12 ms·

Postmates Wins New York Ruling Finding Couriers Not Employees

109 points by danso 8y ago

extralego 8y ago
> Postmarked couriers aren’t required to report to any supervisor, and are free to work as much or as little as they want with no set work schedules, according to the majority ruling. “Control” here is falling prey to the freedom fallacy; something we should expect a judge to overcome. Because the employee’s value is only known to the employer and the employer’s value only to the employee, the only calculable control is in the exchange. If the employer pays the employee up front, the employee has control. Otherwise, they don’t. Independent contractors manage this with a per-job contract only good for liability, but not control. The difference between an employee and an independent contractor is merely in the nature of the agreement over time. “Control” has nothing to do with it. What am I missing?
- pkaye 8y ago
  > If the employer pays the employee up front, the employee has control. Otherwise, they don’t. Does that mean the contractor that comes to work on your house is your employee?
  - deleted 8y ago
    [deleted]
  - NegativeLatency 8y ago
    They might be if you were a copration, but you are a private individual.
    - colechristensen 8y ago
      So I can hire a personal assistant and manage every minute of their day and call them a contractor?
      - ShabbosGoy 8y ago
        Yes. That’s what made Tim Ferriss famous.
- graeme 8y ago
  Control means control in how you do the work. I think you're thinking of control in terms of power dynamics?
  - extralego 8y ago
    I see what you mean. I just think that’s so different in every trade, and the “control” part that is consistent at all are the extreme ones... the power dynamics I guess? Everything else is just making decisions in response to particulars; anything under the sun.
- traek 8y ago
  > “Control” here is falling prey to the freedom fallacy; something we should expect a judge to overcome. What is the "freedom fallacy"? A quick Google search only turned up a book with that title which questions liberal feminism.
  - extralego 8y ago
    Sorry! I just meant the mistake in which people equate freedom with not having other people “controlling” them. The conflict is usually in that with what is considered freedom comes the restrictions of responsibility.
    - walshemj 8y ago
      This is "Control" as it applies to employment law the "legal" meaning of words can have means not really related to non legal use. For example "employee" and "worker" are two separate legal entities.
test6554 8y ago
People need to do more research when they think about taking on these gig economy jobs full time. The first couple gigs you accept, you should log all your hours, even the hours you were on standby between gigs. You need to know what your cost of living is including rent, food, insurance, taxes, etc. It should include all of your life goals like possible homeownership or a family as well as a decent amount toward retirement. Then you need to know what your income and expenses (like vehicle maintenance, etc.) are projected to be and ensure that they meet your cost of living needs. If they don't meet this, then that path is not one you can accept. And if everyone did their research, they wouldn't accept it either at current rates. You almost need a business plan since you are a contractor of unskilled labor.
- save_ferris 8y ago
  > And if everyone did their research, they wouldn't accept it either at current rates. This would be true if there were better-paying alternatives out there that were accessible to most people, but there just aren't for many. One thing that gig companies have going for them is the (relatively) low barrier for workers to earn money in an economy that hasn't seen significant and consistent wage growth in years. If you're struggling to get a job in the first place, doing all of the planning you've outlined could feel like premature optimization.
  - jacquesm 8y ago
    Sure, but with the gig economy being a race to the bottom there is a good chance that you will actually lose money on each gig you work. Better run the numbers to ensure that you really are making money.
    - foota 8y ago
      Retention metrics should tell us something about this, right? If someone does a job for a few months to a year they should have a good handle on whether or not they've lost money.
      - 8y ago
jkaplowitz 8y ago
A few things to note about this decision: It's a 3 to 2 decision from one of four mid-level appellate courts in NY's state court system. Bloomberg cited the original opinion but didn't link to it, so I have no idea how impassioned the dissent was or if the majority's opinion is well reasoned as applied to Postmates' model specifically. I wouldn't assume that all gig economy companies are alike in the legal particulars. Leave to appeal to NY's top-level court could be applied for and granted, but if it's not, this will be binding precedent at the trial level in NY's third judicial department, which covers much of NY state's land area except Western NY and the areas in and around NYC. Other NY trial courts have to follow the appellate court rulings from their own judicial department, but if none exists, they have to follow other departments' appellate rulings like this one. If a split develops among judicial departments, the top-level NY court might make a ruling binding statewide.
- schoen 8y ago
  > Bloomberg cited the original opinion but didn't link to it I found it at http://decisions.courts.state.ny.us/ad3/Decisions/2018/525233.pdf http://decisions.courts.state.ny.us/ad3/Decisions/2018/52523... if you'd like to have a look; this includes both the opinion and the dissent.
  - logicallee 8y ago
    This is a short decision (6 pages including the dissent). The dissent is not impassioned, but rather starts with dryly reciting the facts, then says: >Although the record contains factors that could support a contrary conclusion, including that couriers are not required to wear any uniform, can work for competitors and determine the route for delivery, substantial evidence supports the Unemployment Insurance Appeal Board's finding that sufficient supervision, direction and control was exercised by Postmates to establish an employment relationship. It also specifically points to differences between this and another case: >Our recent decision in Matter of Courto (SCA Enterprises-Commissioner of Labor) (159 AD3d 1240 [2018]) does not, as Postmates contends, compel a different outcome. All of these cases are fact specific and there are several key factual distinctions between this case and Courto that substantiate the Board's finding of an employment relationship here, but not in Courto. It then dryly recites the facts in that other case. So this absolutely doesn't seem like the kind of thing that sets a "precedent". It is not really couched in landmark language. Read for yourself at parent's link - the ruling and dissent are together 5 and half pages. It's really quite specific and doesn't seem to generalize at all. Note: not a lawyer, not well-versed in this area of law.
wuuuut 8y ago
filling up a database lol
dalbasal 8y ago
I think judges need to be able to kick some thungs back to parliaments, with a demand/request for new legislation clarifying ambiguity. It should not be so hard to determine what something is legally, considering how many people are affected. There are obvious implications to defining these grey areas using precedence, the goals of the legislation are less important in a courtroom than technical aspects of the law. On one hand, a lot of these gig companies (especially Uber) could not have scaled as they did using regular employment arrangements. There were undeniable efficiency gains. Many of these benefit employees/contractors too. One big benefit is having far less gatekeeping, which benefits those who tend to be kept out by gatekeepers. On the other hand, these driving and couriering gigs are (using common sense categories) more like casual part time jobs than "true" contractors. Ie, they are exactly the types of vulnerable workers that a lot of labour laws were written to protect. Find a legislative solution. There ways to maintain flexibility, but pretend Uber is contracting freely with a peer. Call it something new. Make rules. Do your job.

