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

#251

Post by jp10558 » Wed, May 02, 2018, 5:09 PM UTC

SilasX wrote: post #65

Animats wrote: post #62

Earlier quoted context omitted.

I have yet to see someone propose a (satisfying) standard/desideratum to ground the employee/contractor distinction in law. Read the actual decision.[1] The discussion of this issue starts at page 62. The Court discusses why there should be a distinction, and why it needs to be less ambiguous than the "multifactor test". [1] http://src.bna.com/ypI

The stuff on page 62+ only explains why a quick, unambiguous test for how to classify is a good thing. I don’t think anyone was disputing that, and my comment certainly wasn’t. The closest it comes to addressing my points is when it talks of “evading wage and hour” laws. But that’s my point: Why do you count it as “evading” anything when you buy labor from someone who offers it as a freelancer, and that rate is under…

> “evading wage and hour” laws. But that’s my point: Why do you count it as “evading” anything when you buy labor from someone who offers it as a freelancer, and that rate is under the minimum?

Working for less than minimum wage is against the law. Are you actually suggesting that minimum wage is a bad idea, and so of course the rest wouldn't hold up. In this case, a minimum wage is considered a premise of the entire decision.

I cannot see an issue about gifting people something. I do see an issue with allowing paid work at less than the legal minimum wage, which I expect is why this was framed as an evasion of the wage and hour laws.

To go very off topic, my quick reason for why minimum wage laws are desired is as follows (note I don't think any of this works as follows in real life, but this is the reasoning I can come up with):

We as a society do not actually want to subsidize businesses where they shunt the cost of their employees to the public but privatize the profits - i.e. if Walmart only "makes money" because the local governments have to pay 1/2 the employee wages in poverty avoiding benefits - we don't want Walmart to succeed. So we set a wage minimum in law where if you make that amount society thinks you wouldn't need welfare etc. It may also be seen as a moral value that an employee should make enough to survive at a job. I.e. we should treat employes "this good" in a developed country.

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

#252

Post by s73v3r_ » Wed, May 02, 2018, 7:00 PM UTC

Veelox wrote: post #248

s73v3r_ wrote: post #216

Earlier quoted context omitted.

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

I completely disagree. The normal Uber workplace for developers is the office. How many of the drivers do you think have ever set foot in that office?

To put it another way, if you're a plumber who is working for a plumbing company, are you doing your plumbing in the office?

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

#253

Post by SilasX » Wed, May 02, 2018, 10:33 PM UTC

jp10558 wrote: post #251

SilasX wrote: post #65

Earlier quoted context omitted.

The stuff on page 62+ only explains why a quick, unambiguous test for how to classify is a good thing. I don’t think anyone was disputing that, and my comment certainly wasn’t. The closest it comes to addressing my points is when it talks of “evading wage and hour” laws. But that’s my point: Why do you count it as “evading” anything when you buy labor from someone who offers it as a freelancer, and that rate is under…

> “evading wage and hour” laws. But that’s my point: Why do you count it as “evading” anything when you buy labor from someone who offers it as a freelancer, and that rate is under the minimum? Working for less than minimum wage is against the law. Are you actually suggesting that minimum wage is a bad idea, and so of course the rest wouldn't hold up. In this case, a minimum wage is considered a premise of the entire…

>Working for less than minimum wage is against the law.

No, it's not. You can absolutely set up a proprietorship, and sell labor, such that the pre-tax proceeds per hour of labor are less than the minimum. That is legal. It's just not legal for an "employer" to be the payer of that income, hence begging the original question.

That's my whole point: why does this distinction exist?

It's pretty trivial to defend any tiny part of the system in isolation. The problem is to explain why you have this employer-contractor boundary. That needs more (as justified in my original comment) than "I don't want workers to be oppressed" or "I don't like businesses shunting costs onto the public".

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

#254

Post by Veelox » Wed, May 02, 2018, 10:43 PM UTC

s73v3r_ wrote: post #252

Veelox wrote: post #248

Earlier quoted context omitted.

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

I completely disagree. The normal Uber workplace for developers is the office. How many of the drivers do you think have ever set foot in that office? To put it another way, if you're a plumber who is working for a plumbing company, are you doing your plumbing in the office?

> That argument or some other one that is equally dumb on it's face but might work in a court of law

> equally dumb

I was defending why I think there is a 50% shot that Uber could make part B not apply. It seems like you think it is more like a 1% shot which you might be right, I am not a lawyer.

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

#255

Post by siegel » Thu, May 03, 2018, 1:21 AM UTC

SilasX wrote: post #253

jp10558 wrote: post #251

Earlier quoted context omitted.

