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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

#211

Post by s73v3r_ »

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 think their money would be better spent instead fighting for a new classification of labor."

But there's no need for it. These companies not wanting to pay people what the law requires is not a need.

"But I feel they are also not a regular employee."

Why not? Many of the things people cite (get to choose hours, use own equipment, etc) are things that many regular employees also have. How many of us here have flex time?

"It gives both sides rights under the law."

What rights would the employees have under this law? Would they get a minimum wage for the hours that they're logged into the app? Would they get vacation time? Would they get sick leave? Cause unless they get more than they get now, I don't see how this would benefit them.

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

#212

Post by s73v3r_ »

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…

Agreed. If I work for a plumbing company, where is my normal workplace?

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

#213

Post by s73v3r_ »

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…

On Angie's List, the contractor sets the price, and I don't believe they're punished (sent to the bottom of the rankings) if they don't choose to accept a client. This is not the case with Uber/Lyft, where Uber/Lyft sets a price the driver has no say in whatsoever, and if you turn down rides, you get sent to the bottom of the queue.

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

#214

Post by forapurpose »

Camillo wrote: post #77
forapurpose wrote: post #41

Earlier quoted context omitted.

> The contractors tend to perform the exact same duties as employees, but are usually paid less, have worse future prospects ... There was a very interesting NY Times article last fall about that issue. They contrasted janitors at Apple, who work for a contractor and have no prospects for advancement in Apple, and Xerox's janitors in the 1980s who were employees, and one of whom is now Xerox's CTO: https://www.nytime…

You are so wrong I don't know where to start. The percentage of Americans with college degrees has never been higher. For decades, the message from authorities has consistently been to encourage youths to go to college as much as possible, and the number of students has kept increasing beyond all reason. We are well past the point of diminishing returns, and into pure and simple harm, where millions of Americans go i…

Those claims are trendy, but the parent provides no basis for them and I've never seen one. There's plenty of reason to believe otherwise:

The 'youths' want to go to college, and in a free country and a free market, it's believed that they know and decide their own best interests.

Businesses in fact highly value college education; they pay people with college degrees much more than people without them. The incomes of people without degrees has been stagnant for decades, and there's concern among economists that their job prospects will become more difficult due to automation. If it had reached a point of diminishing returns (really, small marginal benefit), then the wage differential would be small.

As I pointed out above, it's really economic discrimination: Education depends, more than anything, on family wealth. So the outcome of what the parent advocates is that the wealthy classes go to college and the lower classes don't get that opportunity. Usually it's wealthy people with college degrees that say college isn't needed; but tell them that their kids shouldn't go to college and you'll get a much different response.

> The percentage of Americans with college degrees has never been higher.

That's great. We want people to be better educated, more productive, and live better lives. That's the 'American Dream'. We don't want the economy stuck in the 1980s, but to move forward.

It also makes the economy more productive. For example, Silicon Valley can't get enough talented developers, yet the United States (and world) is filled with kids with no access to education, many of whom probably could fill that talent gap. We need more education. High skill, high-paying jobs will go where there are more highly educated workers; if the U.S. cuts college education, it will go elsewhere. New businesses and industries that we haven't yet imagined will arise when they have that resource of educated people.

Education also makes people healthier, better citizens, better parents, etc. HN celebrates knowledge; it's hard to suddenly discount it in this case.

> It's a disaster.

By what measure? The only disaster is that education is too expensive and not available to people without money.

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

#215

Post by s73v3r_ »

mattmanser wrote: post #160
pseudalopex wrote: post #143

Earlier quoted context omitted.

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.

I find the rates thing quite compelling. Uber/Lyft are dictating the prices. Drivers have no say in them. And, while you can technically decline rides, the Uber/Lyft algorithms will punish you for doing so.

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

#216

Post by s73v3r_ »

Veelox wrote: post #159
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…

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.

Given that the job is "giving rides to other people in your car," how would B not apply?

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

#217

Post by fortythirteen »

hajile wrote: post #202
fortythirteen wrote: post #131

Earlier quoted context omitted.

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…

Let's say the average developer works 45 hours a week at a company and makes $15/hr more than a FT senior dev (with salary calculated at 40 hours). That's $2500 more a year, which sounds bad when you factor in all the FT benefits.

But, the FT senior developer spends a quarter of his/her time in meetings, is expected to be a "team player" in regards to internal politics, and can't do any side projects without running it by the business.

Both sides working 45 figure is kind of a fairy tale too. Having been on both sides, usually either FT or contractors are working all the extra hours. If it's open-ended contracts, then the FT are working many extra, unpaid hours and the contractors get a work/life balance (worth multiple $10k, IMHO). If it's short term contract, the contractors work 50+ hours a week, within the project window, make out like bandits, and go on to the next gig.

It's all preference. Neither side is objectively better.

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

#218

Post by twoodfin »

s73v3r_ wrote: post #215
mattmanser wrote: post #160

Earlier quoted context omitted.

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.

I find the rates thing quite compelling. Uber/Lyft are dictating the prices. Drivers have no say in them. And, while you can technically decline rides, the Uber/Lyft algorithms will punish you for doing so.

What does it matter if Uber punishes drivers who decline rides?

If I’m an independent developer, and I frequently refuse to accept your contract work, you might “punish” me by not offering me as much work in the future. That doesn’t change the fact that I always have the choice to accept offered work or not.

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

#219

Post by knuththetruth »

dsfyu404ed wrote: post #208
knuththetruth wrote: post #198

Earlier quoted context omitted.

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.

Companies don't "convince" people of this kind of stuff. They use their wealth and power to force it on workers with bought-and-sold politicians.

People sleeping in their cars in between working at an Amazon distribution center or driving deliveries don't want a new labor classification. They don't want to die in poverty and are just trying to survive this ceaseless assault.

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

#220

Post by s73v3r_ »

geofft wrote: post #147
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 w…

See, I was thinking about B from the other side. If I work for a plumbing company, I'm likely not doing my plumbing in the office. So, where would my normal workplace be?

I'm framing this as an argument that the plumber could be considered an employee of the plumbing company, not the retail store.

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