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hardwaresofton

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 see people in this thread wondering how it'll affect companies like Uber/Lyft/whatever -- and I think it will actually be good for them, because now they'll use some of that warchest to hire the the best lawyers to figure out exactly how to best navigate the law (in california at least), and write their contracts in whatever way that best makes sure all 3 are present and they still get a healthy supply of drivers. Other smaller gig economy companies will then follow that lead so they can stay afloat and not purchase the legal work done by Uber/Lyft.

If I was invested in Uber/Lyft, I would welcome this, because it removes an avenue of risk, stabilizing the lawsuit risk.

[EDIT] - In the article there's a link to the decision from which the test comes from:

https://www.bloomberglaw.com/public/desktop/document/Hargrov...

View on HN

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 argue that the normal workplace is actually the streets. Uber/Lyft could of course argue that it's HQ, but given the number of drives on the street and the number of employees at HQ, this is no slam-dunk for the companies.

Background: I am a (former) lawyer who worked on employee/contractor issues in the realm of tax law (which uses different tests than state law).

Also the drivers aren't supplying a service "outside the business's normal variety." They're supplying the core Uber service.

EDIT: They might be able to redefine themselves as purely a software company for the drivers to remain contractors.

Well, I suppose Uber would argue that their service isn't the providing if rides, but rather, the matchmaking of independent ride providers to prospective customers, and facilitation of payment. (Not that we should believe them.)

That would be difficult to reconcile with a self-driving car project (unless they didn't own or operate those cars themselves).

I think a distributed ownership model is actually the most likely model for self-driving cars given the capital investment required.

So are property owners employees of AirBnB?

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.

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.

"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.

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.

It says "... or workplace". Uber drivers don't work in Uber's buildings.

This is not quite an exclusive or.

The service is not outside of business standard variety. Other cab companies have client driven matchmaking systems too now... They also employ office workers. The workplace for a cab driver is his car.

Therefore, what Uber does would make them a cab company that abuses contractors instead of employing employees.

However, the key point here is the test A. If Uber is specifically telling the drivers to pick up specific fares or otherwise forcing them to pick up fares beyond the number and/or time, they are actually employees not contractors. Fudging with scoring system to fire those who do not follow such orders indirectly could be construed as such as well.

Considering the actual text posted by jaggederest in another comment, it does seem to be an exclusive or:

"the services provided were either outside the usual course of business or performed outside of all the places of business of the enterprise"

Regarding other cab companies, most cab drivers have been traditionally classified as contractors. The idea that Uber introduced this practice is propaganda.

That isn't an exclusive or; the English language lets that be interpreted as either an xor or or, and the reasoning of the context shows it to be an or.

To iterate; the statement sets out two conditions, either of which are sufficient independent of the other, and claims that each of a number of services met one of those conditions.

Thanks, I'm not a native speaker, and I thought either/or was a xor.

I think there is valid confusion to be had in interpreting this statement.

Usually, when a statement of "choose either x or y" is made, then the only valid options are exclusively x or exclusively y (None and Both are not valid).

Though, when the statement of "if either x or y then do action" is made, then the action is done with any of three valid options: x, y, or x and y (only None is not valid).

To change the second statement to mean the first, you could say "if only x or only y then do action." The "only" cancel Both as being an option.

Native speaker here.

Either-or does imply exclusive-or, but it is often used less formally, so you will sometimes see it made explicit as "either x or y, but not both."

> Fudging with scoring system to fire those who do not follow such orders indirectly could be construed as such as well.

Surely companies must be allowed some method to ensure the quality of work they desire.

No one's saying they can't be allowed such a method. But it may be the case that for persistent business relationships doing so may mean an employee/employer relationship rather than the relationship between a business and an independent contractor.

I believe the distinction lies in describing the final work product vs. describing means and methods. If you have an outsourcing contract with an independent contractor, you're allowed to specify (usually via specifications that are appended to the contract) performance objectives and quality of the work, and what the final work-product looks like. If you stray too far or too often over into specifying the means and methods by which they're supposed to achieve those results, then you're treating the contractors like employees, which actually come to think of it, is already sort of a no-no under most current contracting arrangements I'm aware of. Although there are always gray areas... for example what if you're turning over source code at the end of a project? Then your writing of the code is both a method and a final work-product. Some attorney needs to earn their keep and make sure everything is all laid out nice and kosher in the contract so things don't get murky.

