The Gig Economy Is Being Sued to Death • Hacker News Board

Re: The Gig Economy Is Being Sued to Death

#151

Post by will_brown » Wed, Feb 18, 2015, 6:51 PM UTC

CPLX wrote: post #147

GauntletWizard wrote: post #114

Earlier quoted context omitted.

Huh; This is the best argument I've heard for Uber drivers being Contractors rather than Employees. In fact, it's a pretty good argument for all of 'gig culture' being contractors, since you can accept and reject jobs. I'd previously been strongly on the other side.

In my personal opinion, the driving services are a legitimate and genuine gray area. A person who is a professional driver, owns their own equipment (the car of course), can pick their own shifts and accept or reject a ride, can drive to different areas if they want, and does in fact have the ability to solicit work from multiple customers, could be considered independent. I can also see the flip side of that, but it…

I agree with you regarding driving services being a genuine gray area.

>A person who is a professional driver, owns their own equipment (the car of course), can pick their own shifts and accept or reject a ride

These would all be arguments towards a proper Independent Contractor relationship. However, as you highlight you see the flipside, which might include the following arguments. One could argue while the driver supplies the car/insurance, a service such as Uber provides not just software but other equipment such as the iPhone that must be used to facilitate rides/payments (why can't a driver use their own phone?). Driver's may create their own hours, but Uber pays "bonuses" (i.e. hourly wages) for drivers to drive at certain times. Then there are issues such as mandatory meetings and training. I have had a driver tell me Uber pays attorney's fees when drivers are arrested for violating taxi laws.

All things being equal, it is entirely foreseeable that different Courts could rule differently given the same facts - the epitome of genuine gray area.

Re: The Gig Economy Is Being Sued to Death

#152

Post by will_brown » Wed, Feb 18, 2015, 6:57 PM UTC

supercanuck wrote: post #94

will_brown wrote: post #22

Earlier quoted context omitted.

>The rules, such as they are, seem fairly straightforward. The laws are anything but straightforward. For starters there are 50 States with each one having different laws. Take Florida where I have personally represented employers and employees/Independent contractors in these types of matters. The FL case law establishes, what in my opinion is the very worst kind of law, a factors test. So essentially there are a nu…

Are there any Florida "Factors" that are directly contradictory of the IRS's 3 Common Law categories?

Not contradictory as far as I am aware.

The IRS 20 factors: http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employ...

Florida 10 factors, Keith v. News & Sun Sentinel Co., 667 So. 2d 167 (Supreme Court of Florida, 1995), for purposes of determining worker's comp eligibility:

• The extent of control that the employer may exercise over the details of the work; • Whether or not the individual employed is engaged in a distinct occupation or business; • Whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; • The skill required in the particular occupation; • Whether the employee or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; • The length of time for which the person is employed; • The method of payment, whether by the time or by the job; • Whether or not the work is part of the regular business of the employer; • Whether or not the parties believe they are creating the relation of employer and employee; and • Whether the individual is or is not in business.

Re: The Gig Economy Is Being Sued to Death

#153

Post by Animats » Wed, Feb 18, 2015, 9:28 PM UTC

cookiecaper wrote: post #134

Animats wrote: post #84

Here's the IRS's basic test for "employee"[1]: * Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job? * Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.) * Type of Relationship: Are there written cont…

Your interpretation of "behavioral" is flawed. Uber drivers are not told "when and where" to go. They are offered the opportunity to go somewhere and pick someone up. It is completely at their convenience and option to do this; they will suffer no privation if they fail to pick up the offered lead. It's not like a traditional employer-employee relationship, where the employer buys time from the employee and directs i…

"It is completely at their convenience and option to do this; they will suffer no privation if they fail to pick up the offered lead."

No. Pando Daily writes "Uber drivers are, after, all independent contractors ... On the surface, it seems they should be free to accept or reject any ride they choose. According to forum comments, however, Uber drivers are required to maintain a minimum 80 percent ride acceptance rate to remain in the company’s good graces – the best performers exceed 97 percent, the company tells its drivers. Ignore too many inbound ride requests when you are the closest vehicle and the result could be some combination of reprimand/probation, lost bonus income, or, in extreme cases, deactivation of the driver’s account."

"There is no boss to call Uber drivers and say "Please, you are killing us by not picking up your shift tonight".

Yes, there is, although it may not be human. It texts, bugging drivers to get out there and drive during "surge" periods.[2]

[1] http://pando.com/2014/09/04/uber-continues-to-screw-its-part...

[2] http://uberpeople.net/threads/text-messages-from-uber-are-ou...

Re: The Gig Economy Is Being Sued to Death

#154

Post by bsder » Wed, Feb 18, 2015, 11:15 PM UTC

murbard2 wrote: post #144

bsder wrote: post #118

Earlier quoted context omitted.

Except that there a some quite good reasons why we do things like regulate cabs. You don't get take make statements like this without discussing why the same thing which happened historically that led to the current laws won't happen again. If you don't regulate them, you wind up with a race to the bottom and have unsafe cars, untrained drivers, lack of insurance, etc. And, gee, once Uber wasn't paying top dollar to…

The thing that happened historically is that cabs lobbied for licensing to cut the competition. Do you have any evidence regarding your safety claims?

History of taxis before the Haas Act: http://www.capitalnewyork.com/article/politics/2013/01/73990...

"n 1932, 16,732 cabs roamed New York City streets, according to taxi historian Graham Hodges’Taxi! A social history of the New York City cab driver.

The competition “was merciless,” according to Hodges, and “Many cabbies turned to petty crime to help make ends meet.”

There were strikes, and there were fare wars."

The solution isn't to wipe out the medallions. The solution is to issue more until you achieve the balance you seek.

Re: The Gig Economy Is Being Sued to Death

#155

Post by murbard2 » Thu, Feb 19, 2015, 7:11 PM UTC

bsder wrote: post #154

murbard2 wrote: post #144

Earlier quoted context omitted.

The thing that happened historically is that cabs lobbied for licensing to cut the competition. Do you have any evidence regarding your safety claims?

History of taxis before the Haas Act: http://www.capitalnewyork.com/article/politics/2013/01/73990... "n 1932, 16,732 cabs roamed New York City streets, according to taxi historian Graham Hodges’Taxi! A social history of the New York City cab driver. The competition “was merciless,” according to Hodges, and “Many cabbies turned to petty crime to help make ends meet.” There were strikes, and there were fare wars." The…

So the argument is that cabbies weren't making enough money and thus had to supplement their income with petty crime ? Rubbish.

First of all, the medallion system does not raise the pay of cab drivers in the long run, since those medallions are eventually traded and leased out.

Second, there are plenty of jobs which pay very little, and somehow this is not brought up as a concern.