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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

#241

Post by mattmanser »

s73v3r_ wrote: post #228
twoodfin wrote: post #218

Earlier quoted context omitted.

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.

It's no different to how every other freelance employing business works.

If I run an advertising agency and I've got 4 freelance film makers I regularly use and one of them stops taking my calls or almost always says no, I'll eventually stop calling him and add someone else to my regulars. It's just business, no point me wasting my time calling him.

I think there's a load of companies abusing the gig economy at the moment, but Uber aren't the worst and definitely not for things like they provide a GPS or set the rate, it's all the delivery companies and the gas-servicing people who all have to wear uniforms and work full days.

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

#242

Post by s73v3r_ »

mattmanser wrote: post #241
s73v3r_ wrote: post #228

Earlier quoted context omitted.

"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.

It's no different to how every other freelance employing business works. If I run an advertising agency and I've got 4 freelance film makers I regularly use and one of them stops taking my calls or almost always says no, I'll eventually stop calling him and add someone else to my regulars. It's just business, no point me wasting my time calling him. I think there's a load of companies abusing the gig economy at the m…

"If I run an advertising agency and I've got 4 freelance film makers I regularly use and one of them stops taking my calls or almost always says no, I'll eventually stop calling him and add someone else to my regulars. It's just business, no point me wasting my time calling him."

But that's different than the situation with Uber/Lyft. In your story, the person has the ability to find new clients. If you're an Uber/Lyft driver, you can't exactly "go it alone", so to speak. You're kinda stuck with Uber/Lyft.

"I think there's a load of companies abusing the gig economy at the moment, but Uber aren't the worst and definitely not for things like they provide a GPS or set the rate, it's all the delivery companies and the gas-servicing people who all have to wear uniforms and work full days."

I disagree; I feel setting the price unilaterally is a huge part of why they're abusing things. By doing that, they are kind of dictating the wages that the driver can earn. If Uber/Lyft decide to change the per mile rate, there's nothing the driver can do. By contrast, something like Angie's List allows the different providers to set their own rates.

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

#243

Post by smsm42 »

tzakrajs wrote: post #235
smsm42 wrote: post #221

Earlier quoted context omitted.

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…

Perhaps the government could pay for unemployment insurance or benefits when there is reduced work for gig employees. The government can fill in the gaps to make sure business have access to a stable pool of gig workers with the ability to retool for different gigs.

There's a stable pool of gig workers right now, which success of Uber and alike demonstrates very vividly. So the availability of the workers is not a problem which needs to be solved.

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

#244

Post by CamperBob2 »

dragonwriter wrote: post #64
CamperBob2 wrote: post #46

Earlier quoted context omitted.

So if any one of those conditions isn't the case, you are an employee under the law. I see people in this thread wondering how it'll affect companies like Uber/Lyft/whatever 'B' is downright apocalyptic for contract developers in all sorts of roles. Sounds like massive judicial overreach to me. If your summary is accurate, I wouldn't expect that particular guideline to survive appeal.

> Sounds like massive judicial overreach to me. If your summary is accurate, I wouldn't expect that particular guideline to survive appeal. It's a California state law issue and this is a decision of the California Supreme Court upholding the decision of the Court of Appeals, which had upheld the Superior Court. This has already survived the whole chain of appeals.

It's a California state law issue and this is a decision of the California Supreme Court upholding the decision of the Court of Appeals, which had upheld the Superior Court. This has already survived the whole chain of appeals.

So you're saying it can't possibly raise any (US) constitutional questions?

As an example, consider what happens when one of the affected contractors is in another state. That makes it a Commerce Clause issue. You can wave your hands and sputter indignantly all you want, but Wickard and Filburn are going to wave right back at you.

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

#245

Post by CamperBob2 »

rtpg wrote: post #111
thaumasiotes wrote: post #109

Earlier quoted context omitted.

> If you can't provide your main business without this set of people, then those people are probably your employees? This doesn't make any sense. Farmers are not employees of grocery stores. Factory foremen are not employees of drop shippers. Amazon warehouse staff are also not employees of drop shippers. Comcast cable layers are not employees of YouTube. You think farmers aren't employees of grocery stores because t…

This is a pretty big simplification. Grocers buy produce from the farmers, not their time. This matches some conrractors, of course. But it also extremely doesn't match many contractor developers. Are you required to be online 4-6 hours a day? Do some of the companies employees not even know if you are actually a contractor? Are you the one picking up the metaphorical phone when the company's client is calling with a…

If you show up with a deliverable , can go on vacation without clearing it with anyone, and are actually your own boss... Well that's different of course

It was different, but my point is that the 'B' clause ("Service is outside the business' normal variety", whatever that means) can be interpreted to remove this distinction.

