12 ms·

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.

• siruncledrew 9y ago
  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.
  • rexgallorum2 9y ago
    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.
• CamperBob2 9y ago
  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.
  • dragonwriter 9y ago
    > 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.
    • CamperBob2 9y ago
      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.
  • rtpg 9y ago
    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?
    • deleted 9y ago
• bdcravens 9y ago
  So a 1099 developer who is required to participate in daily standups will likely qualify as an employee I presume?
  • jahewson 9y ago
    I see no reason to think that.
    • bdcravens 9y ago
      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
    • georgemcbay 9y ago
      Microsoft has gotten slammed in the past for this sort of thing by the IRS: https://corporate.findlaw.com/human-resources/employee-or-independent-contractor-the-implications-of-microsoft.html 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).
  • kahnpro 9y ago
    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.
    • bdcravens 9y ago
      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.
• jaggederest 9y ago
  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.
• gnicholas 9y ago
  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).
  • rdiddly 9y ago
    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.
    • icebraining 9y ago
      It says "... or workplace". Uber drivers don't work in Uber's buildings.
      • AstralStorm 9y ago
        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.
• geofft 9y ago
  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.)
  • s73v3r_ 9y ago
    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.
    • geofft 9y ago
      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.)
      • s73v3r_ 9y ago
        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.
• InvisibleCities 9y ago
  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”.
  • i_cant_speel 9y ago
    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.