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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

#201

Post by octorian »

BurningFrog wrote: post #26
taurath wrote: post #2

It’s interesting how even within companies a hard set social hierarchy has taken place between employees and contractors. The contractors tend to perform the exact same duties as employees, but are usually paid less, have worse future prospects (companies tend to like to hire from full time to full time), worse benefits and generally don’t get most of the perks of being an employee. For coders, is this because they’r…

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.

I've run into both types.

The former are typically a group of second-class employees companies use as a way to "trial" someone before hiring them for real, or simply to skirt the requirements of employing someone full-time. They also tend to work for some shell company you've never heard of, at least on paper.

The latter tend to be older folks, and often experts in various fields. They also have little trouble finding another "gig" almost immediately after their current one dries up. These people are usually self-employed.

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

#202

Post by hajile »

fortythirteen wrote: post #131
taurath wrote: post #29

Earlier quoted context omitted.

Contractors are almost always paid less in my experience after taking into effect stock grants and bonuses. The contracting agency probably gets a nice portion of the takehome though (for having the political capital of being on a preferred vendors list), so to the company they probably pay more than salary.

You also have to factor in the amount of responsibility for pay. A contractor with decent negotiation skils may net out slightly less than a FT senior dev at a company, but they often have less responsibility than even the FT junior and mid-level devs. Not to mention that they never get dragged into internal company politics or loyalty games. Factor in overtime, or the lack thereof, and you can make more or have far…

It's way more than 1k. I did a contract with a company once and looked to move to FTE. My rate was about $70/hr with an informally enforced cap at a bit over 40hr per week.

They submitted a total cost of employee as part of their employment request to HR. Their bog standard expenditure for an employee sitting right next to me was 50k/yr higher than I was making (my 1099 rate was the official standard for the position and not negotiated). $15/hr less (given unofficial hour cap), but with good insurance (group rates are also lower for the same insurance compared to individual), bonuses, vacation, 401k, etc.

Most companies simply refuse to pay out the same for a contractor as they would for an employee.

A large programmer union could do wonders for the industry.

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

#203

Post by pnathan »

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've used a number of the services over the years, and I agree. There are a visibly different category of work; a kind of blend of piecework employee and contractor - and should be properly classified as such.

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

#204

Post by SolarNet »

tlrobinson wrote: post #100
AstralStorm wrote: post #90

Earlier quoted context omitted.

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.

A scoring system of the resulting work is fine. A scoring system that effectively encodes how they did the work is problematic because it means they company is now dictating how work be done, which is an employee relationship.

E.g. It's the difference between: a scoring system that uses a coding style standard and unit tests on the resulting code to build a score; and a scoring system that uses hours logged into the computer manipulating the IDE and lines of code written per hour to build a score (the contractor could use that as a way to score himself and for billing, but not the company).

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

#205

Post by IncRnd »

octorian wrote: post #200
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…

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…

That's an interesting point.

In my experience "contract employees" normally work for a third party company that gets contracted by the hiring company. Then, the third party contracting company pays their employees after deductions and taxes. Otherwise, if not working for a third party company those individuals may be classified as independent contractors. When they are classified as independent contractors there already are limits on the number of hours that can be worked before they get turned into employees.

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

#206

Post by geofft »

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…

Angie's List seems like ... a list. I have the option of picking which independent contractor on the list I want to hire. I pay them, I don't have my credit card number on file with Angie's List. And in common speech I will "get an Uber" or "get a Lyft" to go somewhere, but I won't "get an Angie's List" (or even any slightly similar phrasing) to do some work, I'll "find someone from Angie's List." I definitely have never said that I'll "find a car service on Uber".

So yeah, I agree that Angie's List is clear of B and Uber/Lyft much less obviously so.

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

#207

Post by greglindahl »

justherefortart wrote: post #185
greglindahl wrote: post #35

Earlier quoted context omitted.

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.

Any candidate with a real job offer and a contract-to-hire offer is likely to prefer the real job offer.

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

#208

Post by dsfyu404ed »

knuththetruth wrote: post #198
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.

In a healthy democracy the people get what they want, even if it's dumb. Prohibition is the first example that comes to mind that won't offend many people here.

If the companies can convince the people to want a new labor classification badly enough then they can get it. Of course things will swing back if it turns out to be crap that is bad for enough people and good for too few.

The arc of progress is long.

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

#209

Post by kbutler »

icebraining wrote: post #107
Normal_gaussian wrote: post #102

Earlier quoted context omitted.

That isn't an exclusive or; the English language lets that be interpreted as either an xor or or, and the reasoning of the context shows it to be an or. To iterate; the statement sets out two conditions, either of which are sufficient independent of the other, and claims that each of a number of services met one of those conditions.

Thanks, I'm not a native speaker, and I thought either/or was a xor.

Native speaker here.

Either-or does imply exclusive-or, but it is often used less formally, so you will sometimes see it made explicit as "either x or y, but not both."

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

#210

Post by lightedman »

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…

"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."

Another example - Pizza Delivery. Plenty of Papa John's lawsuits out there. There have even been instances of franchises creating fake businesses to claim that's who the delivery drivers were working for, instead of Papa John's directly. (An example, 'Red Delivery Guy' here in Southern California. Claims to deliver everything like subway and such, but funny enough you'd only find these mentioned at Papa John's stores only, and Subway/Quizno's had utterly no idea their logos and trademarks were being used on this site.)

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