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

#181

Post by danans » Tue, May 01, 2018, 2:34 PM UTC

e40 wrote: post #177

danans wrote: post #27

There are many types of work outside of Tech and Gig-worker (the two that most comments here focus on) in which workers are inappropriately classified as contractors in order to reduce carried risk and cost to the employer, but where the employer also exerts significant control over the time, place and manner in which the work is done. My own familiarity with this (through family who have experienced it) is in the he…

I was talking with someone recently, and they told me that all new Kaiser doctors are contractors. I was shocked. I don't know if it is true. If it is, I hope this decision reverses that trend. Can you imagine coming out of medical school, passing the boards, doing your time as a slave as some hospital, to get an offer as a contractor? And all that, with an amazing amount of debt, that you assumed you could pay off e…

AFAIK (have a friends who are Kaiser docs), they are employees, and eventually partners, of the Kaiser Medical Group (a distinct business entity from Kaiser Permanente the nonprofit health system, that contracts exclusively with it), which comes with excellent benefits - including large home loans that are forgiven after several years of service and a generous pension. Perhaps they contract out some hyperspecialist roles.

But neither of those scenarios is really comparable to the ones low wage contract workers find themselves in.

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

#182

Post by opencl » Tue, May 01, 2018, 2:40 PM UTC

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…

Employees can be terminated easily though, at will employment means any employee can be dismissed at any time with zero notice without cause.

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

#183

Post by dragonwriter » Tue, May 01, 2018, 2:43 PM UTC

jerf wrote: post #162

PythonicAlpha wrote: post #135

Earlier quoted context omitted.

Yes, I guess so. Thing is, that legislation is often slow, so courts have to decide matters. In Germany also the legislation oftentimes is not competent. Many laws are made, that are without value, after they where on trial. So, at least in Germany, courts are oftentimes a second law maker, because they have to check, how all these rules fit together (in the best of all worlds, the legislation should do that beforeha…

It's worth pointing out there are different legal foundations. The United States is on something called Common Law [1], in which courts are generally supposed to follow precedent and not make up new stuff or function as de facto legislatures. Obviously, this is one of those plans that doesn't necessarily survive contact with the enemy, but under common law it is reasonable to criticize the court here as potentially o…

> The United States is on something called Common Law [1], in which courts are generally supposed to follow precedent and not make up new stuff or function as de facto legislatures.

Even while linking to Wikipedia articles, you manage to get the common law / civil law distinction almost completely backwards: the common law is a body of judge-made law resulting from judges acting as “de facto legislatures” (which is the source of the respect for precedent, as the prior decisions are themselves incorporated into law), whereas civil law is a system in which the law is strictly created by legislative bodies, and thus courts are expected to look exclusively to the acts of the legislature, and not prior court decisions.

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

#184

Post by justherefortart » Tue, May 01, 2018, 2:56 PM UTC

walshemj wrote: post #179

MM I just though isn't this going to kill Hollywood as the entertainment biz is run off "contractors" I think A & B would catch most film tv and theater professionals the gaffer gets told what lighting effect to go for also everyone on a show gets told when and where to show up on the call sheet.

IT contractors or contract-to-hire is likely dead as well. And good fucking riddance.

I contract out work from my company. You know what I don't require? Them to come and work at my office from "core hours". I don't have a dress code. I only have specs on what they're creating and the tools, which they provide.

They bill per job and do it at their leisure as well.

Just like when I built homes, my contractors provided everything they needed and I provided materials. I scheduled them but they showed up whenever it fit in their schedule based off their other contract jobs.

They're also required to carry their own GL and Worker's Comp if I hire them or go through their own LLC/Corp.

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

#185

Post by justherefortart » Tue, May 01, 2018, 2:59 PM UTC

greglindahl wrote: post #35

justboxing wrote: post #15

Earlier quoted context omitted.

> Does anyone actually do "try before you buy" in California? Yes. It's called C2H - Contract to Hire. Over 2,000 Tech Jobs in CA that are C2H on Dice.com https://www.dice.com/jobs/advancedResult.html?for_one=&for_a...

Just because there are openings doesn't mean it is frequently done!

I had several places ask me if I'd do contract to hire.

I said then yes, I'll do it for a set period of time at $250/hr, and it can't be canceled by either party until fruition.

To my surprise, they didn't like that offer. Contract to hire is a fucking joke.

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

#186

Post by Retric » Tue, May 01, 2018, 3:11 PM UTC

jawns wrote: post #154

geofft wrote: post #149

Earlier quoted context omitted.

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-c…

The problem with that argument is Uber will kick people off the platform. They manage the relationship between customers and drivers instead of simply facilitating communication and payment.

By comparison most point of sale (POS) venders just provide hardware and software don't involve themselves in the actual business enough though they may provide phone apps etc. Marketplaces like App stores or Amazon get more involved, but they don't dictate prices.

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

#187

Post by pbhjpbhj » Tue, May 01, 2018, 3:14 PM UTC

_jal wrote: post #155

pbhjpbhj wrote: post #142

Earlier quoted context omitted.

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…

Sorry that was quite hard to parse - I mean, what would you expect to appear different to colleagues?

The differences between employees and contractors may reside in the work they do, but doesn't need to, it's in the legal basis of their employment - which other workers can't see. Just like you can't see the wage another worker is getting, rat doesn't mean they're getting the wage you think they are.

The way you know someone is a contractor is they leave after a few months, or they retired and still work there. You can't necessarily tell by their work output.

If an employee and contractor are digging ditches the only difference is likely to be in the paperwork; though possibly the contractor uses their own PSE and tools, but not necessarily.

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

#188

Post by laveur » Tue, May 01, 2018, 3:17 PM UTC

Am I the only person that feels that places like Uber/Lyft/Etc are fighting the wrong battle? I think their money would be better spent instead fighting for a new classification of labor. One that defines exactly what a Gig (Hate that term) worker is and how the industry operates. Its clear to me that tons of people want a job like Uber offers. I think its time we make a law that represents that. Instead they waste their time fighting in courts to keep them as a contract employee, which according to the law is not what they are. But I feel they are also not a regular employee. I think adding a new classification for them is win win for both sides. It gives both sides rights under the law.

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

#189

Post by joshuaheard » Tue, May 01, 2018, 3:17 PM UTC

Maybe it's time for the legislature to create a new classification of employee: an independent employee, to conform to the nature of the new gig economy.

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

#190

Post by IncRnd » Tue, May 01, 2018, 3:18 PM UTC

pbhjpbhj wrote: post #144

IncRnd wrote: post #129

Earlier quoted context omitted.

> 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 wor…

> 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.

All you've done is restate my comment.

> 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.

That theory is wrong. If Business A depends upon the specific person B, and B does other work outside of A, then B is not necessarily an employee of A. There are many people with specialized knowledge that others do not have. The acquisition of that knowledge doesn't make them employees. It makes them valuable.