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

#221

Post by smsm42 » Tue, May 01, 2018, 5:12 PM UTC

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…

The problem is that people want the easy access of Uber (taking the term generically) jobs but when they get it, they also want the security and paternalistic perks of standard employment jobs. Of course, this can not exist together - the whole point of Uber jobs is that they are not standard employment, that's why they are so easily accessible and so easy to respond to demand.

It is a fundamental contradiction - the perks of standard employment is exactly what makes it more expensive and less dynamic. You can not solve this fundamental tradeoff by introducing some new classification - whatever classification you choose, you'd have to place it somewhere on the spectrum between complete isolation (like ads board having nothing to do with advertised businesses) and complete integration (like full-time union employee).

Whenever you place it, it would be a tradeoff between the interest of the employer, the employee and the consumer. In ideal unicorn-rainbow world, the optimal points would be decided by a free market. In real world the fixed points would probably be negotiated by courts, lawmakers, unions and brazen new companies like Uber finding new optimum spots on the spectrum not explicitly prohibited by the regulators. Of course, the regulators can prohibit those spots then, and that's what is smart for Uber to fight - without it, they're back to existing spots and then what's the point in them being there?

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

#222

Post by s73v3r_ » Tue, May 01, 2018, 5:15 PM UTC

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…

"Not to mention that they never get dragged into internal company politics or loyalty games."

This hasn't been my experience. Those games can just as easily involve whether or not to renew someone's contract, or whether to terminate it early.

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

#223

Post by smsm42 » Tue, May 01, 2018, 5:19 PM UTC

geofft wrote: post #206

jawns wrote: post #154

Earlier quoted context omitted.

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 n…

Having card on file is not a big difference - a lot of sites like Amazon or Yelp record cards, that doesn't mean Amazon sellers or Yelp business are employees on Amazon and Yelp. Ability to choose specific service provider is much more of a difference. But Uber could easily fix it (though it probably would raise some discrimination concerns, for example).

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

#224

Post by geofft » Tue, May 01, 2018, 5:19 PM UTC

s73v3r_ wrote: post #220

geofft wrote: post #147

Earlier quoted context omitted.

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.

I'm not at all qualified to read this sort of decision, but, it seems to me like if you're clearly an employee of company 2, then you're definitely neither an employee nor an independent contractor of company 1 and this test doesn't even apply.

(I'm not sure if/how this breaks down if company 2 exists solely to provide people to work for company 1 and has no meaningful independent existence, which ... is probably the case for many Uber drivers now, so that's a relevant question.)

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

#225

Post by s73v3r_ » Tue, May 01, 2018, 5:26 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.

I don't think so. The gaffer is told what lighting effect is desired, but they are the one that has control over how it's achieved. Same for the propmaster; the director says, "We need something that does this", and it's up to the propmaster how to achieve that. That industry does also have some pretty strong unions, so I think they'd be ok regarding labor standards.

Just like if you hired someone to paint your fence, you do have control over how you want it (what color, for example), but not necessarily over how it gets done (if they end up tricking a bunch of other painters to do it because they say how fun it is).

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

#226

Post by s73v3r_ » Tue, May 01, 2018, 5:29 PM UTC

derekp7 wrote: post #3

Does this affect "contract to hire" positions, where companies "try before you buy"? Further, can companies still get contractors through a contractor agency, assuming the workers are employees of that agency?

An agency would be a "corp to corp" contract, so that should not be affected by this ruling, provided the person is an employee of the contracting corp.

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

#227

Post by s73v3r_ » Tue, May 01, 2018, 5:33 PM UTC

joshuaheard wrote: post #189

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.

What benefits would the employees have under that system? How would they be better off with that than they are now?

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

#228

Post by s73v3r_ » Tue, May 01, 2018, 5:41 PM UTC

twoodfin wrote: post #218

s73v3r_ wrote: post #215

Earlier quoted context omitted.

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.

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

It means that the driver is unable to choose their work, which was one of the key differences between a contractor and employee.

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

#229

Post by s73v3r_ » Tue, May 01, 2018, 5:42 PM UTC

geofft wrote: post #224

s73v3r_ wrote: post #220

Earlier quoted context omitted.

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.

I'm not at all qualified to read this sort of decision, but, it seems to me like if you're clearly an employee of company 2, then you're definitely neither an employee nor an independent contractor of company 1 and this test doesn't even apply. (I'm not sure if/how this breaks down if company 2 exists solely to provide people to work for company 1 and has no meaningful independent existence, which ... is probably the…

I was thinking from the perspective of Uber for Plumbers or Pluber (TM), where there would be a dispute over whether the plumber was an employee of Pluber or not.

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

#230

Post by eecc » Tue, May 01, 2018, 6:39 PM UTC

kahnpro wrote: post #130

eecc wrote: post #119

Earlier quoted context omitted.

Somewhat true, but to me what matters as a freelance is that I get to make the call when I’ve had enough of a particular contract, or choose whether to wait for a more interesting project, or just sign up to whatever conference I feel it’s important to my own career plan. When I was an employee I always had to beg to do anything, as well as suck up whatever shite projects the accounts would figure out would mean a sw…

That's great if you're working as an actual freelancer. But most that I've seen don't get such freedoms. Another good test is, are you allowed to subcontract your work or not?

Eh that’s a good question, practically never. But there’s some good reason for it, in that development is not a routine job where you are completely interchangeable. There’s - thankfully - a certain amount of creative skill and professional judgement that makes me the hire and not a sub of my choice.

Several years ago Italy introduced CoCoCo contracts to capture this concept of temporary professional employment, between an employee on your payroll and a butcher you buy a stake from.

Eventually companies abused it and applied it to completely subordinates such as call center operators. It was - rightfully, given the circumstances - repealed.

I wonder if we could have something like that again, it would be easier than this pantomime.