> I don't think that a common sense definition of what an "employee" is includes "show up to work whenever you want, take whatever breaks you want, knock off whenever you want, show up wherever you want,

from the article:

> Uber and lyft have hung their legal hat on the idea that drivers are not workers because they have flexibility. This has never been the criteria on which courts have ruled if workers are employees.

That the article which makes a claim to which I object makes an additional (unsubstantiated/uncited) claim that their former claim is true is not independent evidence, IMO. (see also: proof by repeated assertion)

Excerpts from the IRS "20 questions" test of employee vs contractor [0]:

Work for multiple companies. People who simultaneously provide services for several unrelated companies are likely to qualify as independent contractors.

Flexibility of schedule. People whose hours or days of work are dictated by a company are apt to qualify as its employees.

Demands for full-time work. Full-time work gives a company control over most of a person's time, which supports a finding of an employment relationship.

Need for on-site services. Requiring someone to work on company premises— particularly if the work can be performed elsewhere—indicates a possible employment relationship.

Method of payment. Hourly, weekly, or monthly pay schedules are characteristic of employment relationships, unless the payments simply are a convenient way of distributing a lump-sum fee. Payment on commission or project completion is more characteristic of independent contractor relationships.

Provision of tools and materials. Workers who perform most of their work using company-provided equipment, tools, and materials are more likely to be considered employees. Work largely done using independently obtained supplies or tools supports an independent contractor finding.

Realization of profit or loss. Workers who receive predetermined earnings and have little chance to realize significant profit or loss through their work generally are employees.

I acknowledge that there are other tests which lean towards employee, but it's far from slam dunk, settled law IMO, and flexibility is quite obviously one factor that courts consider.

[0] - https://www.oregon.gov/ODA/shared/Documents/Publications/Nat...

I think you misunderstood how this is considered 13/20 of these items point to employees with several others like Level of instruction being arguable as it’s highly directed.

Anyway, these are employe: Amount of training, Degree of business integration, Extent of personal services, Control of assistants, Continuity of relationship, Sequence of work, Requirements for reports, Method of payment, Realization of profit or loss, Work for multiple companies, Availability to public, Control over discharge, Right of termination

For clarity:

Work for multiple companies at the same time: Not simultaneously, Uber actively excludes people from working for multiple companies while logged into their app, so this counts on the employees side. Even just penalizing people for rejecting rides is treating them as employees.

Realization of profit or loss Uber pays people based on the trip in such a way people can’t become significantly more efficient and thus increase profit for a trip.

PS: Degree of business integration is one of the most damaging, Uber has zero business model without drivers. But even Amount of training suggests employees as you don’t require a training course from your plumber you expect them to be able to solve your problems not work as part of your system.

It would be interesting indeed if uber was somehow specifically prohibited from penalizing drivers for rejecting rides. That and the ability to set notifications when rates reached some preferred threshold that they were interested in. Everyone could set a reasonable threshold and hold off until it was met.

This is the single most critical issue for Uber’s long term viability.

If Drivers can work for multiple companies at the same time Uber loses almost all leverage over drivers and thus can’t develop a long term competitive advantage. It’s a 50+ billion dollar issue for the company.

In my reading, basically every one of those points to Uber/Lyft drivers being contractors...

Please read the article, which discusses a California Supreme Court ruling on this very topic. Right now, you got like a paragraph in and went to commenting. That's not helpful.

(I did read the entire article before commenting.) A California Supreme Court ruling seems to have no bearing on whether Uber and Lyft "have a right to exist".

At most, that ruling would affect whether or not they can operate as today within California.

Don’t accuse people of not reading the article. It’s against the site guidelines.

A question: are those criteria part of a definition or hints?

Possesion of certain amounts of illegal drugs hints that someone's a dealer, but it's not the definition. Selling is.

The real definition of employee seems more related to a higher dependence on the employer.

Looking closer at the points you quote gives a different vision. As an example: owning of tools and materials is actually a burden for the worker. A car, including maintenance, is a significant financial investment. Forcing workers to provide them doesn't make them less dependent on the company, on the contrary.

Similar objections can be put on the rest of criteria. With realization of profit I agree, but are you sure that works well everywhere and for everybody? I suspect that's not the case outside rich areas.

I didn’t quite get that paragraph, because flexibility of schedule is an important criteria for determining if someone is an employee or a contractor in most of the the US! (In California this isn’t true as of fairly recently, but most of the rest of the country still uses a 20-point set of factors that includes schedule flexibility)

https://www.oregon.gov/ODA/shared/Documents/Publications/Nat...

"Well, actually..."

Lots of companies are very flexible about employees setting their own hours.

Lots of companies in the service business do not care whether an employee has a second job with another company, even a "competitor."