A scoring system of the resulting work is fine. A scoring system that effectively encodes how they did the work is problematic because it means they company is now dictating how work be done, which is an employee relationship.

E.g. It's the difference between: a scoring system that uses a coding style standard and unit tests on the resulting code to build a score; and a scoring system that uses hours logged into the computer manipulating the IDE and lines of code written per hour to build a score (the contractor could use that as a way to score himself and for billing, but not the company).

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 people find car companies" and not "giving people rides."

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-control measures, such as requiring the independent contractors to abide by certain terms or meet certain standards, they are pretty hands-off in terms of HOW the recommended plumber fixes the clogged drain, or HOW the recommended carpet cleaner schedules its appointments.

But with Uber/Lyft, the HOW is much more like an employee relationship.

The problem with that argument is Uber will kick people off the platform. They manage the relationship between customers and drivers instead of simply facilitating communication and payment.

By comparison most point of sale (POS) venders just provide hardware and software don't involve themselves in the actual business enough though they may provide phone apps etc. Marketplaces like App stores or Amazon get more involved, but they don't dictate prices.

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.

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 never said that I'll "find a car service on Uber".

So yeah, I agree that Angie's List is clear of B and Uber/Lyft much less obviously so.

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).

Being an app company and not a company that gives rides is a strange rationale for investing in self-driving cars. Will the robots be considered independent actors too?

I agree with your assessment (you failed to mention leeway with which rides to take, but maybe it doesn't matter) -- Uber/Lyft would definitely not want to lose control on how their drivers perform their services since it's directly counter to part of their value proposition/brand.

I pessimistically assume, however, is that assuming the A/B fight is a lost battle for gig economy compnaies, the next step is to limit these employees to being part-time with some kind of <20 hours per week or something rule.

Background: I am a spitballing layman

> I pessimistically assume, however, is that assuming the A/B fight is a lost battle for gig economy companies, the next step is to limit these employees to being part-time with some kind of <20 hours per week or something rule.

How does 20 hrs/week factor in here? I didn't see a reference in the Bloomberg article. Though this is actually a good point — if time spent working isn't a factor, then someone who works for Uber, Lyft, Grubhub, and Google Express could end up as en employee of all of these companies. That seems like kind of a weird result.

I mentioned that since hours worked is normally a big distinction between a "full time" employee and "part time" employee for traditional roles, which have different employment costs -- It's not mentioned in the article

Part-time workers don't usually get benefits, which is the main reason Uber is terrified they'll be classified as employees.

Walmart used the part-time distinction to great effect to increase their profits and decrease workers wages. Much has been written about this.

Not a lawyer, but I would think they could require drivers follow a reasonably direct route but not require the specific route offered by the driver’s app.

And in general quality issues can be handled by ratings. If a driver takes bad routes or has a dirty car they’re going to get complaints / bad ratings.

I’d be surprised if they couldn’t offer drivers “suggestions” on how to receive good ratings.

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

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.

I guess the question is whether the companies can allow the drivers enough freedom to make them contractors, while still retaining enough control to maintain service standards. Letting the drivers set their own prices, perhaps through some sort of bidding system, might go a long way.

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

Uber?

What about the Post Office??

This is going to create an interesting situation for the supremacy clause.

The test, as stated in the decision:

(1) the employer neither exercised control over the worker, nor had the ability to exercise control in terms of the completion of the work;

(2) the services provided were either outside the usual course of business or performed outside of all the places of business of the enterprise; and

(3) the individual has a profession that will plainly persist despite termination of the challenged relationship.

So a 1099 developer who is required to participate in daily standups will likely qualify as an employee I presume?

Not so sure about the US, but having seen how contacting developers are working in Canada and the UK, I would say that contracting devs are almost always acting as employees.

In many tech companies you can't even tell the difference between who is an employee and who is a contractor, unless you ask.

In every role I was a contractor, there was essentially no difference between me and employees. Even had gigs where I was in one cube over, had a company badge with my photo on it, and had an @companyname.com email.

There are a few differences: employees are invited to the meeting where quarterly financial performance is shared; they have to do the yearly goals; they are invited to the the year end holiday lunch; and they sometimes get a bonus. The last one is contractors are first cut when there are financial hard times.

