It's not that the law dictates this shift, it's that the economics do. Requiring full employment means you can hire less drivers.
If you have less drivers, you need more control over when they drive in order to make sure when customers are looking for a ride, they can find one, hence shifts.
I do see a potential problem here of the interests of people who do this as their job being unnecessarily put into direct conflict with the interests of people who don't do this as their job.
A business model that relies on unfair business practices is not a viable business model. We just need to make sure that the employees caught in this transition have a social safety net that protects them from the financial repercussions of implementing these higher standards for all employees.
Why would someone work 2 part-time jobs at $12/hr instead of one full-time job at $12/hr?
It’s the very same thing as say a driver can’t give a passenger a ride for Uber at the same time they are giving a ride for a Lyft passenger.
> It's usually not feasible to work for both, because they both might end up scheduling you in the same time slot.
You are essentially trying to argue no one Can work 2 jobs because of potential scheduling conflicts. Plenty of people work 2-3 jobs, often times for competitors in the same industry.
The best solution is for the state to end the distinction between independent contractors and full-time employees. I wonder if there's a way to manipulate state corporate taxes and credits to essentially nullify the federal employee status rules. Increase corporate state income tax, use the revenue to credit the employer's portion of social security tax and the independent contractor's excess social security tax. Put a state sales tax on group medical insurance plans and use the funds to provide a public option. Could get complicated, but there's probably a way.
I drove a taxicab for more than a year back in the 90's. That's the way it worked then. Most drivers were shift because they "rented" the car from the company and shared it with other workers. A few drivers were owner-operators who got to set their own hours. This is closer to the model that Uber & Lyft operate under today.
So when Lyft claims that they would be forced to enforce shift work on their owner-operators, this is a lie. There is already a model for this type of driving that predates Uber & Lyft and they're just choosing to ignore it now because it serves their current interests.
You can check their S-1 filing for the “economics” of it...Uber before going public was losing money and acknowledged the legal risk they had been misclassifying drivers as contractors and should drivers be reclassified as employees it’s an existential threat to Uber.
That’s the economics of it...Uber knew they were in the wrong, they knew the day of reckoning was coming and investors took the damn thing public for maximum profits and to cash out and leave others holding the bag.
But the reality is the whole employee/independent contractor issue is just a scapegoat for investors to point their finger at regulations and say that’s why the business failed, but the truth is even without the illegal classification of drivers Uber would never have turned a profit.
You took a potentially objective point and added a ton of spin to it :/
Of course they don’t admit they misclassifying the drivers, but Under the S-1 risk factors:
The independent contractor status of Drivers is currently being challenged in courts and by government agencies in the United States and abroad. We are involved in numerous legal proceedings globally, including putative class and collective class action lawsuits, demands for arbitration, charges and claims before administrative agencies, and investigations or audits by labor, social security, and tax authorities that claim that Drivers should be treated as our employees (or as workers or quasi-employees where those statuses exist), rather than as independent contractors... Nevertheless, we may not be successful in defending the independent contractor status of Drivers in some or all jurisdictions... any such reclassification would require us to fundamentally change our business model, and consequently have an adverse effect on our business and financial condition.
In fact the IPO includes citations to multiple lawsuits including one they settled for $20M for improper classification.
What really needs to happen is that conversion rate needs to be established for this kind of work. So if an average driver can do 20 fares per day, times 20 working days per month, then a "full time" uber employee drives 400 fares per month. Or figure it out on a per-mile basis - like the average fare is 4 miles (let's say) so the average driver does 1600 miles/mo.
Figure out the per-ride or per-mile fee and roll that into the fares. Done and done.
(frankly this is being generous - delivery drivers and waitresses are paid "per fare" too, and we still expect their employers to pay for their benefits.)
Really what needs to happen though is we implement government-provided universal healthcare and maybe a basic income, and then you can have all the wacky gig-economy payment schemes you want.
Is there anything in CA law that prevent Lyft from basically doing exactly what they had been doing but also paying payroll taxes on driver income?
If you're an employee on the clock, you can't be on the clock for two different organizations at the same time.
We often think of "on the clock" employment in terms of shift work, where the worker has a scheduled, fixed-length shift with a single employer, and whether they're actively working during that time or waiting around for the employer to tell them what to do next, they're paid for the hours on the clock.
But it is possible for ridesharing companies to employ workers in "micro-shifts" that last the duration of a single ride.
So, Driver X has two part-time jobs: as a part-time employee of Lyft and a part-time employee of Uber. Driver X is ready to work, so checks the apps, and sees there's a Lyft assignment available. Driver X accepts the ride, and for the duration of that ride, he is working exclusively for Lyft, and Lyft pays him for the time worked. Once that ride ends, his micro-shift with Lyft ends, and he's now available to work for either of his part-time jobs again.