The issue around getting paid for jobs completed is absolutely a non-issue. Lots of employees are paid for piece-work, or equivalently have paid-for-performance structures.

The issue is whether such payment can drop below minimum-wage laws, and the answer in law is, "no."

So, frankly, while Uber and Lyft are certainly doing their best to act like their drivers are not employees, the criteria you give here do not disqualify them from being considered employees, as there are a non-trivial number of companies that have arrangements like this with their employees.

I'm left to think that it is certainly reasonable for a court to consider all these issues in aggregate and make a determination. It does not strike me as "obvious" either way.

> Lots of companies in the service business do not care whether an employee has a second job with another company, even a "competitor."

Absolutely none of them will let you be on the clock with a competitor at the same time you're on the clock with them.

Neither do Uber or Lyft. No driver performs an Uber ride and a Lyft ride at the same point in time.

Could it be because these companies are paying you to be on the clock while Uber and Lyft are not?

I don't think they said it would disqualify them, just that those arrangements are far more common in independent work. I would say it is rare to find those attributes in employee relationships, even rarer to find all of them.

Well, it is absolutely true that Uber and Lyft are unique. That’s their entire philosophy, to be different than what has come before.

But in doing so, they open themselves to the following reasoning: “Just as they bring a new and hitherto unique model for transportation companies, they also bring a new and hitherto unique model for employer-employee relationships.”

They are by definition unicorns, so while the courts may rule that their drivers are contractors, if they were to rule that the drivers are employees, it seems appropriate to accept that its relationship with its employees would also be unique.

>completed is absolutely a non-issue. Lots of employees are paid for piece-work, or equivalently have paid-for-performance structures.

Yes, those people are called "contractors"

I'm a software developer, very clearly an employee, and except for the last item in your list, all of this applies to me as well.

I don't care that they're slightly more independent. They're paid far less, and they deserve the same kind of legal protections.

You can "work for another company at the same instant you're working for [your current one]"? What about a direct competitor?

Do you actually get paid per job worked, and not salary? How does that work? What metrics do you use to determine the amount of work done? This is a genuine question. Most setups like this I've seen are with freelancers, and those are contractors.

That would be the last item on the list, which I specifically excluded.

I was asking about the 3rd and 4th to last items on the list...

I thought I was an employee at my second role as a developer. Found out after a government ruling I was a contractor.

Being a developer doesn't make you an employee.

If you work for contracts / jobs and not for a company that has hired you full time then yeah you are probably a contractor depending on where you are occupation does not magically determine employment status (contractor vs employee).

It did for me. I was hired locally and worked for a short time on location but then worked from home. When tax time came I asked for my t4 but employer said I wasn't an employee so I asked for a ruling and it was deemed I was a contractor. That ending up costing me thousands.. I quickly found something else..

Not sure where you live, but every job I have had that's a full employment job has had me fill out a W2 tax form as one of the first papers I sign. If I'm not asked to sign one, I'm going to get suspicious about my employment status immediately.

I've worked a few software developer jobs- particularly at very early startups- that were probably illegal. Either as an employee treated way too much like a contractor, or a contractor treated way too much like an employee.

Those are just some conditions of work,typically contractors would have similar conditions.

The point of qualifying them as employees is offering the (little) protection the state grants those, acting as a negotiating agent in a relation that is typically disproportionately favorable the larger party, i.e. the company.

Most drivers I've met don't do that for fun but because they have to. They are usually not part of the upper or middle classes but or the more vulnerable. And as such, getting some status that prevents companies known for their bad hr practices to do whatever they want is the human thing to do.

ride share drivers are pretty clearly not employees in the same way that I am an employee at my current 9-5 or how I was when I worked in a restaurant. these jobs also differ importantly from typical contractor gigs. instead of fighting over whether to classify them as Employees or Contractors, why not push for a new set of rules that actually suit the situation? is it just not as viable politically?

Protecting people is good and indeed is one of the duties of the government. But why the government is trying to push this duty onto the business?

California is one of the richest state. How about you introduce affordable healthcare for all citizens if the state? I'm sure it will bring the working class more good than all uber laws combined.

There is no such thing as a citizen of California. Every citizen of the US (except the ones out on bail, incarcerated or on probation) has the right to move to California at any time, which is the big flaw in your idea: if California were to start to subsidize healthcare for every California resident, hundreds of thousands of sick US citizens who currently cannot pay their medical bills would move to California, putting a politically unsustainable burden on California's taxpayers.

Subsidizing health care in the US has to be done at the Federal level. The Federal level can require the states to contribute, and I think that is what the Federal Affordable Care Act does, but that is politically palatable only because all 50 states must contribute.

