Hacker News Reader

Comment by dylanjermiah | Hacker News Reader

From the IRS: "You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed."

View on HN

>What matters is that the employer has the legal right to control the details of how the services are performed.

You can't just pick one bullet point and imply it's an open & shut case. It's a combination of factors.

If parents contract a painter to paint a mural in a child's bedroom and says specifically:

- I know you prefer acrylic paints but I specifically want latex paint

- I know your website portfolio had examples of light blue but I specifically want Pantone #2945 dark shade of blue

- I know you prefer to work 9-5 but I need you to work onsite from 5pm to 9pm because that's when I'll be home from work and can give live feedback as to how it's done

- I know that if I leave you to your own judgement, you'd prefer to paint Greek & Roman nudes but I need this room to be rated G so if you can paint a depiction of Mickey Mouse fighting Batman, that's what I'm looking for.

- ... and so on...

The homeowner can be excruciatingly specific about how & when the work is exactly performed but most reasonable people will not insist that the painter is an "employee." It takes more factors than just control of the work method.

Maybe Uber's combination of other factors does ultimately mean drivers are employees but your extraction of one IRS guideline is not convincing.

Perhaps I should have been more clear as to have prevented assumptions. I do not think that ride sharing drivers are employees. The IRS's definitions are not clear, objective or definite. They're open to interpretation and abuse.

Uber is not a "ride sharing" service.

Agree. What's a more appropriate term to use?

Taxi service.

Taxi arrangement service.

They don't actually taxi you.

If Uber drivers are classified as employees, not contractors, then Uber does actually taxi you. That's the issue at hand.

Unlicensed taxi service, with the pros and cons that implies.

Right - the parent / painter job is going to fail on the "ongoing relationship" part of being an employee - once the painter has painted the room they go off to another job.

Uber on the other hand, definitely has an ongoing relationship with their drivers, as well as specifying how they work in fairly detailed ways.

>Uber on the other hand, definitely has an ongoing relationship with their drivers,

But Uber drivers can also have simultaneous business relationships with Lyft, and be a NY taxicab driver, and offer driving services on Craigslist, etc.

Employers such as Apple Inc or Microsoft would not tolerate an employee working simultaneously for Google Inc.

The folks contending Uber drivers are employees have valid points. However, Uber also has valid bullet points that the drivers are contractors. I don't know which way the scales tip. I guess all this dialogue in the media, the local governments, and maybe the IRS is trying to sort it out.

I can work at McDonalds in the mornings and Burger King at night.

And does the worker at McDonalds and/or Burger King bring his own grease fryer, bun warmers, and soda dispensers?

In contrast, Uber/Lyft drivers own/lease their own cars. Who provides the equipment to do the work is also another IRS factor.[1]

And btw, I don't think sniping with one liners that biases one viewpoint is quality discussion.

[1] see item #14: "FURNISHING OF TOOLS AND MATERIALS."

https://www.mdc.edu/hr/Operations/AFS/IRSFactorTest.pdf

Pizza delivery drivers bring their own vehicles and are still considered employees.

The actual product is arguably the "pizza" much more so than the "driving" evidenced by the fact that customers themselves will sometimes drive to Papa John's or Dominoes to pick up their own pizzas. In that framework, the standard would be for the pizza driver to also provide his own pizza dough, pepperoni, and baking ovens. If the pizza companies eventually figure out how to use flying drones to drop off pizzas and eliminate drivers, I'm sure the customers would be fine with it. The customers weren't really "buying the driver"; they were buying the pizza with the convenience of delivery.

With Uber/Lift, the "driving" itself is 100% the product.

And why does the discussion continue to be "one bullet point" at a time instead of a combination of factors?

If parents provide all the equipment & materials for the babysitter (infant formula, diapers, toys, Walt Disney DVDs, etc) along with the premises to do the work (the parents' home), does that make babysitter an employee?

If a dog owner provides the leash, the pet treats, and the back yard for the pet sitter to walk and exercise the dog, should the pet sitter be classified as "employee"?

Is it one factor or a combination of factors?

No I think you're wrong there.

The job description for a Pizza Hut driver is to drive no different to an Uber driver. Whether they are delivering pizza or people is irrelevant. It's all about the nature of the work.

>It's all about the nature of the work.

No, it's not _all_ about the nature of the work. Again, that's just applying one-dimensional criteria. To re-emphasize: is the employee/contractor classification just one factor or a combination of factors?

The concept of "driving" does not automatically mean an "employee" relationship. Many (probably most) 18-wheel truck drivers are independent contractors. Many drivers of tour & charter buses are subcontractors as well. Those charter bus drivers transport people like Uber drivers too.

Likewise, the "nature of photography work" does not instantly categorize it as employee vs freelancer. Sports Illustrated had some staff/employee photographers. But National Geographic has freelance photographers.

Another most obvious example to HN would be the existence of both contract and employee programmers.

It isn't just about the "nature of work".

It isn't just about who provides the equipment.

It isn't just about who decides the hours of when the work is performed.

It's isn't just _one_ criteria.

I buy my own notepads and pens that I use in my job. Does that mean I'm an independent contractor? Half the employee devs I work with use their own laptops out of preference.

Some form of BYOD policy is pretty much the standard at most companies outside of say finance or insurance these days. So surely this rule would be out of date.

The only reason you can't work at Apple and Microsoft simultaneous is because of the overlapping working hours.

I worked at Apple years ago and nothing was in my contract to say that I couldn't work for another company. Because we all do this when we are running startups on the side.

>The only reason you can't work at Apple and Microsoft simultaneous is because of the overlapping working hours.

I worked at Apple years ago and nothing was in my contract to say that I couldn't work for another company.

It is naive to think one can work at both companies simultaneously without repercussions if the manager(s) find out. The managers would not allow an employee to have a badge to the premises and access to the employees' email system at both companies. It would be legitimate grounds for termination. The employee can't sue for wrongful termination because the concepts of "protecting proprietary information", "trade secrets" etc are well-tested and upheld in court.

An employee can certainly resign (or get fired) from one company and then work for the other company but it is unrealistic to say those companies would allow concurrent employee relationships.

Yet Steve Jobs was able to run Apple and Pixar simultaneously.

Is it not true he owned those businesses? He was majority shareholder in Pixar until 2006.

So you're saying the uber driver is an employee of the passenger? I often tell them which route to take. I guess passengers also have control over whether the driver keeps his job (via ratings) too.

Define 'controlled'. If I hire a plumber to come fix my toilet, I am saying, You are going to fix my toilet, and please do it this way. Does that make the plumber my employee?

I didn't create the law, I don't think I'm qualified to define anything.

I do however think it's intentionally hazy and open to interpretation.

If you find yourself telling a plumber which specific way a toilet should be fixed, you are either an employer, or should take some engineer pills.

http://dilbert.com/strip/1990-09-13

Reply on news.ycombinator.com