A lot of people are cheering for this bullshit without thinking it all the way through.

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

#246

Post by tzakrajs »

smsm42 wrote: post #243
tzakrajs wrote: post #235

Earlier quoted context omitted.

Perhaps the government could pay for unemployment insurance or benefits when there is reduced work for gig employees. The government can fill in the gaps to make sure business have access to a stable pool of gig workers with the ability to retool for different gigs.

There's a stable pool of gig workers right now, which success of Uber and alike demonstrates very vividly. So the availability of the workers is not a problem which needs to be solved.

Sorry for being unclear by my use of stable pool. I meant to say that the pool was stable in the sense that it was healthy and sustainable for people despite market fluctuations.

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

#247

Post by jp10558 »

s73v3r_ wrote: post #242
mattmanser wrote: post #241

Earlier quoted context omitted.

It's no different to how every other freelance employing business works. If I run an advertising agency and I've got 4 freelance film makers I regularly use and one of them stops taking my calls or almost always says no, I'll eventually stop calling him and add someone else to my regulars. It's just business, no point me wasting my time calling him. I think there's a load of companies abusing the gig economy at the m…

"If I run an advertising agency and I've got 4 freelance film makers I regularly use and one of them stops taking my calls or almost always says no, I'll eventually stop calling him and add someone else to my regulars. It's just business, no point me wasting my time calling him." But that's different than the situation with Uber/Lyft. In your story, the person has the ability to find new clients. If you're an Uber/Ly…

I think they would have to end up far more like ebay where Uber gets a request for a ride, puts that up for a period of "bid" by the drivers who will bid a price for that ride, and then gives that list with sorting options back to the requester to pick from.

Of course, I imagine that sort of process would make it much harder to actually get a ride and make it far less interesting to the users.

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

#248

Post by Veelox »

s73v3r_ wrote: post #216
Veelox wrote: post #159

Earlier quoted context omitted.

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?

The normal Uber workplace is the office where the app is developed, drivers never visit so they are not part of the normal work place. That argument or some other one that is equally dumb on it's face but might work in a court of law

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

#249

Post by kbutler »

pbhjpbhj wrote: post #187
_jal wrote: post #155

Earlier quoted context omitted.

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…

No, it is not just a matter of which set of papers the company and the individual signed. I expect, and the government expects, that if someone works like an employee they are an employee (and have employee rights and payroll withholding, etc.)

Different agencies have different criteria, but the IRS considers several factors:

https://www.nolo.com/legal-encyclopedia/independent-contract...

The agency [IRS] is more likely to classify as an independent contractor a worker who:

  can earn a profit or suffer a loss from the activity
  furnishes the tools and materials needed to do the work
  is paid by the job
  works for more than one company at a time
  invests in equipment and facilities
  pays his or her own business and traveling expenses
  hires and pays assistants, and
  sets his or her own working hours.
On the other hand, the IRS is more likely to classify as an employee a worker who:

  can be fired at any time
  is paid by the hour
  receives instructions from the company
  receives training from the company
  works full time for the company
  receives employee benefits
  has the right to quit without incurring liability, and
  provides services that are an integral part of the company’s day-to-day operations.

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

#250

Post by jp10558 »

PhantomGremlin wrote: post #123
mabbo wrote: post #104

Earlier quoted context omitted.

FedEx, UPS, Amazon Logistics, basically every delivery company. Everyone in delivery these days is an "independent contractor" with no control over their route or hours, working for a business that does nothing but deliveries.

FedEx, UPS, Amazon Logistics, basically every delivery company. I don't know about the rest of them, but your information is totally wrong about UPS. The "delivery" people are most definitely employees. Union employees, Teamsters in fact. Which means that UPS doesn't get to push them around all that easily. But which also means that the relationship is occasionally more confrontational than it should be. https://team…

Interestingly enough, at least around here, UPS is also the best delivery company. Decent prices, can get daily pickups, delivers on time, drives a company truck.

Half the time with FedEx you have no idea why a random truck is stopping to drop off a package. We also at my office always have to call them to do any pickup, the UPS guy just grabs outgoing when it delivers the incoming.

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