109 points by danso 8y ago

> Postmarked couriers aren’t required to report to any supervisor, and are free to work as much or as little as they want with no set work schedules, according to the majority ruling. “Control” here is falling prey to the freedom fallacy; something we should expect a judge to overcome. Because the employee’s value is only known to the employer and the employer’s value only to the employee, the only calculable control is in the exchange. If the employer pays the employee up front, the employee has control. Otherwise, they don’t. Independent contractors manage this with a per-job contract only good for liability, but not control. The difference between an employee and an independent contractor is merely in the nature of the agreement over time. “Control” has nothing to do with it. What am I missing?

pkaye 8y ago
> If the employer pays the employee up front, the employee has control. Otherwise, they don’t. Does that mean the contractor that comes to work on your house is your employee?
- deleted 8y ago
  [deleted]
- NegativeLatency 8y ago
  They might be if you were a copration, but you are a private individual.
  - colechristensen 8y ago
    So I can hire a personal assistant and manage every minute of their day and call them a contractor?
    - ShabbosGoy 8y ago
      Yes. That’s what made Tim Ferriss famous.
graeme 8y ago
Control means control in how you do the work. I think you're thinking of control in terms of power dynamics?
- extralego 8y ago
  I see what you mean. I just think that’s so different in every trade, and the “control” part that is consistent at all are the extreme ones... the power dynamics I guess? Everything else is just making decisions in response to particulars; anything under the sun.
traek 8y ago
> “Control” here is falling prey to the freedom fallacy; something we should expect a judge to overcome. What is the "freedom fallacy"? A quick Google search only turned up a book with that title which questions liberal feminism.
- extralego 8y ago
  Sorry! I just meant the mistake in which people equate freedom with not having other people “controlling” them. The conflict is usually in that with what is considered freedom comes the restrictions of responsibility.
  - walshemj 8y ago
    This is "Control" as it applies to employment law the "legal" meaning of words can have means not really related to non legal use. For example "employee" and "worker" are two separate legal entities.

