (P.L.11, No.5), known as The Minimum Wage Act
of 1968, and any orders, regulations or opinions, an app-based
worker shall be deemed an independent contractor and not an
employee or agent, whether actual, apparent or otherwise, with
respect to the app-based worker's relationship with a network
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company if the following conditions are met:
(1) The network company does not unilaterally prescribe
specific dates, times of day or a minimum number of hours
during which the app-based worker must be logged into the
network company's online-enabled application or platform.
(2) The network company does not terminate the contract
of the app-based worker for not accepting any specific
request for covered services.
(3) The network company does not restrict the app-based
worker from performing covered services through other network
companies except while performing services through the
network company.
(4) The network company does not restrict the app-based
worker from working in any other lawful occupation or
business.
Section 702. Severability.
(a) General rule.--Except as provided in subsection (b), the
provisions of this act are severable. If any provision of this
act or its application to any person or circumstance is held
invalid, the invalidity shall not affect other provisions or
applications of this act which can be given effect without the
invalid provision or application.
(b) Exception.--Notwithstanding subsection (a), if section
701 of this act is for any reason held to be invalid by a
decision of any court of competent jurisdiction, that decision
shall apply to the entirety of the remaining provisions of this
act, and no provision of this act shall be deemed valid or given
force of law.
Section 703. Statewide uniformity.
A provision of a local law or ordinance, or a rule or
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regulation promulgated on or after the enactment of this act,
which governs the relationship between a network company and an
app-based worker shall upon the effective date of this act be
preempted.
Section 704. Effective date.
This act shall take effect in 30 days.
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