Well, I'm sure Californians, who value democratic principles highly, will gladly accept migrants, who in turn will help to build the state even stronger.

Also you have somehow assumed that a person with health problems is a net burden for the state. When all the progressive humankind have recognized that disabled people can and do contribute a lot to the society, you are dismissing their contribution calling them "a burden".

I don’t know anything about laws and courts and shit but I heard that Cali now requires the ABC test for independent contractors and work freedom does not appear to be a sufficient condition for being a contractor under that test.

https://www.natlawreview.com/article/ninth-circuit-concludes...

Sure, but perhaps this definition is flawed. You can literally be on call for your competitor simultaneously. Let's say a driver is paid hourly by lyft and uber. It's kind of absurd that they should be paid for that time by both companies.

At the very least, if they are reclassified, california should allow the lyft drivers to choose to be contractors. Then lyft and uber could prohibit employee drivers from working for the competitor.

Having driven rideshare for an year and a half I think the reclassification is not really going to work in the driver's favor.

> At the very least, if they are reclassified, california should allow the lyft drivers to choose to be contractors. Then lyft and uber could prohibit employee drivers from working for the competitor.

This makes perfect sense.

And let's forget competition for a moment. Let's say I'm working for a company I shall call BeeperShift, or "BS." If I am working for BS today, and while I am working for BS I write some code for my side-hustle.

Does BS still owe me minimum wage? I think that unless their terms of employment prohibit working on anything except the company's business, they owe me minimum wage.

But if they neglect to prohibit me from working on anything else, and if they neglect as employers to set up appropriate supervision and direction of my activities, I think they owe me minimum wage.

It's not my fault if they don't give me other work to do. I could only give them an out f they give me work to do and I don't do it, i.e. I don't respond when they beep me.

In which case, their recourse is to fire me with cause.

Perhaps this definition is what the world needs.

The whole gig economy thing is bad for the working class. People need real jobs, not sitting in their car waiting for an app to tell them to do some slave labor for a rich person.

Since this is about new legislation, the important point is (imo) what the laws & definitions should be, not what they are.

In any case, IDK if these reasons do or should preclude uber drivers' definition as employees. Flexible hours and/or having your own equipment isn't the norm, but it does exist within employment. So does piecemeal work.

Regardless, I think the situation merits new regulation. One reason is competitive fairness. Smartphone ubiquity enabled these companies to form business models that keep them just outside of the "taxi" & "employer" definitions. This isn't fair to taxis and employers and it may force others into also becoming non-employers, to avoid the burden of labour laws.

Less trivially, these platform tech companies are, in my opinion, monopolies. In fact, their operating rationale from day 1 is to eventually monopolise a large market. Uber raised so much money from investors, despite reliably losing money specifically because successful platforms are expected to become monopolies. Even if you define drivers as independent business people, they should be protected from monopsonist pricing (including terms) power. So should consumers and (very importantly in a monopoly situation) potential rivals.

Here also the existing definition of monopoly is not as important as what the definition should be. Current anti-trust laws were designed for the 20th century commodity and infrastructure monopolies which emerged at that time. New laws need to target the types of monopolies that readily emerge now.. that means platforms. Google's adwords platform & amazon's ecommerce platform, for example, are monopolies. They control enourmous market share. They give their own participant businesses an overwhelming advantage. They're both markets where network effects make market share an overwhelming advantage, locking them into place.

Monopolies are inefficient. The logic of antitrust is economic, not just moral.

I realize this is mostly a discussion about labour rights. These are ultimately important too. I do think the gig economy has advantages. It can't stay a loophole for sidestepping labour laws... but OTOH, I think diversity of employment types is important. Besides flexibility, these are low gatekeeper "jobs" and that has value. Regulation always carries a danger of uniformity. All that said, we can't just move on with the status quo, where Uber drivers have fewer legal rights because they use surge pricing instead of weekly shifts.

1. An Uber or Lyft driver can show up to work "whenever they want" because the company doesn't need them at more specific hours. If they had a shortage of drivers at certain hours, they would certainly require drivers be available at least to some extent at those hours.

Also, many high-tech companies have some of the software developers "show up to work whenever they want" etc. Doesn't make them non-employees - it's just that those companies don't need inflexible hours from them.

2. Drivers can't "take breaks whenever they want" - only between rides and while not committed to an upcoming ride.

1). Not true. What’s surge pricing then? During NYE and Halloween, absolute peak demand time, drivers are not required to work - they’re instead made aware of higher earnings during those times and can decide for themselves.

2). How is this different from any other contractor? Are you saying a true contractor can stop working right in the middle of a job? Imagine if you hired a plumber and they took apart your toilet and then just left in the middle of the job. The nature of the work determines when someone can start/stop working for any reasonable contractor.