The idea of micro-shifts may seem, at first blush, more like a contractor relationship than an employee relationship. And in the past, gigs that used this model were more likely to involve a contractor relationship -- but they also gave the contractor much more freedom in terms of HOW they accomplished the work.
In contrast, if you look at Uber and Lyft, ignoring the micro-shift aspect, there is very little difference between how those jobs work and how other service-oriented part-time jobs work, in terms of the power the employer has to dictate HOW the work gets done.
That said, there is certainly a good reason for minimum-length shifts and on-call payments in other industries, so I'm willing to acknowledge that striking the right balance that protects workers across the board might be difficult.
Your freelance tutoring is not employer/employee work. You're a freelancer. You set your own hours and rates.
Lawyers do not work for multiple law firms, choosing which firm to work for as they see fit. Whereas drivers very often work for both Lyft and Uber (and Postmates or Grubhub, etc) at the same time.
But to go back to the tutoring example: if I was working for a tutoring company, agreed to take clients between lets say 1-5 PM, and the rate was set by the company, would that be similar enough?
What the word "employee" means within the context of California labor laws is probably quite different from what we understand it to mean in everyday conversation. What one can imagine might work in an abstract sense may not be even remotely possible within California's legal framework. What is known to already happen and work well in other states isn't necessarily possible in California, either. (At least not without getting the legislature involved.)
I mean, I don't see why not. Would create some inefficiencies. But I don't think there is a law against that.
Until one time there was a problem with one of the jobs (which meant other jobs could not be run) and no one had their data in the morning. He was asked why he didn’t contact one of us for help and didn’t really have an answer.
The boss checked the cameras to figure out what this guy was doing. Turns out the guy came in, started as many of the jobs as could be run in parallel, then left to work his shift at another place, came back on his lunch break and fired off another round of jobs, left and finished his shift at the other place, then came back and finished his shift at our place (our shifts were 10-17 hours long). He was confronted and admitted it. I don’t recall if he was fired or if he quit.
You can absolutely argue that the job was stupid and should be automated (it should've been) - you can absolutely argue about whether that person was feeling societal pressures to work two jobs and felt like this was the only way to make ends meet. Both of those points are tangential, though - a lot of folks face them.
He still either fraudulently reported hours (if paid hourly) or failed to meet the expectations of his employment contract. And, in the end, it actually caused other people to likely do overtime to cover up for his skimping.
> You can absolutely argue that the job was stupid and should be automated (it should've been)...
Yes. See my reply to another reply.
> you can absolutely argue about whether that person was feeling societal pressures to work two jobs and felt like this was the only way to make ends meet.
In this time and place, I worked three jobs (separately, and with my employers' full knowledge) and had all my bills paid off the first week of each month. With only (and any) one of those three jobs paying my bills off would have taken about 2.5 weeks. Each job was technically unskilled (although skills helped) and required only a high school diploma.) It was a very prosperous time with low unemployment. I've never been one for societal pressures, but this guy didn't have kids (neither did I at the time); which I think would have been the strongest defense.
> And, in the end, it actually caused other people to likely do overtime to cover up for his skimping.
It definitely had some downstream consequences... possibly overtime but I can't be sure, and although most of the people involved were salaried, on a personal level, they ended up staying later than they otherwise would have.
It's the same reason that an employer can't make all their employees clock out when the factory production line stops to fix a problem.
I don't see why that would not be possible.
Of course these companies prefer not to, because their business model is now based on exploiting workers.
Assume the employers did not collude for an employee on shift at both employers during a given time period (say 9am-1pm):
- Uber says to idle near LAX, because that fits what Uber needs at that time.
- Lyft says to idle near BUR, because that fits what Lyft needs at that time.
Those locations are approximately 37 minutes away as I write this, despite both being quite logically in the same metro area. It's eminently reasonable to expect an employee to serve an area that encompasses (even much more than) the area between those two points, so an employee would not reasonably get a routine say in where inside the region she is asked to idle.
QED the only way to routinely guarantee that Uber and Lyft ask an employee to idle in the same location is for Uber and Lyft to collude on staffing decisions. This opens up other legal concerns (and may be illegal).
And it's not so much anti-moonlighting as not being able to work for multiple companies at the same time (hour). Right now, a driver often is waiting for both Lyft and Uber riders. If they're an hourly employee, they obviously can't do that anymore.
So no, none of this is mandated, but it's the only way a business could operate.
