4 ms·

Do you know why those companies like Fiverr didn't get the same treatment as Uber? In the end it is a pretty much the same business model.

tyingq 6y ago
If you mean the California law, I think the big difference is that under AB5, workers can only be independent contractors if the work they do is "outside the usual course of a company's business". There's no way driving for Uber can ever meet that criteria. Fiverr, on the other hand, often meets that definition. The US federal rules are more subjective, but more generally about "control". Not as stark a difference as the AB5 example, but it does feel like Fiverr workers have more control over things like "picking their tools", "exactly how to do the work", etc.
- varispeed 6y ago
  In the UK this type of work would get caught by IR35, which I understand would be similar to AB5. As an employee you can also pick your own tools or figure out how to do the work by yourself - these are not determining factors at least here where I live. What tips it over the IR35 is having to log your hours and work to the specification given by the "client". This is no different than normal employment except you and the "client" don't pay the right tax and you don't get any employment rights. Probably nobody has seriously took a bite into it, but after Uber precedent this may change.
  - tyingq 6y ago
    "As an employee you can also pick your own tools or figure out how to do the work by yourself" That hasn't really been my experience doing software development as an employee. They mandate lots of things like methodology (scrum, scaled agile, etc), tools like their standard IDE, coding standards, style guides, mandatory use of JIRA or similar, SCM standards, which languages are allowed, and so on. I'm aware some places might be highly flexible, but I assume that's less common.
    - varispeed 6y ago
      If I was commissioning a project I would require it to be implemented using this and that technology and adhere to industry standards and so on. There is not much flexibility, and what IDE you are using are immaterial when it comes to whether you are employed or not.
      - tyingq 6y ago
        "what IDE you are using are immaterial when it comes to whether you are employed or not." It's not, though. It's one aspect of behavioral control. For US Federal purposes, for example: "Type of instructions given, such as when and where to work, what tools to use" "Degree of instruction, more detailed instructions may indicate that the worker is an employee" "Training a worker on how to do the job" https://www.irs.gov/newsroom/understanding-employee-vs-contractor-designation https://www.irs.gov/newsroom/understanding-employee-vs-contr... An IDE could come up in all three of those. And the law isn't black-and-white...it's the cumulative pile of these things that drives a ruling. So an IDE is absolutely material as one of many mandated tools, processes, or training subjects.
        varispeed 6y ago
        In my country for example Upwork would fail for these reasons: Substitution - I understand that you cannot subcontract the work without the client knowledge and approval. That means the service is most likely personal. Even if the client agrees etc. and the subcontractor is only allowed to be from the Upwork pool (e.g. the client could hire them directly) then that also doesn't count as substitution. Control and direction - if the client is directing the worker from the outset and on an ongoing basis and if the worker needs to comply with any standards adopted by client's organisation e.g. the language, coding standards, APIs, then that counts as employment. Especially if the worker does not have final say about how the work is delivered. Control and direction - if you ask the worker to attend meetings or work on a certain schedule e.g. to align with the organisation or even if they are allowed to have flexible hours - then that's no different from employment. Basically you can only get around this if the work is done to a certain deadline and you have no meetings after the work commenced. Provision of equipment - things like a laptop and most software are excluded from consideration in my country. So if you need to buy a laptop for work, it doesn't count. Financial Risk - basically it will only count as freelancing if you risk severe penalties for missing deadlines. Having to work on a project after hours fixing bugs or making amendments does not count as financial risk. The same as having to buy equipment or software just for that project unless the value is substantial. Business on own account - this one is not so important - but basically you need to have a registered company, office, accountant, stationery, website, working with multiple clients (but employees can do multiple jobs too, so there is not much bearing) Business on own account - if project takes majority of your time, so that you cannot work on other projects at the same time, then that also suggests employment. Essentially for work to count as freelance it should look like this: you negotiate what needs to be done, rough specification is being made, you agree to milestones and possible penalties and then you only talk to client when a milestone is reached. The most granular way of payment is per milestone - e.g. hourly billing is employment most of the time. There are exemptions, for example if you work for a private person or a small company. Here is more comprehensive guidance with case studies. IR35 has been tightened so that from April pretty much any work will be considered as employment. https://s3-eu-west-2.amazonaws.com/taxcofe-prod-storage-e5g3yxxi33zt/uploads/2020/12/IR35-3-IR35-assessment-guidance-V12.1-14.12.20.pdf https://s3-eu-west-2.amazonaws.com/taxcofe-prod-storage-e5g3...

