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California Supreme Court Transforms the Test for Who Is an Employee

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Re: California Supreme Court Transforms the Test for Who Is an Employee

#41
post #2

It’s interesting how even within companies a hard set social hierarchy has taken place between employees and contractors. The contractors tend to perform the exact same duties as employees, but are usually paid less, have worse future prospects (companies tend to like to hire from full time to full time), worse benefits and generally don’t get most of the perks of being an employee. For coders, is this because they’r…

> The contractors tend to perform the exact same duties as employees, but are usually paid less, have worse future prospects ...

There was a very interesting NY Times article last fall about that issue. They contrasted janitors at Apple, who work for a contractor and have no prospects for advancement in Apple, and Xerox's janitors in the 1980s who were employees, and one of whom is now Xerox's CTO:

https://www.nytimes.com/2017/09/03/upshot/to-understand-risi...

To veer off on a tangent, I suspect it's connected with a new elitism in the U.S. What used to be the celebrated 'Land of Opportunity' where anyone could live the "American Dream' through hard work, regardless of where they started (even if very poor immigrants), is now a place where the children of the wealthy go to college, those of the working class are encouraged to go to trade school, and immigrants are more commonly discouraged.

Re: California Supreme Court Transforms the Test for Who Is an Employee

#42
post #2

It’s interesting how even within companies a hard set social hierarchy has taken place between employees and contractors. The contractors tend to perform the exact same duties as employees, but are usually paid less, have worse future prospects (companies tend to like to hire from full time to full time), worse benefits and generally don’t get most of the perks of being an employee. For coders, is this because they’r…

There are two distinct classes of contractors. - Those who aren't good enough to get a full time job. - Those who are too good to settle for a full time job. The two groups are treated quite differently.

Sounds like "casuals" vs. "contractors". Casual staff are often on very similar terms to contractors, apart from the rates of pay, but are seen as interchangeable rent-a-crowd rather than outside expertise.

Re: California Supreme Court Transforms the Test for Who Is an Employee

#45
post #2

It’s interesting how even within companies a hard set social hierarchy has taken place between employees and contractors. The contractors tend to perform the exact same duties as employees, but are usually paid less, have worse future prospects (companies tend to like to hire from full time to full time), worse benefits and generally don’t get most of the perks of being an employee. For coders, is this because they’r…

In my experience, contractors are almost without exception worse than full-time employees in terms of the quality of their work. The contractors who stand out get selected for full-time work relatively quickly and consistently.

Re: California Supreme Court Transforms the Test for Who Is an Employee

#46

Here is the new test (the ABC test if you're into unnecessary pet names for things): > If A, B, or C isn’t present, the worker is considered an employee. > A. Freedom from control over how to perform the service > B. Service is outside the business' normal variety or workplace > C. Worker is engaged in independently established role So if any one of those conditions isn't the case, you are an employee under the law.…

So if any one of those conditions isn't the case, you are an employee under the law. I see people in this thread wondering how it'll affect companies like Uber/Lyft/whatever

'B' is downright apocalyptic for contract developers in all sorts of roles. Sounds like massive judicial overreach to me. If your summary is accurate, I wouldn't expect that particular guideline to survive appeal.

Re: California Supreme Court Transforms the Test for Who Is an Employee

#47

Here is the new test (the ABC test if you're into unnecessary pet names for things): > If A, B, or C isn’t present, the worker is considered an employee. > A. Freedom from control over how to perform the service > B. Service is outside the business' normal variety or workplace > C. Worker is engaged in independently established role So if any one of those conditions isn't the case, you are an employee under the law.…

So if any one of those conditions isn't the case, you are an employee under the law. I see people in this thread wondering how it'll affect companies like Uber/Lyft/whatever 'B' is downright apocalyptic for contract developers in all sorts of roles. Sounds like massive judicial overreach to me. If your summary is accurate, I wouldn't expect that particular guideline to survive appeal.

If you are an IT company and all your work is done through contract developers, perhaps you _are_ going against the spirit of the law.

Labor law is meant to protect those in the employer employee relationship, and most contractual work explicitly weaken this relationship a lot. So contractual work really shouldn't be the norm in a business.

If you can't provide your main business without this set of people, then those people are probably your employees?

Re: California Supreme Court Transforms the Test for Who Is an Employee

#48
Sorry, rant coming. (I assure the mods this is impromptu and not copy-pasted; verify yourself.)

I don't see a lot of productive progress being made on this question. Judges constantly try to apply conflicting standards of whether someone is "really" an employee, but you can't make progress on that question until you can measurably answer why you're asking that question to begin with.

For another context, take "is alcoholism really a disease?" If we don't want to be stuck in unproductive talking-past-each-other, we have to transform that into a more concrete query, like, "are alcoholics responsive to social pressure?" or "does the urge to drink stem from a chemical imbalance?"

Those questions, you can actually -- in principle -- make progress on. Maybe you find some chemical under which alcoholics stop drinking because it doesn't appeal to them anymore. Or maybe you find that shunning changes their behavior, and the appeal to "alcoholism being a disease" maps to a specific game-theoretic strategy.

Or maybe shunning just turns out to make alcoholics miserable and resort to more expensive, covert techniques to get their fix. Or maybe the evidence is perpetually ambiguous. But at least you can make progress on those questions.

What are the corresponding criteria for the question "is this Uber driver really an employee?" How would you know you got it wrong? What are you really optimizing for when you legislate a distinction between contractor and employee?

For example, let's say you proposed a new test A, under which every purchase of labor makes someone an employer and employee. You buy a haircut? Great, you need to send this amount to this fund to pay for their unemployment insurance. And you need to give them this notice about their rights as a worker. And you need to pay into this worker's comp fund.

Or let's say you proposed a test B under which the buyer is the sole decider of how to classify, and every employer/buyer in the world elects to classify the provider/worker as an employee, and screams in glee as they offload all the liability and expenses onto the worker. By what standard, concretely, do you know you erred?

It doesn't work to say "that's absurd". What's important is to say the specific desiderata that make that situation absurd.

I have yet to see someone propose a (satisfying) standard/desideratum to ground the employee/contractor distinction in law. The closest I've seen is "we want to make sure workers don't get oppressed" (or some equivalent expression), but that doesn't suffice -- there has to be some reason you don't go with the A test above. What is that?

Re: California Supreme Court Transforms the Test for Who Is an Employee

#49

Here is the new test (the ABC test if you're into unnecessary pet names for things): > If A, B, or C isn’t present, the worker is considered an employee. > A. Freedom from control over how to perform the service > B. Service is outside the business' normal variety or workplace > C. Worker is engaged in independently established role So if any one of those conditions isn't the case, you are an employee under the law.…

So if any one of those conditions isn't the case, you are an employee under the law. I see people in this thread wondering how it'll affect companies like Uber/Lyft/whatever 'B' is downright apocalyptic for contract developers in all sorts of roles. Sounds like massive judicial overreach to me. If your summary is accurate, I wouldn't expect that particular guideline to survive appeal.

Appeal to whom? This ruling/guidance was provided by the California Supreme Court about how independent contractors are classified by the state.

Re: California Supreme Court Transforms the Test for Who Is an Employee

#50
post #2

It’s interesting how even within companies a hard set social hierarchy has taken place between employees and contractors. The contractors tend to perform the exact same duties as employees, but are usually paid less, have worse future prospects (companies tend to like to hire from full time to full time), worse benefits and generally don’t get most of the perks of being an employee. For coders, is this because they’r…

In my limited experience contractors are paid much more.
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