> “evading wage and hour” laws. But that’s my point: Why do you count it as “evading” anything when you buy labor from someone who offers it as a freelancer, and that rate is under the minimum? Working for less than minimum wage is against the law. Are you actually suggesting that minimum wage is a bad idea, and so of course the rest wouldn't hold up. In this case, a minimum wage is considered a premise of the entire…

>Working for less than minimum wage is against the law. No, it's not. You can absolutely set up a proprietorship, and sell labor, such that the pre-tax proceeds per hour of labor are less than the minimum. That is legal. It's just not legal for an "employer" to be the payer of that income, hence begging the original question. That's my whole point: why does this distinction exist? It's pretty trivial to defend any ti…

There's a simple reason the decision does not provide the explanation you are looking for: that's not the role of the court. The California legislature, by statute, and the Industrial Welfare Commission, established that there needs to be a distinction between employee and independent contractor. The courts have the role of setting forth a rule consistent with California statutes and IWC wage orders that courts (and, by extension, the public) can use to determine whether someone falls into the "employee" or "contractor" category. It does not matter to the court WHY that distinction exists, except to the extent that why informs what test to use to determine who is and who is not an employee under state law.

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

#256

Post by PhantomGremlin » Thu, May 03, 2018, 1:24 AM UTC

jp10558 wrote: post #250

PhantomGremlin wrote: post #123

Earlier quoted context omitted.

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.

Half the time with FedEx you have no idea why a random truck is stopping to drop off a package.

Which "FedEx" do you mean? That's the problem with them, there are multiple entities sharing the name.

FedEx Ground was an acquisition and re-branding. They operate using "independent business owners". Want to deliver packages? Buy a route!

https://en.wikipedia.org/wiki/FedEx_Ground

https://fitsmallbusiness.com/fedex-routes-for-sale/

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

#257

Post by siegel » Thu, May 03, 2018, 1:24 AM UTC

paulsutter wrote: post #98

Animats wrote: post #73

Earlier quoted context omitted.

The material part is that it's clearer. That means most such decisions don't require litigation. The result will be that blatant violations of the law get resolved fast.

Such as? Uber seems in the clear (I direct the driver not Uber), I cant think of any material cases where this matters By the way, that’s really good for Uber drivers. If they had to be employees they would get paid less and couldn’t deduct many expenses

Not exactly. The prior test used in California already looked at who had the right to control or direct the work of the putative contractor. The new test requires the company to prove that it does not fundamentally control or direct the performance of work, as well as prove that the other 2 factors of the ABC test also do not apply.

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

#258

Post by SilasX » Thu, May 03, 2018, 3:45 PM UTC

siegel wrote: post #255

SilasX wrote: post #253

Earlier quoted context omitted.

>Working for less than minimum wage is against the law. No, it's not. You can absolutely set up a proprietorship, and sell labor, such that the pre-tax proceeds per hour of labor are less than the minimum. That is legal. It's just not legal for an "employer" to be the payer of that income, hence begging the original question. That's my whole point: why does this distinction exist? It's pretty trivial to defend any ti…

There's a simple reason the decision does not provide the explanation you are looking for: that's not the role of the court. The California legislature, by statute, and the Industrial Welfare Commission, established that there needs to be a distinction between employee and independent contractor. The courts have the role of setting forth a rule consistent with California statutes and IWC wage orders that courts (and,…

Courts commonly rule on intent, and laws generally have an intent discernable from the language of the legislation or the records of is legislative debate. This gives courts a way to disambiguate unclear cases like this one, and it's typically vital to have some intent to fall back on, since laws don't make sense otherwise.

These confused rulings are exactly what you expect in the absence of such a mooring. They can't give a reason why my rules A or B are absurd, except for whether they match some hard-to-parse guidelines.

Example: If the employer requires you to bring your own tools, that somehow makes you more of a contractor, even though that's a greater burden on the worker, but someone decided that such instances "feel" more like contractors. Exactly what confused governance and legislation look like.

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

#259

Post by Cody_Underlord » Thu, May 03, 2018, 9:47 PM UTC

scrumbledober wrote: post #19

greglindahl wrote: post #13

Earlier quoted context omitted.

This does sound like it would affect "try before you buy", unless the contractor has significant other work. Does anyone actually do "try before you buy" in California? It doesn't work in a hot job market, and the job market is currently hot.

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

http://paulbradley299.wix.com/tech-support-r-1

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

#260

Post by joshuaheard » Tue, May 08, 2018, 3:41 PM UTC

s73v3r_ wrote: post #227

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?

I don't know. The purpose of the law is not to confer benefits on one class or another. It is to accurately describe the rights and duties of relationships.