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GrubHub Drivers Ruled Contractors
- wpasc 9y agoI wonder if the plaintiff's, Lawson, case was weakened by the fact that he was attempting to work as an actor simultaneously and lied on his resume. Additionally, does the weakness of his case and the precedent that was established from this verdict affect future cases about contractors vs employees? If so, I'd be pissed at Lawson if I were a gig worker
- dragonwriter 9y ago> Additionally, does the weakness of his case and the precedent that was established from this verdict affect future cases about contractors vs employees? A trial court ruling isn't binding authority even on the same court, much less others, and unless it is (unlikely) a published decision, it won't, IIRC, even be citable as persuasive authority in other cases. Now, if it gets appealed and an appeals court rules on the case, things change...
- stale2002 9y agoThe precedent was established a long time ago. Taxi drivers have been working as contractors for decades. Just because a tech company is doing it, doesn't mean that the law has changed its opinion on the matter.
- Bucephalus355 9y agoObviously this is bad for workers in the short-term. The judge notes however that under California law, you’re either an employee or contractor, there is no in-between, and she presumably wants to see that fixed. This is an old issue that goes way back to Microsoft hiring contractors and treating them really well like employees, until the IRS discovered they were also doing it to not pay payroll taxes :( Afterwards, Microsoft had to significantly dock contractor benefits to show there was a real distinction and it was not an accounting gimmick. Like a lot of labor and tax law, these were all put in place 60+ years ago and have pretty much been stretched to the maximum. Ironically, this makes me see people going to Law School as in a really cool spot for the future. I thought I’d never say this, but I can imagine us needing more lawyers in the future to hammer all these things out for whatever the next de facto American System is.
- legohead 9y agoI worked for the USPS at their national training facility, and most of the people there were contractors. The "real" USPS employees, the ones being trained, were employees. Apparently the reason was due to USPS employees getting really good benefits as they get to participate in the federal retirement program which includes a pension. They don't want to have to pony up for all the support staff, even though we worked at a facility, 8-5, 40 hours or more a week, with basically an infinite contract length. They paid for our healthcare plan as well - like an employee might get? :) There wasn't really anything to complain about, as the pay and benefits for even the contractors were really nice (we had "unlimited PTO" before it became a thing in the startup world), but the debate about employee vs contractor is interesting in this particular case.
- rconti 9y agoWere you a 1099 contractor, or an employee of a contracting firm? Big difference.
- godzillabrennus 9y agoIf they paid for healthcare I would expect an employee of a firm that the work was outsourced to. PEO's (Professional Employment Organizations) will have a future as more and more laws are enacted about how we classify an employee.
- walshemj 9y agoInfinite contract length might be a bit tricky and did the USPS pay the benefits? Sounds like an employee to be - which is where MS messed up.
- WalterBright 9y agoBenefits and protections available to employees but not to contractors all cost money. This is why contractors get paid more. If the benefits and protections are provided to contractors, then it will (sooner or later) come out of their paychecks.
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- jt2190 9y ago> Charlotte Garden, an associate law professor at Seattle University, said [U.S. Magistrate Judge Jacqueline Scott] Corley’s decision is a “doubly big” win for GrubHub due to California’s relatively high standard for establishing workers as independent contractors. Would someone familiar with the California standards summarize the contractor/employee test? The article doesn't make specific reference to the criteria. (I'll hunt the internet now myself, and report back.) edit: From the California Tax Service Center... > Does the principal (you) have the right to control the manner and means in which the worker carries out the job? The right of direction and control, whether or not exercised, is the most important factor in determining an employment relationship. The right to discharge a worker at will and without cause is strong evidence for the right of direction and control. When it is not clear whether you have the right to direct and control the worker, you must look further into the actual working relationship by weighing the ten secondary factors. There are secondary tests as well. http://www.taxes.ca.gov/iCorE.bus.shtml http://www.taxes.ca.gov/iCorE.bus.shtml
- dnautics 9y agoThis is the strangest part of California labor law: > The right to discharge a worker at will and without cause is strong evidence for the right of direction and control One usually thinks of a contract worker as being totally de facto dischargeable (contract says you do N jobs, if I don't like you the N+1th job doesn't get contracted), whereas an employee as being entirely nondischargeable due to union agreements or labor laws, but the law itself says the reverse elsewhere. P & !P => Q
- protomyth 9y agoIsn't the theory that you actually have a contract relationship with a contractor and termination is specified by the contract? Its been perverted over the years, but the original intent is still in the law.
