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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

#191

Post by e40 »

danans wrote: post #181
e40 wrote: post #177

Earlier quoted context omitted.

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 r…

I'm glad to hear that.

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

#192

Post by walshemj »

justherefortart wrote: post #184
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…

But if your expecting me to provide kit to your required spec that increases my day rate :-) though that does help with fending off the tax man.

You confusing say a brickie, sparks or a chippie who can use the same tools from job to job - with an it job where you might have to buy new software / hardware.

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

#193

Post by bluGill »

bdcravens wrote: post #96
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.

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.

There are a few differences: employees are invited to the meeting where quarterly financial performance is shared; they have to do the yearly goals; they are invited to the the year end holiday lunch; and they sometimes get a bonus. The last one is contractors are first cut when there are financial hard times.

Many employees skip the financial meeting. Contractors are often ignored when they sneak into the holiday lunch. For most contractors the bonus is the biggest difference, and the courts tend to agree that is not enough and force the contractors to get the bonus as well.

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

#194

Post by hartator »

laveur wrote: post #188

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 t…

Yes, making new laws is always yhe solution. The fight is more about is Uber drivers should get minimum wages when they are have a low day than status.

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

#195

Post by rconti »

tomohawk wrote: post #108

ABC has long stood for Anywhere But California How they expect to stem the flow of businesses moving out of the state while not honoring simple contracts is beyond me.

Can you explain why that's the case, when this is apparently a standard that already existed in other states, before California (according to the article)?

Can you explain why California is thriving when people incessantly predict the imminent collapse due to every employer moving out of state?

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

#196

Post by sgustard »

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…

Being an app company and not a company that gives rides is a strange rationale for investing in self-driving cars. Will the robots be considered independent actors too?

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

#197

Post by bluGill »

opencl wrote: post #182
ajross wrote: post #52

Earlier quoted context omitted.

> 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.

Legally, but not socially. If a company eliminates contractors well the contract was over. If they eliminate employees that is bad for moral. (except for the rare employee who could be gotten rid of "for cause" in even the strictest system)

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

#198

Post by knuththetruth »

laveur wrote: post #188

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 t…

I don’t think companies who have profited from the declining power and wealth of American workers should be able to buy themselves a new labor classification that serves their interests. That’s not how a healthy democracy works.

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

#199

Post by bluGill »

greglindahl wrote: post #37
scrumbledober wrote: post #19

Earlier quoted context omitted.

I'm currently working as a contract to hire in SF

Do you think you know why the position was structured like that? And did you have other non-contract job offers? Not trying to put you on the spot, just wondering about the details.

I don't know that I have ever used contract for hire in the definition of California, but it is the preferred way to do. If I have an opening for direct hire I get to read some resumes, check your references, have an interview and hope that tells me how well you will write code. Of course how well somebody interviews tells me nothing about how they code, and references are chosen and coached so they are not reliable.

The alternative is hire somebody for a few weeks of contract, and if they are good give them an offer. Note that I specified two weeks. One of my past bosses said he knew faster than the new guys co-workers: when he asked the rest of the team how the new guy was doing, if the guy was good on the 3rd day you could see the mental shift as the team realized the guy hadn't been on the team for years (even though he was asking the teammate who had come to ask when the new guy's computer would arrive). If the guy wasn't good there would be several weeks of he is "getting up to speed".

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

#200

Post by octorian »

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…

I think there's a distinction here, which is often lost due to similarity of the language.

One class is "contract employee". These people are basically treated as second-class employees (with just enough arbitrary restrictions to enforce that) of the company they effectively work for.

The other class is "employee of a contractor". These people are real employees of a company that hires them and provides them benefits. The company they work for then sub-contracts to various other companies and uses those people to fulfill the work under that contract.

Since both cases use the term "contractor", and the former is far more common in the minds of everyone here, its easy to get the two distinctions confused.

Maybe we need better terminology?

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