Postmates Wins New York Ruling Finding Couriers Not Employees | Hacker News Reader

Postmates Wins New York Ruling Finding Couriers Not Employees

bloomberg.com

109 pointsdanso32 comments

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.

> Bloomberg cited the original opinion but didn't link to it

I found it at

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.

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.

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.

> 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.

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.

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.

>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.

There are things that are more difficult to measure than just "money". For example, as a gig worker you don't really build up any good "skills" or you're not working on a "career" so to speak. In this sense you're not going up on the ladder which means that you are, in a relative sense, actually dropping down the ladder. Stuff like this is hard to measure but the effect is nonetheless real. Furthermore, think of car depreciation costs (Uber) which happens on your dime but is also hard to measure (or at least, many people don't think about it or factor it in until its too late).

These are just 2 examples but I can probably think of more examples. The point I'm trying to make is that being a gig worker might seem promising on the surface (you trade your time/labour for tangible money) but that there are a lot of hidden costs (not just hidden monetary costs).

The economy has seen substantial wage growth at the low end. The local McDonald's was advertising pay of $13-$17 an hour - significantly above minimum wage.

With automation coming it’s still a dead-end job

tragedy of the commons.

If nobody felt prey to the gig economy boom, millenials aging would be opening new service jobs anyway.

> 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.

Exactly this. People like to complain about low-paying jobs as if they're exploiting the workers, but the workers aren't stupid. If there were better options available they would take them.

Trying to crack down on low-paying jobs is just cracking down on the only work available at all.

That's not really true a lot of these gig jobs are replacing existing (low paid) jobs where you would have been an employee - but at a cheaper rate and avoiding the employers side of NI - effectively UK tax payers subsidise Uber et al.

Here in the UK, there seem to be two main demographics doing "gig work" - recent immigrants who don't have the language skills or qualifications for most other types of employment, and students or semi-retired people who need some supplementary income.

These jobs ("self-employment opportunities") are a long way from ideal, but for many people they're the least-worst option. The alternative to working for Uber or Deliveroo many well be unemployment. Gig economy workers have started to unionise, which is a highly significant step - the union has crowdfunded several legal challenges and has already chalked up some victories for their members.

https://iwgb.org.uk/

> People need to do more research when they think about taking on these gig economy jobs full time.

I also think "they do" - but on the other hand, do not forget the human nature. No amount of researching, reading it or hearing it equals to living it yourself.

Last year I accepted a semi-gig job - not in the current "gig economy" sense such as Uber - but I created a combination of working for a startup for preset amount of hours (less than 1/2 month, red flag 1), working for a post-paid client on-demand (this is cool, accept or reject any project as you wish), and working for a pre-paid client on-nonrejectable-demand (red flag 2). At first, it looked great, [the hour rate] x 160 hours = excellent monthly salary!

But then you find out it isn't 160 hours, there's more. After putting in X billable hours of work, you have to issue invoices, study ever-changing laws, file taxes, yada-yada adding non-billable hours. And sometimes there aren't even those 160 hours, all three clients want their hours/projects/work packages in the same week and don't have any of the work for the rest of the month...

And then, it also isn't a salary, it is a gross revenue. So subtract all the insurances, taxes (even those that employer pays in a standard employment), your own hardware, travel costs...

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BUT! Even with all the downsides, sleepless nights and opportunity costs, I would still choose to go through that again. It is like having a HDD crash or dating a borderline girlfriend.

You can do all the research in the world and still think you are the special snowflake who don't need to back up your data or that you are the captain-save-a-girl who will magically erase all the psychological issues and self-harm behavior by the sheer power of your love (true story), only to find out that:

- your HDD is suddenly not showing up in the system and you will spend 3 days of manually recovering and viewing each and every file through various obscure recovery tools; and you will ever since back up your data vigorously at geographically separated locations

- the mirroring behavior and idealization/devaluation cycle is real and while one day you are the best mate in the world, the next day, while you are riding your oxytocin high, you are called the worst incompatible personality in the world, "never see me again", spend your night crying in the corner, only to be greeted with "sometimes I say things I don't mean, get back to me immediately, or I will kill myself" on the third day; and you will ever since bail out at any of the slightest sign of cluster B personality disorder.

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I don't see accepting the "gig-economy" with low payout as not doing your research, but rather as a school fee for getting a valuable lesson in your life... You can tell that to people 100 times, but when they live it once, their eyes will open.

Have you considered that it may not be a matter of choice?

You mean some guy doesn't want to drive drunks around in his car at 2:30 in the morning for less than minimum wage?

Advice alone cannot help people who have gotten themselves into a bad situation, advice is for people who are considering getting into a bad situation, but still have options.

Instead, they should just have cake.

> It should include all of your life goals like possible homeownership or a family as well as a decent amount toward retirement.

Or you can just accept that none of that is going to happen and resign yourself to working a crappy job until you keel over dead (or the robots make you unnecessary).

Though I do enjoy the "freedom fallacy" of not showing up to work for a month or two and still having a job or telling them "I'm busy" when they want some special favor (with promises they never fulfill) from me with absolutely zero repercussions.

So, yeah, I might be dirt poor, one unfortunate incident away from being homeless and can't buy all (or any, really) of the toys I want but this is a path I can accept.

That's a great solution if you are financially stable upfront or otherwise have enough money for food, shelter, and so on. But if you don't have a job, need money for food, rent, children's medical bills, and so on... those decisions seriously change.

It doesn't really matter what what your life goals are at that point. It doesn't matter if it covers everything or not so long as it covers some. It doesn't matter if it meets the cost of your living needs. If it pays just slightly more than minimum wage (which rarely covers the stuff you have listed), it is a better option. Even if it is $25 per month - that might raise your food budget 25%.

> 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?

> 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?

They might be if you were a copration, but you are a private individual.

So I can hire a personal assistant and manage every minute of their day and call them a contractor?

Yes. That’s what made Tim Ferriss famous.

Control means control in how you do the work. I think you're thinking of control in terms of power dynamics?

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.

> “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.

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.

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.

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.

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