Ah, you say, but what about them being "on the clock" while not actually being willing to drive? The same thing that happens if they turn down a Lyft ride because they're driving an Uber customer: you fire them. And possibly charge them with fraud.
From what I've read here, it seems like all of the "only way a business could operate" responses are based on Uber or Lyft propaganda.
that's just the existing on-call model. it's quite easy to imagine that a service overprovisions to account for people not being required to accept a "page". that overprovisioning specifically is so that people can hold multiple on-call type jobs simultaneously.
For example, if you were employed by Lyft as a driver, then presumably you would be neglecting your job duties if you refused to pick up a customer on the grounds that you happen to be driving a Uber customer at the time.
The only way this industry can operate is if all of the drivers have to be searching for rides on all of the networks?
What employer would allow that?
Of course an employee can work at KFC and McD simultaneously if they can make arrangements to not have shift conflicts, and likewise one could hypothetically be a Uber employee in the morning and a Lyft employee at night, but why go through the trouble of working effectively full time but only getting redundant part timer benefit packages?
1 https://www.dir.ca.gov/dlse/FAQ_ReportingTimePay.htm
2 https://blog.accuchex.com/california-labor-laws-minimum-work...
Uber/Lyft does not exist to help the economy or the people of the US, they exist to help themselves. Otherwise they would charge and pay a working wage.
Having been stranded far from home, both late night and in the early evening, I see Uber & Lyft as providing a valuable service.
Having been taken advantage of by taxi drivers on multiple occasions (I don't think I've ever actually had a good taxi experience) I don't want to go back to the way things were. Maybe other people like being defrauded by taxi drivers? Maybe people just forget how bad the taxi system is, and that at one point people were cheering the demise of the old taxi system for a reason.
I was privileged to a high speed race through Newark running red lights, not responding to my pleas to stop, charge meter was off the whole ride, then a huge argument over the cab fare that almost got the cops called on us once I thankfully arrived at the hotel.
I’ve never been in a cab since.
Uber and Lyft has always been pleasant for me.
The idea that there is a gap in the market is something that people are looking for, on Hacker News most especially, and if this is a legitimate gap that Uber and Lyft are ignoring for silly reasons, then there should be a bunch of startups to take their place pretty quickly.
[1] https://www.npr.org/2019/05/08/721139488/uber-and-lyft-cause...
[2] https://www.nytimes.com/2019/12/05/business/lyft-sexual-assa...
[3] https://www.huffingtonpost.ca/entry/uber-silences-women-sexu...
Of course the next step is to stop operating.
When an employee, you are legally the agent of the employer. Anything you agree to or do while employed is a liability of the employer, not you personally. That is why an employee at a VC firm can commit to provide capital, but doesn't have to pay it directly. Or why a manager of a company can take on debt, that is then the responsibility of the company, not himself.
You cannot be an agent of two companies at the same time. If you have both uber and lyft app running in your car, waiting for a passenger, and you get into a crash, if you are an employee working, then one of the companies is responsible for covering any damages you inflict. Of course, since you're not even on any particular 'job' at the time, who is responsible?
Moreover, you cannot have two companies paying you by the hour for the same hour.
Moreover, the law presumes that employees owe loyalty to their employer while working. So for example, if I am employed by a car dealership, but when a customer comes in during my shift, I decide to sell him my personal used car, instead of the companies, the company can actually sue me for failing to fulfill my duty of loyalty to them. You can't have someone working for both Uber and Lyft in this model. Since Uber and Lyft are competitors, by definition, you cannot be loyal to both. If you have both apps running and pick the best customer based on price, then you have shortchanged one of the companies, and open yourself up to liability. Contractors have no presumed assumption of loyalty to anyone but themselves. That is what allows them to pick the most profitable ride.
https://www.abacademies.org/articles/the-duty-of-loyalty-in-...
Uber has asked for California to come up with legal structures that provide benefits to employees while allowing their business model. This seems eminently reasonable: there are clear differences between Uber and Lyft drivers and traditional employees. It is the duty of government to innovate policy-wise so that the private sector can innovate business-wise. Unfortunately, California's legislature has failed to innovate anything and has instead decided to force innovators to use an outdated model of employment.
One can in fact work two separate jobs at the same time without it being fraud (the only real "legal" restriction on working two jobs). You can also have two companies pay "you by the hour for the same hour" depending on the circumstances. There isn't a bright line rule that states this or anything, it comes down to whether one is committing fraud (and I agree it could be fraud in many cases, especially if done in secret).