Many employees skip the financial meeting. Contractors are often ignored when they sneak into the holiday lunch. For most contractors the bonus is the biggest difference, and the courts tend to agree that is not enough and force the contractors to get the bonus as well.

One company (Sabre) actually had a department (development team that supported HR) holiday lunch/outing. Everyone on the team went, contractors and employees. (Don't get me wrong - I'm glad I had a great manager who would do that ... but honestly the only difference I really ever felt was my paycheck was signed by someone else)

Contractors can go to team building actives. When the activity cannot be called team building they can't.

Aren't the key elements to being independent in setting your work hidden anyway.

Things like knowing when the contract ends aren't visible.

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 how a couple projects went.)

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 someone is a contractor is they leave after a few months, or they retired and still work there. You can't necessarily tell by their work output.

If an employee and contractor are digging ditches the only difference is likely to be in the paperwork; though possibly the contractor uses their own PSE and tools, but not necessarily.

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.

A collegue in the UK was forced^Wencouraged to start a limited and contract for his former employer. As far as I can tell that was purely a scheme to shift liabilities and to pay less taxes.

There is a big case in the UK about the BBC forcing the "talent" to set up self employed companies - the tax man didn't like this and is fining people hundreds of thousands of pounds.

Though as presenters they have a better chance of beating ir35 as they can legitimetly work out side of the BBC in a way that a developer cant - eg pa's at events etc

Yes. This has been the case in California for some time.

EDIT: typo

I see no reason to think that.

Microsoft has gotten slammed in the past for this sort of thing by the IRS:

https://corporate.findlaw.com/human-resources/employee-or-in...

The IRS' concerns aren't exactly the same as the state law concerns, but the lists they use to qualify contractor versus employee seem pretty similar, just with the CA state law test being more simplified (though IANAL, the more simplified CA state law list seems no less likely for companies to run afoul of with this sort of relationship).

Why? Seems to violate 2 or 3 of the ABCs.

- dictate how job performed

- dictate when performed, on a very regular basis

- oftentimes work is identical to other teams members, only difference is pay structure

I think that B is going to be very difficult, if not impossible, for Uber/Lyft to overcome. The act of driving is the core business operation for ride-sharing companies; it’s the fundamental means by which they create value. I can’t see a good argument for how that could possibly fall outside of their “normal variety”.

They could potentially argue that their core business is creating a marketplace where riders can find drivers and not the driving itself. That would classify the office workers as employees and the drivers as contractors.

Could someone please provide examples for A and C? I understand B, but I don't fully understand A and C.

For A, does that only mean working hours (i.e. can't make someone work 11am-7pm EST)? Does that affect scheduling milestones or tasks to be completed?

For C, what does 'independently established role' mean? Like job title?

Thanks in advance.

A: You hire an external contractor to do work (roofing, pouring concrete, creating a website, etc.), the contractor should have full autonomy (and liability) regarding how, when, and by whom the work is done--the contractor is responsible for the end result. A good (bad) example might be a language school--just the type of business that often operates in this grey area. A language school might 'hire' a teacher, technically an independent contractor, to do teaching work, yet nonetheless treat the teacher as an employee, specifying exact teaching times, methods, books, locations, etc., closely monitoring performance (as with an employee), and even integrating the person into an internal hierarchy (so the boss becomes a boss rather than a client). True autonomy (freedom from control) in this case would be the freedom to decide upon the times, locations, methods, materials, etc. and a dependence upon own's own independent expertise while performing the contracted duty.

C: The contractor (ideally) works for many companies (i.e. has many clients) and not just for you. Is the contractor (individual or company) independently established? When determining C, the authorities might look specifically at things like whether the contractor has an established business location, whether the contractor has employees, how much work the contractor does for any individual client, etc.

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 would be a surprising change for consultants and trainers if it were about location, but it seems to avoid that.)

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.)

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.

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.

If you are an IT company and all your work is done through contract developers, perhaps you _are_ going against the spirit of the law.

Labor law is meant to protect those in the employer <-> employee relationship, and most contractual work explicitly weaken this relationship a lot. So contractual work really shouldn't be the norm in a business.

If you can't provide your main business without this set of people, then those people are probably your employees?

> If you can't provide your main business without this set of people, then those people are probably your employees?