test6554 8y ago

People need to do more research when they think about taking on these gig economy jobs full time. The first couple gigs you accept, you should log all your hours, even the hours you were on standby between gigs. You need to know what your cost of living is including rent, food, insurance, taxes, etc. It should include all of your life goals like possible homeownership or a family as well as a decent amount toward retirement. Then you need to know what your income and expenses (like vehicle maintenance, etc.) are projected to be and ensure that they meet your cost of living needs. If they don't meet this, then that path is not one you can accept. And if everyone did their research, they wouldn't accept it either at current rates. You almost need a business plan since you are a contractor of unskilled labor.

save_ferris 8y ago
> And if everyone did their research, they wouldn't accept it either at current rates. This would be true if there were better-paying alternatives out there that were accessible to most people, but there just aren't for many. One thing that gig companies have going for them is the (relatively) low barrier for workers to earn money in an economy that hasn't seen significant and consistent wage growth in years. If you're struggling to get a job in the first place, doing all of the planning you've outlined could feel like premature optimization.
- jacquesm 8y ago
  Sure, but with the gig economy being a race to the bottom there is a good chance that you will actually lose money on each gig you work. Better run the numbers to ensure that you really are making money.
  - foota 8y ago
    Retention metrics should tell us something about this, right? If someone does a job for a few months to a year they should have a good handle on whether or not they've lost money.
    - 8y ago

jkaplowitz 8y ago

A few things to note about this decision: It's a 3 to 2 decision from one of four mid-level appellate courts in NY's state court system. Bloomberg cited the original opinion but didn't link to it, so I have no idea how impassioned the dissent was or if the majority's opinion is well reasoned as applied to Postmates' model specifically. I wouldn't assume that all gig economy companies are alike in the legal particulars. Leave to appeal to NY's top-level court could be applied for and granted, but if it's not, this will be binding precedent at the trial level in NY's third judicial department, which covers much of NY state's land area except Western NY and the areas in and around NYC. Other NY trial courts have to follow the appellate court rulings from their own judicial department, but if none exists, they have to follow other departments' appellate rulings like this one. If a split develops among judicial departments, the top-level NY court might make a ruling binding statewide.

schoen 8y ago
> Bloomberg cited the original opinion but didn't link to it I found it at http://decisions.courts.state.ny.us/ad3/Decisions/2018/525233.pdf http://decisions.courts.state.ny.us/ad3/Decisions/2018/52523... if you'd like to have a look; this includes both the opinion and the dissent.
- logicallee 8y ago
  This is a short decision (6 pages including the dissent). The dissent is not impassioned, but rather starts with dryly reciting the facts, then says: >Although the record contains factors that could support a contrary conclusion, including that couriers are not required to wear any uniform, can work for competitors and determine the route for delivery, substantial evidence supports the Unemployment Insurance Appeal Board's finding that sufficient supervision, direction and control was exercised by Postmates to establish an employment relationship. It also specifically points to differences between this and another case: >Our recent decision in Matter of Courto (SCA Enterprises-Commissioner of Labor) (159 AD3d 1240 [2018]) does not, as Postmates contends, compel a different outcome. All of these cases are fact specific and there are several key factual distinctions between this case and Courto that substantiate the Board's finding of an employment relationship here, but not in Courto. It then dryly recites the facts in that other case. So this absolutely doesn't seem like the kind of thing that sets a "precedent". It is not really couched in landmark language. Read for yourself at parent's link - the ruling and dissent are together 5 and half pages. It's really quite specific and doesn't seem to generalize at all. Note: not a lawyer, not well-versed in this area of law.

wuuuut 8y ago

filling up a database lol

dalbasal 8y ago

I think judges need to be able to kick some thungs back to parliaments, with a demand/request for new legislation clarifying ambiguity. It should not be so hard to determine what something is legally, considering how many people are affected. There are obvious implications to defining these grey areas using precedence, the goals of the legislation are less important in a courtroom than technical aspects of the law. On one hand, a lot of these gig companies (especially Uber) could not have scaled as they did using regular employment arrangements. There were undeniable efficiency gains. Many of these benefit employees/contractors too. One big benefit is having far less gatekeeping, which benefits those who tend to be kept out by gatekeepers. On the other hand, these driving and couriering gigs are (using common sense categories) more like casual part time jobs than "true" contractors. Ie, they are exactly the types of vulnerable workers that a lot of labour laws were written to protect. Find a legislative solution. There ways to maintain flexibility, but pretend Uber is contracting freely with a peer. Call it something new. Make rules. Do your job.