tyingq 6y ago

If you mean the California law, I think the big difference is that under AB5, workers can only be independent contractors if the work they do is "outside the usual course of a company's business". There's no way driving for Uber can ever meet that criteria. Fiverr, on the other hand, often meets that definition. The US federal rules are more subjective, but more generally about "control". Not as stark a difference as the AB5 example, but it does feel like Fiverr workers have more control over things like "picking their tools", "exactly how to do the work", etc.

varispeed 6y ago
In the UK this type of work would get caught by IR35, which I understand would be similar to AB5. As an employee you can also pick your own tools or figure out how to do the work by yourself - these are not determining factors at least here where I live. What tips it over the IR35 is having to log your hours and work to the specification given by the "client". This is no different than normal employment except you and the "client" don't pay the right tax and you don't get any employment rights. Probably nobody has seriously took a bite into it, but after Uber precedent this may change.
- tyingq 6y ago
  "As an employee you can also pick your own tools or figure out how to do the work by yourself" That hasn't really been my experience doing software development as an employee. They mandate lots of things like methodology (scrum, scaled agile, etc), tools like their standard IDE, coding standards, style guides, mandatory use of JIRA or similar, SCM standards, which languages are allowed, and so on. I'm aware some places might be highly flexible, but I assume that's less common.
  - varispeed 6y ago
    If I was commissioning a project I would require it to be implemented using this and that technology and adhere to industry standards and so on. There is not much flexibility, and what IDE you are using are immaterial when it comes to whether you are employed or not.
    - tyingq 6y ago
      "what IDE you are using are immaterial when it comes to whether you are employed or not." It's not, though. It's one aspect of behavioral control. For US Federal purposes, for example: "Type of instructions given, such as when and where to work, what tools to use" "Degree of instruction, more detailed instructions may indicate that the worker is an employee" "Training a worker on how to do the job" https://www.irs.gov/newsroom/understanding-employee-vs-contractor-designation https://www.irs.gov/newsroom/understanding-employee-vs-contr... An IDE could come up in all three of those. And the law isn't black-and-white...it's the cumulative pile of these things that drives a ruling. So an IDE is absolutely material as one of many mandated tools, processes, or training subjects.
      - varispeed 6y ago
        In my country for example Upwork would fail for these reasons: Substitution - I understand that you cannot subcontract the work without the client knowledge and approval. That means the service is most likely personal. Even if the client agrees etc. and the subcontractor is only allowed to be from the Upwork pool (e.g. the client could hire them directly) then that also doesn't count as substitution. Control and direction - if the client is directing the worker from the outset and on an ongoing basis and if the worker needs to comply with any standards adopted by client's organisation e.g. the language, coding standards, APIs, then that counts as employment. Especially if the worker does not have final say about how the work is delivered. Control and direction - if you ask the worker to attend meetings or work on a certain schedule e.g. to align with the organisation or even if they are allowed to have flexible hours - then that's no different from employment. Basically you can only get around this if the work is done to a certain deadline and you have no meetings after the work commenced. Provision of equipment - things like a laptop and most software are excluded from consideration in my country. So if you need to buy a laptop for work, it doesn't count. Financial Risk - basically it will only count as freelancing if you risk severe penalties for missing deadlines. Having to work on a project after hours fixing bugs or making amendments does not count as financial risk. The same as having to buy equipment or software just for that project unless the value is substantial. Business on own account - this one is not so important - but basically you need to have a registered company, office, accountant, stationery, website, working with multiple clients (but employees can do multiple jobs too, so there is not much bearing) Business on own account - if project takes majority of your time, so that you cannot work on other projects at the same time, then that also suggests employment. Essentially for work to count as freelance it should look like this: you negotiate what needs to be done, rough specification is being made, you agree to milestones and possible penalties and then you only talk to client when a milestone is reached. The most granular way of payment is per milestone - e.g. hourly billing is employment most of the time. There are exemptions, for example if you work for a private person or a small company. Here is more comprehensive guidance with case studies. IR35 has been tightened so that from April pretty much any work will be considered as employment. https://s3-eu-west-2.amazonaws.com/taxcofe-prod-storage-e5g3yxxi33zt/uploads/2020/12/IR35-3-IR35-assessment-guidance-V12.1-14.12.20.pdf https://s3-eu-west-2.amazonaws.com/taxcofe-prod-storage-e5g3...