The agent thing falls into the same category, and would depend on fraud and conflict of interest (loyalty, as you mentioned). And you can in fact be an agent of multiple companies or organizations at the same time, but things can get tricky (think of a hypothetical person being the CEO of Twitter and Square at the same time for example).
Your car example is also off the mark, or could be, because it's not a bright line rule. Loyalty to a company in Corporate Law is largely predicated on responsibility to the company via position or duties you've undertaken, and many cases have swung either way, and these can be hard or nuanced questions. Some small facts could change the whole car example, for example perhaps you only sell large vans, but the customer only wants a small convertible. In this case it might be proper for the employee to sell the person their personal Miata. It also doesn't consider higher level employees, executives for instance, and corporate opportunity. RE: "you cannot have two companies paying you by the hour for the same hour", sure you can, depending on the circumstances. Contrived example, but imagine a night security guard being paid to sit at a desk from midnight to eight am whose only responsibility is to have their butt in the seat. It might be okay for them to also be paid for a few hours of handling an online help desk for a third party employer for a couple hours, both being paid by the hour. That person is being paid by the hour by two employers simultaneously and it's not fraud or a breach of loyalty, especially for a hypothetical lower level employee who has permission.
Point is, these are not always easy questions, there is a lot of grey area, and you're really painting the agent and duty of loyalty thing as very black and white concepts when they're definitely not.
Please cite something to back this up.
> Moreover, you cannot have two companies paying you by the hour for the same hour.
Why not? Again, please cite a source.
If we assume that uber et al. have a baseline staffing level, during which time you as driver might be paid to be working for them exclusively, then sure, during that period of "dedicated time" you would only be working for the one service. But then in addition to that, uber might have on-call hours to accommodate surge. During this time, you as employee driver are free to accept or pass on rides. Like voluntary overtime, by the task (piece work). In your OT/on-call hours you can also be on-call for ride service #2, since they could have the same go/no-go optional work acceptance. So why couldn't you do this? And why couldn't uber/lyft employ people this way?
Your example of being a car salesman is a bad analogy for ride service. I am not "working" for the ride service until I accept the ride, which constitutes clocking in for an on-call task. Whereas being a car salesman that sells my personal car while on-duty with my employer is a different situation.
From the HN guidelines:
https://news.ycombinator.com/newsguidelines.html
> Be kind. Don't be snarky. Have curious conversation; don't cross-examine. Comments should get more thoughtful and substantive, not less, as a topic gets more divisive.
> Please don't comment about the voting on comments. It never does any good, and it makes boring reading.
Just because someone is an employee doesn't mean the employer can't give them flexible hours
And if you are hiring Joe to work 40 hours as an Uber driver then you need to make sure he works 40 hours that make sense. Thus benefits require a minimum number of hours, and a minimum number of hours requires a schedule.
california is forcing all rideshare contractors to be employees. that's not just a checkbox on a form.
Determining whether someone is an independent contractor has always involved multiple factors. Flexibility of working hours is just one of the factors.
You cannot say categorically that having the ability to choose your own hours makes you an independent contractor rather than an employee.
Other factors include:
* What level of control does the employer have in dictating HOW the work is done?
* Is the worker performing work that is outside the usual course of the employer's business?
* Is it customary for the work to be performed as an independent trade?
The employer's business is connecting cars to riders with software. The driver's usual job is HR, and he uses the lyft service to make extra cash on his way home.
The last point is not something that determines a contractor. What you choose to do for money does not have to be a trade. It can be anything.
There are no working hours. You don't get paid by lyft for hours you 'work.' You get paid for engagements you pick -the rides. Getting paid per project, not for time you put in makes you a contractor for that gig.
That doesn't sound very independent to me.
W2 means you get paid salary or by the hour. Have you ever seen a W2 stub? It doesn't have 'projects' on it. It has a pay rate. Becoming W2 for drivers means they have a salary, and a bonus. So now they're hourly employees. This is literally on the W3 form employers submit to the IRS every year. Not knowing the paid amount before hand is one of the things making it a contract, yet you're claiming not knowing how much you will get paid makes it W2. Amazing gymnastics.
paid per project you choose yourself =contractor. salary or rate =employee.
determining how much you get paid has nothing to do with employee or not. in fact, as I keep stating, not knowing how much you get paid literally makes you not an employee.
The dissonance here is amazing. Uber and Lyft literally started operating in cities and countries where rideshare was explicitly outlawed, hoping they would come around. But now that they had a year to prepare for this, all they found it in themselves to do is pick up their toys and go home? Don't fall for it.
Is that something mandated by California? As far as I know, everywhere else I've been, work-schedules and anti-moonlighting are restrictions placed by the employer, not the state.