- norgie 9y ago> totally de facto dischargeable (contract says you do N jobs, if I don't like you the N+1th job doesn't get contracted) Or you could look at like the contractor will get paid for N jobs regardless, while the employee can be discharged at N - 1 and only get paid for N - 1.
- jstalin 9y agoLooks like he's also trying to sue Amazon for the same thing. https://www.courtlistener.com/docket/4537667/rittmann-v-amazoncom-inc/ https://www.courtlistener.com/docket/4537667/rittmann-v-amaz...
- sfifs 9y agoIs there any way to see the actual ruling? Not finding on search.
- jstalin 9y agohttps://www.courtlistener.com/docket/4182349/221/lawson-v-grubhub-inc/ https://www.courtlistener.com/docket/4182349/221/lawson-v-gr...
- swamy_g 9y agoAm I in the minority to be appalled by the actions of Lawson (and people like him)? Clearly, you are not a full-time employee if you are employed on an as-needed basis.
- meowface 9y agoNo. Employees and employers can both be shitty to each other.
- jjeaff 9y agoEmployment law is not so black and white. And in the case of employee classification of contractors, there is rarely a "clearly". Why not just say all employees are contractors and working "as needed"? No more pesky employment tax, unemployment tax, health care benefits, etc. But that is not to say this guy was in the right. Just that it's rarely obvious.
- tptacek 9y agoThat doesn't follow at all. I think you're confusing "contractor vs. employee" with "full-time vs. part-time". Plenty of retail employees are deployed as-needed, and none of them are contractors.
- harryh 9y agoNone of those retail employers can clock in and out as they please. "as-needed" is the wrong phrase for sure because it indicates the choice is in the hand of the employer. "as-desired" would be better.
- rm_-rf_slash 9y agoI think it’s pretty reasonable to state that gig economy employees are contractors, for the most part. If you set your own hours, then you’re your own boss. The problem - in America, at least - is that contractors are denied benefits like health insurance and pensions/401k plans. But the issue of an inadequate social safety net is separate and much deeper than a mere employee/contractor distinction. Otherwise it remains a game of IRS musical chairs.
- ThrustVectoring 9y ago>contractors are denied benefits like health insurance and pensions/401k plans As their own employers, independent contractors can (and probably should) set up one-participant 401k plans for themselves. This can have significant advantages, since the "employer" gets to select the terms for the 401k, and employer-sponsored plans often drop terms that cost less than the value it'd provide you (eg, in-service Roth conversion + after-tax contributions).
- around_here 9y agoThey totally should on those sweet less-than-minimum contract wages. The lives of a high-flying contractor doing skilled work are very, very different than someone who faces a the "gig" contracts.
- Dylan16807 9y agoTotally separate issue. An employment contract with a beautiful, perfect 401k setup could also pay too little for you to save anything.
- tabeth 9y agoI've never understood this logic. Shouldn't you be able to set your own hours and prices?
- ars 9y ago> and prices? You can, sure. Doesn't mean anyone will hire you. The fact that someone offered a particular rate, and you agreed, doesn't really change anything material. To me a contractor can decide to work that day, or not work (doesn't matter why - could be timing, or doesn't agree with the pay), and it's fine - if he works he gets paid, if not, he doesn't. In contrast an employee has to work every day (other than agreed breaks), or he'll be fired, and no further work will come.
