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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

#141

Post by Hermel »

lstroud wrote: post #133

Why does a court get to establish a rule like this? Shouldn’t this be a legislative responsibility?

The legislative process is slow. In an ideal world, the constitution and the parliament define the laws in general terms that do not need to be adjusted for every new technology or economic development. In Switzerland, there is even a law that says that if a law is obviously missing, judges are free to judge as if that law existed. So the judicative clearly also has a law-making role, but at a much lower level. It’s like the system architects and the programmers in software development: in the end, both engage in a design activity, just at a different level of abstraction.

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

#142

Post by pbhjpbhj »

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.

Aren't the key elements to being independent in setting your work hidden anyway.

Things like knowing when the contract ends aren't visible.

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

#143

Post by pseudalopex »

briandear wrote: post #128
apendleton wrote: post #85

Earlier quoted context omitted.

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.)

So are property owners employees of AirBnB?

Property owners set their own rates and don't get detailed directions from Airbnb for each stay.

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

#144

Post by pbhjpbhj »

IncRnd wrote: post #129
rtpg wrote: post #47

Earlier quoted context omitted.

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 thos…

> If you can't provide your main business without this set of people, then those people are probably your employees? That's not the case. A home builder may exclusively hire various sub-contracting companies to assemble a home, put in electricity, add finishings, etc. Those sub-contractors contract for many other home builders or landlords and are not employees of the home builders. That is the case, even though a ho…

> even though a home builder would go out of business without the sub-contractors. //

They wouldn't, because they could drop in a replacement contractor. In your example the house builder relies on contractors but not the specific set of people doing the contracting (as in the parent), so any contractor can be replaced readily from the pool of contractors.

In theory a contractor can send someone else in to do the work, as long as the work in the contract is completed. If you demand a specific person to do work then they're likely an employee.

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

#146

Post by exelius »

fauigerzigerk wrote: post #97
apendleton wrote: post #85

Earlier quoted context omitted.

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).

I think a distributed ownership model is actually the most likely model for self-driving cars given the capital investment required.

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

#147

Post by geofft »

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.…

B is mis-stated in this article (and therefore in your summary): it's about whether the type of work is part of the type of business, not about the location. The decision gives an explicit counterexample that a plumber fixing a bathroom in a retail store does not fail test B and still counts as an independent contractor, because even though the plumber is on aite, the retail store isn't engaged in plumbing work.

(B would be a surprising change for consultants and trainers if it were about location, but it seems to avoid that.)

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

#148

Post by dghughes »

taneq wrote: post #42
BurningFrog wrote: post #26

Earlier quoted context omitted.

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.

There were casual workers at the last place I worked some had been there 20 year or more. One day (literally on one day) they were all told they were not needed, no severance, no thanks just let go. Disposable human workers.

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

#149

Post by geofft »

gnicholas wrote: post #75
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.…

I think A and B present a difficult challenge for Uber/Lyft. Drivers do not have the freedom to control how to perform their services. They do have some leeway in route, but not total leeway. And there are many guidelines they have to abide regarding the condition of their vehicle and treatment of passengers. Element B is a little less clear, but I think it would be difficult for Uber/Lyft to overcome. Drivers would…

Please read the decision re B (starting at page 64 of http://src.bna.com/ypI)—if I'm not misreading it, it has nothing to do with work location and the article is confused. But I am not a lawyer and would appreciate your reading if it :)

My guess is that B comes down firmly on the side of Uber/Lyft drivers being employees, unless they can convince a judge that their business is merely "providing an app that lets people find car companies" and not "giving people rides."

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

#150

Post by jdavis703 »

How does the "B" in ABC affect me as someone who does software engineering contracting on the side sometimes for tech firms? I've got a decent network out here in SV, and sometimes a startup facing an urgent deadline will hire me to do some code writing for a couple of weeks. This is work I do outside of my normal 9-5. But now it seems I can't do this without being classified as an employee. That really sucks.
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