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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

#51

Post by pkaye »

greglindahl wrote: post #13
derekp7 wrote: post #3

Does this affect "contract to hire" positions, where companies "try before you buy"? Further, can companies still get contractors through a contractor agency, assuming the workers are employees of that agency?

This does sound like it would affect "try before you buy", unless the contractor has significant other work. Does anyone actually do "try before you buy" in California? It doesn't work in a hot job market, and the job market is currently hot.

Most people are hired under terms of "at will employment" anyway.

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

#52

Post by ajross »

ddingus wrote: post #31
jMyles wrote: post #9

Earlier quoted context omitted.

I'm not sure this is a very good read, especially in the startup scene. I have been in a position (for which I'm super grateful) in which young startups didn't have the funds to pay me my full-time rate, and so instead chose to pay me a weekly rate to work one week out of the month. I like to believe that I provided substantial value in that configuration - usually landing to review code, mentor newer programmers, an…

Honestly, yours is a GREAT read. That's a very solid case for contractors and almost nobody will have a meaningful problem with it. I've done similar things in the CAD / data management space. A person with outside perspective, rare skills, experience, and most importantly, is the outside voice able to bring real options to the table along with production proven, time tested ways and means, is worth every penny. The…

> A person with outside perspective, rare skills, experience, and most importantly, is the outside voice able to bring real options to the table along with production proven, time tested ways and means, is worth every penny.

Such a contractor would likely meet the new "ABC" standard in the linked article, though. Those aren't the positions that are in danger of being eliminated, it's the "grunt contractor" folks who are contractors only because the employer wants to keep a buffer of positions that are active but can be terminated easily.

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

#53

Post by mark212 »

knuththetruth wrote: post #49
CamperBob2 wrote: post #46

Earlier quoted context omitted.

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.

Yeah exactly. This is a question of state law and the Cal SC is the final word on what state law means. The only exception is if the USSC agrees that the state law violates some provision of the US Constitution and that’s extremely rare. Not going to happen.

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

#54

Post by hardwaresofton »

CamperBob2 wrote: post #46
hardwaresofton wrote: post #34

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.

I should have posted this earlier, but buried in the bloomberg is the decision:

https://www.bloomberglaw.com/public/desktop/document/Hargrov...

I honestly am not 100% sure of the ramifications, but I am sure that these companies are going to act in their best interest, and with the current imbalance in the labor market (some might argue that the markets are right where they should be), I'm relatively certain that will mean employees being turned into contractors, or worst case they'll take the walmart route and make everyone work "part-time", drivers will think they're pulling a fast one by working for more than one company but they'll really just be driving their own wages and benefits down.

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

#55

Post by mark212 »

CamperBob2 wrote: post #46
hardwaresofton wrote: post #34

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.

Judicial overreach? Someone has to interpret the law. The original standard was judge-created and the refined over several decades. It was a mess and gave conflicting results in quite similar cases. This, no matter what you think of the outcome, is unquestionably a giant leap forward in clarity.

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

#57

Post by jMyles »

ajross wrote: post #52
ddingus wrote: post #31

Earlier quoted context omitted.

Honestly, yours is a GREAT read. That's a very solid case for contractors and almost nobody will have a meaningful problem with it. I've done similar things in the CAD / data management space. A person with outside perspective, rare skills, experience, and most importantly, is the outside voice able to bring real options to the table along with production proven, time tested ways and means, is worth every penny. The…

> A person with outside perspective, rare skills, experience, and most importantly, is the outside voice able to bring real options to the table along with production proven, time tested ways and means, is worth every penny. Such a contractor would likely meet the new "ABC" standard in the linked article, though. Those aren't the positions that are in danger of being eliminated, it's the "grunt contractor" folks who…

Yeah?

I think that, taken literally, I'd be 0/3 in the ABC system.

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

#58

Post by jMyles »

lazzlazzlazz wrote: post #45
taurath wrote: 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.

> The contractors who stand out get selected for full-time work relatively quickly and consistently.

...but many of us pass on full-time offers nearly constantly. It's not like contractors are just waiting for the day when they are "selected."

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

#59

Post by mark212 »

SilasX wrote: post #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 alc…

Transaction costs for one. It sounds like an incredible mess to actually implement. And why shift that burden to the customer? In a haircut scenario, the person getting the cut is unquestionably a customer and not an employer. So why make him/her shoulder the administrative and legal burden?

Think beyond wage and hour. Customer #2 gets cut by scissors, suffering serious bodily injury. Who does she sue? The barber, sure. But these actions were performed during the course and scope of employment. So now (per 400+ years of common law) the employer — aka previous customer - is now on the hook for those damages.

I’d certainly never get my hair cut there. It might cost me $100,000.

Ok so change that law, but now you’re ditching a few centuries of agency law and getting exactly what in return? A system no more efficient than what it’s replacing.

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

#60

Post by SilasX »

mark212 wrote: post #59
SilasX wrote: post #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 alc…

Transaction costs for one. It sounds like an incredible mess to actually implement. And why shift that burden to the customer? In a haircut scenario, the person getting the cut is unquestionably a customer and not an employer. So why make him/her shoulder the administrative and legal burden? Think beyond wage and hour. Customer #2 gets cut by scissors, suffering serious bodily injury. Who does she sue? The barber, su…

>And why shift that burden to the customer? In a haircut scenario, the person getting the cut is unquestionably a customer and not an employer

That's exactly the reasoning I said doesn't work. You can't just say that a situation is "absurd". Why is it absurd? What's the standard so you can derive the boundaries?

>Customer #2 gets cut by scissors, suffering serious bodily injury. Who does she sue? The barber, sure. But these actions were performed during the course and scope of employment. So now (per 400+ years of common law) the employer — aka previous customer - is now on the hook for those damages.

No, Customer #2 would be a second employer.

>Ok so change that law, but now you’re ditching a few centuries of agency law and getting exactly what in return? A system no more efficient than what it’s replacing.

I don't know what that's responding to. I wasn't ditching anything. I was asking for what grounds the distinction.

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