- jstalin 9y agoFrom the ruling by the court: Other dishonest conduct during this lawsuit further supports the Court’s finding that Mr. Lawson intentionally manipulated the app to get paid for not working. During discovery he produced a resume that falsely represents that he attended a Loyola Marymount University Master of Fine Arts program from August 2012 to May 2015, and even lists a specific grade point average; however, Mr. Lawson was only enrolled in the program for one year and did not graduate. When confronted at trial with this misrepresentation, Mr. Lawson testified that he listed all three years because he was “still involved in various activities” and he felt “still part of [the Loyola Marymount] community.” (Dkt. No. 208 at 48:13-16.) This explanation is not credible.
- pbhjpbhj 9y agoIs it really material - except in the loosest sense - that a food delivery driver lied about a Fine Arts course? That aside, reading the linked court documents that contract has major problems. It requires deliverers to sign up for a weekly block and to be available (except under extenuating circumstances) for work, and not refuse work, during that time. That sounds like being a part-time employee to me, regardless of the preceding prose specifically disclaiming employee-employer status (why would they need that I wonder!), and saying the driver was free to work other gigs. If you're free to work other gigs how can you not often have to refuse jobs? I'm not saying Lawson's been harmed, I didn't read enough to know, but that contract looks like it's demanding exclusive employment for a particular company within a given time range; that looks terrible for GrubHub from where I'm sitting.
- saas_co_de 9y ago> that contract looks like it's demanding exclusive employment for a particular company within a given time range The ruling specifically says that this is not the case: "The driver is not precluded from doing business with others and Grubhub does not have the right to restrict the driver from being concurrently or subsequently engaged in performing delivery services for other companies, even those that compete with Grubhub." I am actually pretty impressed with the efforts Grubhub was making for compliance here. "The driver may (1) lease insulated delivery bags from Grubhub in exchange for wearing Grubhub t-shirts and hats" Since requiring someone to wear a uniform or use your logo is a strong sign of an employment relationship they make wearing the uniform consideration for a separate contract. Clever.
- djrogers 9y ago> Lawson claimed the company violated California labor laws by not reimbursing his expenses, paying him less than minimum wage and failing to pay overtime. I have also failed to do all of those things for Mr. Lawson, fortunately like GrubHub I did not tell him I ever would.
- longerthoughts 9y agoThis case aside - if I exclude legally mandated terms when I hire somebody and they accept the offered terms that doesn't mean I'm exempt from the law.
- jahaja 9y agoThe main thing the so called gig-economy brings to the table is a regression in workers rights and benefits. That's the core. That's the profits. I can't understand why people are wilfully accepting that this is somehow the inevitable result of some smartphone app having been created.
- ars 9y ago> is a regression in workers rights and benefits. But, it also brings an expansion in available jobs, and much greater flexibility in deciding when to work. For a LOT of people, those are worthwhile tradeoffs. > of some smartphone app having been created. Piecework (which is basically what this is), long long long predates the smartphone.
- jeremyjh 9y agoPiece rate workers are employees,and full time workers are not exempt. A subset of them (locals who work only during harvest season, and kids, basically) are exempt from overtime status and minimum wage. https://www.dol.gov/whd/regs/compliance/whdfs12.pdf https://www.dol.gov/whd/regs/compliance/whdfs12.pdf
- eropple 9y agoIt is absolutely, positively, incontrovertibly full-stop dishonesty to throw up the smokescreen of "oh they're choosing the 'gig economy' because of flexibility!". They're "choosing the 'gig economy'" 'cause there's no real jobs. The choice being made is between that and unemployment, not that and full-time work. "Flexibility" is what it's called when PR flacks, from their actual-full-time jobs (but, ha ha, not for long, the bell tolls for thee too), have to hide the hatchet job they do to the poor. It's not some "but fairings!" situation--it's a systemic attack on people.
