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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

#61

Post by PhasmaFelis »

volkfish55 wrote: post #18
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…

Contractor are paid more, since they have to factor in the health insurance, taxes, unpaid vacation, perks, their own laptops, no need for office space, no 401k match. There is no reason they would ever get paid less. Maybe those with H1B visas who can get taken advantage of or outsourced contractors in Ukraine? Those contractors definitely get paid a fraction of US salary.

I think you're using a very overspecific definition of "contractor". At least half of my contract work has been doing the same job in the same office as the full-time employees, just for less pay and less job security. (And I did get health insurance, through the contracting agency.) A couple of those gigs even came with a company laptop.

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

#62

Post by Animats »

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…

I have yet to see someone propose a (satisfying) standard/desideratum to ground the employee/contractor distinction in law.

Read the actual decision.[1] The discussion of this issue starts at page 62. The Court discusses why there should be a distinction, and why it needs to be less ambiguous than the "multifactor test".

[1] http://src.bna.com/ypI

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

#63

Post by siruncledrew »

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.…

Could someone please provide examples for A and C? I understand B, but I don't fully understand A and C.

For A, does that only mean working hours (i.e. can't make someone work 11am-7pm EST)? Does that affect scheduling milestones or tasks to be completed?

For C, what does 'independently established role' mean? Like job title?

Thanks in advance.

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

#64

Post by dragonwriter »

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.

> Sounds like massive judicial overreach to me. If your summary is accurate, I wouldn't expect that particular guideline to survive appeal.

It's a California state law issue and this is a decision of the California Supreme Court upholding the decision of the Court of Appeals, which had upheld the Superior Court. This has already survived the whole chain of appeals.

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

#65

Post by SilasX »

Animats wrote: post #62
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…

I have yet to see someone propose a (satisfying) standard/desideratum to ground the employee/contractor distinction in law. Read the actual decision.[1] The discussion of this issue starts at page 62. The Court discusses why there should be a distinction, and why it needs to be less ambiguous than the "multifactor test". [1] http://src.bna.com/ypI

The stuff on page 62+ only explains why a quick, unambiguous test for how to classify is a good thing. I don’t think anyone was disputing that, and my comment certainly wasn’t.

The closest it comes to addressing my points is when it talks of “evading wage and hour” laws. But that’s my point: Why do you count it as “evading” anything when you buy labor from someone who offers it as a freelancer, and that rate is under the minimum? What desideratum does that violate? Why do you let anyone offer services, at all, in any capacity (including as a business) when they might earn less than minimum wage, or even negative amounts?

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

#67

Post by twblalock »

hardwaresofton wrote: post #54
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.

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 wil…

Of course companies are going to act in their best interest. But this ruling does not change that, because companies have been acting in their best interest all along.

If anything, this makes it easier for contractors to prove they ought to be employees.

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

#69

Post by dragonwriter »

netheril96 wrote: post #7
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…

Do companies whose primary employees are programmers also employ contractual programmers? According to my observation, computer technology companies may have contractual workers, but only for other roles.

> Do companies whose primary employees are programmers also employ contractual programmers?

Yes, e.g., firms whose main line of business is contracting out employees who are programmers hire programmers as subcontractors in addition to regular employees to round out special skills needed in contracts.

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

#70

Post by bdcravens »

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 a 1099 developer who is required to participate in daily standups will likely qualify as an employee I presume?
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