California Supreme Court Transforms the Test for Who Is an Employee • Hacker News Board

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

#151

Post by johan_larson » Tue, May 01, 2018, 1:04 PM UTC

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…

I guess the question is whether the companies can allow the drivers enough freedom to make them contractors, while still retaining enough control to maintain service standards. Letting the drivers set their own prices, perhaps through some sort of bidding system, might go a long way.

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

#152

Post by geofft » Tue, May 01, 2018, 1:08 PM UTC

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.

See my comment at https://news.ycombinator.com/item?id=16966621 ; I think B is misreported here. It's about type of work, not place of work.

That said, my (non-lawyer, pre-coffee) reading of what B actually says is that while it won't turn consultants into employees of the place they consult for, it will turn specialists into employees, whether or not they work on site. If a company occasionally submits patches to an open-source project they use, and then they hire a maintainer full-time for a few months, that sounds like B would require them to hire the maintainer as an employee.

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

#153

Post by dgacmu » Tue, May 01, 2018, 1:18 PM UTC

semi-extrinsic wrote: post #110

thaumasiotes wrote: post #109

Earlier quoted context omitted.

> If you can't provide your main business without this set of people, then those people are probably your employees? This doesn't make any sense. Farmers are not employees of grocery stores. Factory foremen are not employees of drop shippers. Amazon warehouse staff are also not employees of drop shippers. Comcast cable layers are not employees of YouTube. You think farmers aren't employees of grocery stores because t…

But that is wildly different. A farmer provides goods that hold value for almost anyone. Once they have produced a bushel of apples, that bushel can be bought by anyone. On the contrary, once a software developer has produced some code, it only holds value for the specific company that order this specific piece of code.

Not always. Consider two scenarios: (1) adding a feature to an existing product that the company sells. (example: writing a better grammar checker for MS word). (2) contracting with the developer of a small open source embedded database to add a specific SQL feature that you wanted to use in your web backend.

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

#154

Post by jawns » Tue, May 01, 2018, 1:21 PM UTC

geofft wrote: post #149

gnicholas wrote: post #75

Earlier quoted context omitted.

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 peop…

Yes, "providing an app that lets people find independent contractors who give people rides" is what Uber/Lyft will argue.

And there are a host of companies that offer similar services. They derive their value from being able to facilitate business interactions.

Angie's List is another example, and I can totally see similar businesses passing the "B" part of the test, because although they may implement some quality-control measures, such as requiring the independent contractors to abide by certain terms or meet certain standards, they are pretty hands-off in terms of HOW the recommended plumber fixes the clogged drain, or HOW the recommended carpet cleaner schedules its appointments.

But with Uber/Lyft, the HOW is much more like an employee relationship.

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

#155

Post by _jal » Tue, May 01, 2018, 1:22 PM UTC

pbhjpbhj wrote: post #142

kahnpro wrote: post #92

Earlier quoted context omitted.

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.

I don't follow.

I was a contract consultant for over a decade; I didn't hide any work. I usually didn't work out of their office, but when I did use their resources my working assumption was that any artifact left behind was theirs, modulo any agreement to the contrary.

Intermediate documents, experimental code, etc. weren't offered to customers, but I can't imagine what I'd want to hide. (Aside from my shame, given how a couple projects went.)

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

#156

Post by ericabiz » Tue, May 01, 2018, 1:24 PM UTC

jdavis703 wrote: post #150

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.

For you, and others in this type of role, it likely makes the most sense to form a LLC or other corporation, and do a corp-to-corp contract. If this ruling holds, companies may even start to require that.

Unfortunately for those in California, CA requires an $800/year minimum fee for a corporation. It’d be nice if these changes forced a change in that law.

(By the way, just to head off a common misconception: You cannot just “incorporate somewhere else” to avoid the $800 fee. If you are a California resident doing work in California, even if you have a “foreign corporation”—California’s term for corporations from other states—you must register it in California and be subject to the $800 fee.)

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

#157

Post by emaginniss » Tue, May 01, 2018, 1:25 PM UTC

jdavis703 wrote: post #150

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.

I think it's about the service that the contracting company does. The idea being that the company should only contract for things that are different than what it normally does. IOW, if you have a 100 SW developers in SV that are employees, you can't also have a bunch of contract SW developers in SV.

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

#158

Post by [deleted] » Tue, May 01, 2018, 1:37 PM UTC

rdiddly wrote: post #81

gnicholas wrote: post #75

Earlier quoted context omitted.

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…

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.

[deleted]

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

#159

Post by Veelox » Tue, May 01, 2018, 1:38 PM UTC

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…

I think that Uber/Lyft could pretty easily argue A. The driver has control over the quality/cleanliness of the car, amount of conversation, extra perks provided, and timeliness of arrival.

While I agree element B would be difficult for them to overcome I would give it around 50/50 that they can successfully argue the drivers are not a part of the normal workplace.

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

#160

Post by mattmanser » Tue, May 01, 2018, 1:42 PM UTC

pseudalopex wrote: post #143

briandear wrote: post #128

Earlier quoted context omitted.

So are property owners employees of AirBnB?

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

They're just providing a free GPS, it's not a core part of the business. Even the rates thing isn't particularly compelling, the drivers can decide which sort of jobs to take, normal, high, etc. it's not like they have set shift patterns or anything.