- longerthoughts 9y ago>They're "choosing the 'gig economy'" 'cause there's no real jobs. The choice being made is between that and unemployment, not that and full-time work. This may very well be the more common case but it's not responsible to generalize either way. If you have evidence to support your claim please share.
- dbuder 9y agoimo drivers are clearly employees, but hours online on the app and hours for the purpose of a minimum wage/benefits/holidaypay judgement from the court are two different things. Defendant hurts all drivers with his poor behaviour.
- brandonmenc 9y agoDrivers are on all of the ride sharing apps, simultaneously. A driver sees two ride requests - one from Lyft and one from Uber - and selects the one paying more. At that point, I don't understand how could anyone argue they are an employee (in the traditional sense of the word) of either company.
- ProfessorLayton 9y agoI believe both Uber and Lyft avoid revealing the destination until a ride is accepted, to stop drivers from cherrypicking the most profitable rides. Therefore there is no way to tell which of the two rides will be paying more. Uber will warn the driver if a ride is especially long and allow them to decline those, but overall the driver is kept in the dark as to which rides are more profitable. Additionally, until recently, Uber punished drivers who declined too many rides, either by deprioritizing them, or dropping them altogether.
- BookmarkSaver 9y agoValid, but the premise still stands. The driver can sit there on both apps, and just take the first one that pops up. They aren't "working" for either company until they voluntarily choose to take a "contract" (maybe not actually a contract, almost definitely not legally a contract in some technical sense I would understand, but colloquially). I do support worker's rights heavily in most cases, I just really feel like these rideshare cases (and other similar industries, carefully curated) should be exceptional. It is hard for me to feel like the lack of structure that the driver's operate under is enough to demand full employment rights. I'm sure that somewhere in their algorithms, there is a way (or a potential way) to discriminate/penalize less active or lapsed drivers when they return to business. But that relatively minor power being said, Uber/Lyft can literally only control their worker's schedules and availability and hours using positive profit reinforcement. Like, are you really an "employee" if you can, without warning or consequence, just not work for a months and then return just as suddenly? I don't know if "contractor" is the right word, maybe this should be considered something new like "micro-contractor" or something, but it operates in a way that is economically and operationally fundamentally different from traditional employers, including taxi companies.
- dsfyu404ed 9y agoYou know what they say: Bad case, bad case law.
- cordite 9y agoMy current company specifically chooses to do employment and not contracts for drive related services. The thought model is that an employee would be a better representative for spreading the brand, would have more dedication to customer happiness, and the available supply of drivers would result in consistent ETAs.
- WheelsAtLarge 9y agoThis sux. Gig economy workers are on their own now. I expect a decline in wages. I thought technology was supposed to help us all.
- 111_1_111 9y agoSucks for you maybe. This is good for the majority of the country.
- not_that_noob 9y agoThe judge basically punted the issue to the CA legislature. If enough drivers get together and lobby, I think the legislature may clear up the drivers' ambiguous position.
- CryptoPunk 9y agoA win for contract rights, which is a basic human right.
- gnicholas 9y agoAs a (former) lawyer, I know that magistrate decisions do not necessarily carry the weight of a typical federal judge. And even a district court decision would not be binding on any other district court. Until an appellate court weighs in on this, it seems that the issue is very much up for grabs. I would welcome the more nuanced view of a litigator — I was a transactional lawyer and am just remembering my law school lessons about precedential authority. Edit: corrected an autocorrect.
- drtz 9y agoWe have a round hole and a triangle hole, and we're telling the courts to decide which one to put the square peg in. Sooner or later our legislatures are going to have to deal with this issue.
- kelnos 9y agoI think that's a very good point. My personal opinion is that considering drivers "employees" in these scenarios is ridiculous, but it's possible that "contractor" (as defined by law) isn't a great fit, either.
- Kiro 9y agoWhy don't these companies like GrubHub and Uber just hire the people as employees but with 100% commission based salary? What risk do they take?