> 1. An Uber or Lyft driver can show up to work "whenever they want" because the company doesn't need them at more specific hours. If they had a shortage of drivers at certain hours, they would certainly require drivers be available at least to some extent at those hours.

I doubt they would need to require anything as surge pricing would increase the incentives to drive until some equilibrium was reached, presumably.

> show up to work whenever they want

except this doesnt cover the flexibility to work 5 hours per week; most high tech companies require full time employment.

No contractor is 100% independent. If I hire a plumber, they fix the pipes that I tell them to fix. They don't just do whatever they feel like doing.

If you're 100% independent you're not a contractor, you're retired.

This is not a good analogy.

The plumber is free to set their own rates, an uber driver cannot.

No one can unilaterally fire the plumber from 50% of the plumbing market. Uber or Lyft can ban a driver at any time for any reason.

You probably didn’t order up your plumber through PlumbersRUs. If you did, they would almost certainly be an employee of that entity.

> The plumber is free to set their own rates, an uber driver cannot.

Actually, they can. They can refuse any trip if it doesn't pay enough. The difference is that the existence of Uber and Lyft makes the market more efficient and transparent to the customer than the plumber market.

> No one can unilaterally fire the plumber from 50% of the plumbing market.

The fact that the driving market is consolidated doesn't change the underlying economic dynamic. A lawyer can be "fired" from 100% of the lawyering market by the ABA. But if I hire a lawyer that still doesn't make her an employee.

> You probably didn’t order up your plumber through PlumbersRUs.

Not yet. But even before Lyft and Uber, many (perhaps most) taxi drivers were independent contractors, not employees.

If you hire a lawyer they could be your employee. If you hire a firm they are not.

The difference is the firm can assign a junior to do all of the work and keep the senior for trial or face-to-face meetings. If you hired a person they can't really do that.

Can I change the driver? If my wife uses my account is that allowed? Can I subcontract to my team? If not I'm an employee.

>Can I change the driver? If my wife uses my account is that allowed? Can I subcontract to my team? If not I'm an employee.

That’s not how that works. There is a reason they are called contractors. All kinds of stipulations about who will do the work can be loaded into a contract.

> They can refuse any trip if it doesn't pay enough.

And refuse a few trips and you will be unable to get any trips at all.

Yes, that's how a free market works. If you aren't willing to sell at the clearing rate, you don't get any business. That has absolutely nothing to do with whether or not someone is an employee.

At first I was on your side. The more I think about it I'm not sure.

Not setting your own rates pushes them towards employees.

The freedom to work for any platform at anytime pushes them to contractors.

But I think we are missing the bigger point. Regardless of their status they deserve protection. All contractors should have additional protection.

Tow truck drivers are not employees of AAA.

Says someone that probably is a dot-com employee, where there's a foosball table, people come in at 10 am or later, meetings are considered a waste of time, is "results-oriented"...

.... and gets paid 10x more.

Conjecture about identity of complete stranger: check.

Ad hominem attack based on conjecture: check.

Non-sequitur: check.

This comment shows all the symptoms. I regret to inform you that it is officially retarded.

They have process to discourage each of those so called key elements. To earn a living wage, drivers need to earn bonuses by driving at specific times, for at least a target number of rides per session.

They’re not taking coding contracts ...

Let me quess - you never driver for Lyft or Uber have you now?

Your full time w2 job comes woth exact the sane flexibility - you are allow to show anytime you want to, take breaks as long as you want to and do whatever task you want to. Slavery is over. But just so you know - if you don’t play by the rules you will get fired probably on day one. Similar with share ride apps you are being scored and valuated on every single fart you pass, including amount of signouts, miles you drive, score you get for riders etc. same story you are not forced to do some quota but if you don’t score high enough on their weekly “goodbye to all that didnt fit top 60%” you are not part of family anymore.

> Your full time w2 job comes woth exact the sane flexibility - you are allow to show anytime you want to, take breaks as long as you want to and do whatever task you want to.

What full time job do you have that allows you to show up whenever you want, work as little hours as you want, and do whatever you want? Sign me up.

Plenty of jobs are like this these days. A few of my peeps do work W2 full time, but most time they spent at home; they show up at the office only for official meetings, and other than overall goals they manage their own work, including taking as many PTO as they want to (unlimited, but they are benchmarked based on their work results, not amount of hours they clocked in so you probably going to take full time vacation only once they will be fired).

The only thing from your list that we could argue about is "do whatever task you want to", but that doesn't apply to drivers neither - their task is very strict in fact - they supposed to take riders from A to B, period. No form of deviation is allowed. So actually this alone locked them into a full/part time employee, because they do not have a freedom to do any job they want to, similar to how as a contractor you can chose what you do next.