That's not the case. A home builder may exclusively hire various sub-contracting companies to assemble a home, put in electricity, add finishings, etc. Those sub-contractors contract for many other home builders or landlords and are not employees of the home builders. That is the case, even though a home builder would go out of business without the sub-contractors.

Here is a different example. If a programmer works for one tech firm which calls the programmer a contractor, then if the programmer also create a personal website or side project for income, they may have established themselves as contractors.

I think there's a distinction here, which is often lost due to similarity of the language.

One class is "contract employee". These people are basically treated as second-class employees (with just enough arbitrary restrictions to enforce that) of the company they effectively work for.

The other class is "employee of a contractor". These people are real employees of a company that hires them and provides them benefits. The company they work for then sub-contracts to various other companies and uses those people to fulfill the work under that contract.

Since both cases use the term "contractor", and the former is far more common in the minds of everyone here, its easy to get the two distinctions confused.

Maybe we need better terminology?

That's an interesting point.

In my experience "contract employees" normally work for a third party company that gets contracted by the hiring company. Then, the third party contracting company pays their employees after deductions and taxes. Otherwise, if not working for a third party company those individuals may be classified as independent contractors. When they are classified as independent contractors there already are limits on the number of hours that can be worked before they get turned into employees.

> even though a home builder would go out of business without the sub-contractors. //

They wouldn't, because they could drop in a replacement contractor. In your example the house builder relies on contractors but not the specific set of people doing the contracting (as in the parent), so any contractor can be replaced readily from the pool of contractors.

In theory a contractor can send someone else in to do the work, as long as the work in the contract is completed. If you demand a specific person to do work then they're likely an employee.

> In your example the house builder relies on contractors but not the specific set of people doing the contracting (as in the parent), so any contractor can be replaced readily from the pool of contractors.

All you've done is restate my comment.

> In theory a contractor can send someone else in to do the work, as long as the work in the contract is completed. If you demand a specific person to do work then they're likely an employee.

That theory is wrong. If Business A depends upon the specific person B, and B does other work outside of A, then B is not necessarily an employee of A. There are many people with specialized knowledge that others do not have. The acquisition of that knowledge doesn't make them employees. It makes them valuable.

Well if in the UK I can get 3x my FTE rate as contractor its definitely in my interest.

Also some type of lawyers are self employed if it's ok for a Barrister why not me.

The problem is when you get mcjob companies who abuse minimum wage staff - its well paid individual contractors that get hit.

> 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 the stores could buy the same food from different farmers? That's just as true of the IT company and its contract developers.

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 support issue? You might actually be an employee

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

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.

There’s also a pretty big difference between a Corp to Corp relationship and a 1099.

But that is wildly different. A farmer provides goods that hold value for almost anyone. Once they have produced a bushel of apples, that bushel can be bought by anyone. On the contrary, once a software developer has produced some code, it only holds value for the specific company that order this specific piece of code.

Not always. Consider two scenarios: (1) adding a feature to an existing product that the company sells. (example: writing a better grammar checker for MS word). (2) contracting with the developer of a small open source embedded database to add a specific SQL feature that you wanted to use in your web backend.

Honestly, most contracting developers are actually employees, and this position is just used as a way to skirt tax and labor laws. The abuse here isn't from the court, it's from devs and businesses.

Devs don't care simply because the pay is high enough and there are a ton of jobs available.

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 sweet billability streak... dammit, the humiliation...

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.

Judicial overreach? Someone has to interpret the law. The original standard was judge-created and the refined over several decades. It was a mess and gave conflicting results in quite similar cases. This, no matter what you think of the outcome, is unquestionably a giant leap forward in clarity.

Appeal to whom? This ruling/guidance was provided by the California Supreme Court about how independent contractors are classified by the state.

Yeah exactly. This is a question of state law and the Cal SC is the final word on what state law means. The only exception is if the USSC agrees that the state law violates some provision of the US Constitution and that’s extremely rare. Not going to happen.

Still, that would be a case about federal law (the Constitution).

See my comment at https://news.ycombinator.com/item?id=16966621 ; I think B is misreported here. It's about type of work, not place of work.

