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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

#91

Post by icebraining »

AstralStorm wrote: post #90
icebraining wrote: post #84

Earlier quoted context omitted.

It says "... or workplace". Uber drivers don't work in Uber's buildings.

This is not quite an exclusive or. The service is not outside of business standard variety. Other cab companies have client driven matchmaking systems too now... They also employ office workers. The workplace for a cab driver is his car. Therefore, what Uber does would make them a cab company that abuses contractors instead of employing employees. However, the key point here is the test A. If Uber is specifically tel…

Considering the actual text posted by jaggederest in another comment, it does seem to be an exclusive or:

"the services provided were either outside the usual course of business or performed outside of all the places of business of the enterprise"

Regarding other cab companies, most cab drivers have been traditionally classified as contractors. The idea that Uber introduced this practice is propaganda.

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

#92

Post by kahnpro »

bdcravens wrote: post #70
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?

Not so sure about the US, but having seen how contacting developers are working in Canada and the UK, I would say that contracting devs are almost always acting as employees.

In many tech companies you can't even tell the difference between who is an employee and who is a contractor, unless you ask.

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

#93

Post by kahnpro »

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.

Honestly, most contracting developers are actually employees, and this position is just used as a way to skirt tax and labor laws. The abuse here isn't from the court, it's from devs and businesses.

Devs don't care simply because the pay is high enough and there are a ton of jobs available.

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

#94

Post by bdcravens »

jahewson wrote: post #78
bdcravens wrote: post #70

Earlier quoted context omitted.

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

I see no reason to think that.

Why? Seems to violate 2 or 3 of the ABCs.

- dictate how job performed

- dictate when performed, on a very regular basis

- oftentimes work is identical to other teams members, only difference is pay structure

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

#95

Post by AstralStorm »

SilasX wrote: post #65
Animats wrote: post #62

Earlier quoted context omitted.

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 main idea for contractors was to have them work flexible, typically shorter time in which case being paid a specific fraction of minimum wage is allegedly ok. (Not really, it is too low.)

It is being abused though to offer full time jobs for reduced pay or for tax benefits to the company.

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

#96

Post by bdcravens »

kahnpro wrote: post #92
bdcravens wrote: post #70

Earlier quoted context omitted.

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

Not so sure about the US, but having seen how contacting developers are working in Canada and the UK, I would say that contracting devs are almost always acting as employees. In many tech companies you can't even tell the difference between who is an employee and who is a contractor, unless you ask.

In every role I was a contractor, there was essentially no difference between me and employees. Even had gigs where I was in one cube over, had a company badge with my photo on it, and had an @companyname.com email.

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

#97

Post by fauigerzigerk »

apendleton wrote: post #85
rdiddly wrote: post #81

Earlier quoted context omitted.

Also the drivers aren't supplying a service "outside the business's normal variety." They're supplying the core Uber service. EDIT: They might be able to redefine themselves as purely a software company for the drivers to remain contractors.

Well, I suppose Uber would argue that their service isn't the providing if rides, but rather, the matchmaking of independent ride providers to prospective customers, and facilitation of payment. (Not that we should believe them.)

That would be difficult to reconcile with a self-driving car project (unless they didn't own or operate those cars themselves).

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

#98

Post by paulsutter »

Animats wrote: post #73
paulsutter wrote: post #44

The change seems immaterial to me except that it’s much clearer. The article author injects a social justice angle without describing any specific impact. Who is really affected by this? Any concrete examples?

The material part is that it's clearer. That means most such decisions don't require litigation. The result will be that blatant violations of the law get resolved fast.

Such as? Uber seems in the clear (I direct the driver not Uber), I cant think of any material cases where this matters

By the way, that’s really good for Uber drivers. If they had to be employees they would get paid less and couldn’t deduct many expenses

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

#99

Post by hardwaresofton »

gnicholas wrote: post #87
hardwaresofton wrote: post #83

Earlier quoted context omitted.

I agree with your assessment (you failed to mention leeway with which rides to take, but maybe it doesn't matter) -- Uber/Lyft would definitely not want to lose control on how their drivers perform their services since it's directly counter to part of their value proposition/brand. I pessimistically assume, however, is that assuming the A/B fight is a lost battle for gig economy compnaies, the next step is to limit t…

> I pessimistically assume, however, is that assuming the A/B fight is a lost battle for gig economy companies, the next step is to limit these employees to being part-time with some kind of How does 20 hrs/week factor in here? I didn't see a reference in the Bloomberg article. Though this is actually a good point — if time spent working isn't a factor, then someone who works for Uber, Lyft, Grubhub, and Google Expre…

I mentioned that since hours worked is normally a big distinction between a "full time" employee and "part time" employee for traditional roles, which have different employment costs -- It's not mentioned in the article

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

#100

Post by tlrobinson »

AstralStorm wrote: post #90
icebraining wrote: post #84

Earlier quoted context omitted.

It says "... or workplace". Uber drivers don't work in Uber's buildings.

This is not quite an exclusive or. The service is not outside of business standard variety. Other cab companies have client driven matchmaking systems too now... They also employ office workers. The workplace for a cab driver is his car. Therefore, what Uber does would make them a cab company that abuses contractors instead of employing employees. However, the key point here is the test A. If Uber is specifically tel…

> Fudging with scoring system to fire those who do not follow such orders indirectly could be construed as such as well.

Surely companies must be allowed some method to ensure the quality of work they desire.

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