That said, my (non-lawyer, pre-coffee) reading of what B actually says is that while it won't turn consultants into employees of the place they consult for, it will turn specialists into employees, whether or not they work on site. If a company occasionally submits patches to an open-source project they use, and then they hire a maintainer full-time for a few months, that sounds like B would require them to hire the maintainer as an employee.

I should have posted this earlier, but buried in the bloomberg is the decision:

https://www.bloomberglaw.com/public/desktop/document/Hargrov...

I honestly am not 100% sure of the ramifications, but I am sure that these companies are going to act in their best interest, and with the current imbalance in the labor market (some might argue that the markets are right where they should be), I'm relatively certain that will mean employees being turned into contractors, or worst case they'll take the walmart route and make everyone work "part-time", drivers will think they're pulling a fast one by working for more than one company but they'll really just be driving their own wages and benefits down.

Of course companies are going to act in their best interest. But this ruling does not change that, because companies have been acting in their best interest all along.

If anything, this makes it easier for contractors to prove they ought to be employees.

Well, you've rehashed what I said -- That was meant to be to all the people wondering how this ruling would affect companies like Uber/Lyft/other gig economy companies.

The answer is it won't affect them, because they'll do what it takes legally to act in their best interest, like they have always done (and have had way more resources than the average worker to do). So nothing will change, outside of a likely reduction in lawsuits for companies most able to navigate the new legal climate.

The answer is it won't affect them, because they'll do what it takes legally to act in their best interest

But how does that follow? You're essentially saying that no law can ever affect them, since they'll always "do what it takes legally to act in their best interest".

I didn't say no law, I was remarking in the very specific context of this one.

What I was trying to say is that this legislation is unlikely to affect the most successful gig economy companies very much, if at all, because they'll likely find the best way to circumvent it. Even if they don't there's already very large corporations doing their best not to pay employees higher wages by taking advantage of the differences in protection for part-time and full-time classified workers.

Basically, the most upside I see for the worker with this legislation is every driver in a company like Uber needing to become an "employee". Let's assume that happens. I would expect Uber or any of the other companies to immediately take steps to reconfigure to evade this -- which I think in the "worst" (for the company, as in they weren't able to evade well) case is accepting employees but limiting them to part-time status -- it's already worked very well for companies like Walmart (and badly for the communities and workers there).

On the other hand, there is also an upside for Uber/gig economy companies -- the reduction in risk in the legal arena makes them much more attractive as an investment. Up until now, it's been an open question -- this will do much to close it. That benefit will ripple to the other lesser gig economy companies, because they will have a playbook to follow.

I got that you were talking about this law, but what I was missing was what you thought made this particular law different than others which would affect them. Now I think it's clearer.

That said, I'm not sure I agree that part-time wouldn't be that bad. It works for Walmart because their employees have low fixed costs for working (essentially just the commuting), so working fewer hours is still worthwhile.

But Uber depends on drivers buying new cars, which often they pay off by driving many hours per day. Once you limit that, they will lose everyone except the casual drivers.

The alternatives I see to this are not great for Uber: they either have to (1) buy and maintain their own fleet, or (2) accept competition so that drivers can fill up their daily schedule by working for multiple companies.

Hmnn, I think the fixed costs are only higher if you assume that most Uber drivers buy new cars to Uber -- is that true? If they don't then the fixed costs for an Uber/Lyft driver would be even lower than Walmart right?

I definitely agree with the rest of your comment -- but I think the affects of (1) and (2) might actually be net positives for Uber:

(1) More fleet for their self-driving efforts seem like not a bad thing, also I don't really want to do the numbers but the 10k spent in a year on the cars as capital instead of employee benefits might look at lot better on a balance sheet (especially tax wise).

(2) I think this is only true if the supply stays the same as now -- when people hear "oh uber pays more now", I think the supply might increase a little. The increased cost per worker will be spread over all the competition, and as long as the per-worker cost isn't too high for part-time vs contractor.

As an aside to all this, uber has also started (long ago?) charging people what it thinks they can afford so that's also a factor, it's not even a single consistent percentage anymore (if it ever was).

I think most buy/lease new cars, but it might be outdated; I think Uber used to have more restricted rules on the age of cars, but it seems nowadays they can be 10-15 years old.

(1) "10k spent in a year on the cars as capital instead of employee benefits" - Right, but nowadays they are spending on neither :)

(2) Right, but that means Uber can't take over the market. That's a pretty big blow.

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