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Comment by zzzeek | Hacker News Reader

> I don't think that a common sense definition of what an "employee" is includes "show up to work whenever you want, take whatever breaks you want, knock off whenever you want, show up wherever you want,

from the article:

> Uber and lyft have hung their legal hat on the idea that drivers are not workers because they have flexibility. This has never been the criteria on which courts have ruled if workers are employees.

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That the article which makes a claim to which I object makes an additional (unsubstantiated/uncited) claim that their former claim is true is not independent evidence, IMO. (see also: proof by repeated assertion)

Excerpts from the IRS "20 questions" test of employee vs contractor [0]:

Work for multiple companies. People who simultaneously provide services for several unrelated companies are likely to qualify as independent contractors.

Flexibility of schedule. People whose hours or days of work are dictated by a company are apt to qualify as its employees.

Demands for full-time work. Full-time work gives a company control over most of a person's time, which supports a finding of an employment relationship.

Need for on-site services. Requiring someone to work on company premises— particularly if the work can be performed elsewhere—indicates a possible employment relationship.

Method of payment. Hourly, weekly, or monthly pay schedules are characteristic of employment relationships, unless the payments simply are a convenient way of distributing a lump-sum fee. Payment on commission or project completion is more characteristic of independent contractor relationships.

Provision of tools and materials. Workers who perform most of their work using company-provided equipment, tools, and materials are more likely to be considered employees. Work largely done using independently obtained supplies or tools supports an independent contractor finding.

Realization of profit or loss. Workers who receive predetermined earnings and have little chance to realize significant profit or loss through their work generally are employees.

I acknowledge that there are other tests which lean towards employee, but it's far from slam dunk, settled law IMO, and flexibility is quite obviously one factor that courts consider.

[0] - https://www.oregon.gov/ODA/shared/Documents/Publications/Nat...

In my reading, basically every one of those points to Uber/Lyft drivers being contractors...

A question: are those criteria part of a definition or hints?

Possesion of certain amounts of illegal drugs hints that someone's a dealer, but it's not the definition. Selling is.

The real definition of employee seems more related to a higher dependence on the employer.

Looking closer at the points you quote gives a different vision. As an example: owning of tools and materials is actually a burden for the worker. A car, including maintenance, is a significant financial investment. Forcing workers to provide them doesn't make them less dependent on the company, on the contrary.

Similar objections can be put on the rest of criteria. With realization of profit I agree, but are you sure that works well everywhere and for everybody? I suspect that's not the case outside rich areas.

Please read the article, which discusses a California Supreme Court ruling on this very topic. Right now, you got like a paragraph in and went to commenting. That's not helpful.

(I did read the entire article before commenting.) A California Supreme Court ruling seems to have no bearing on whether Uber and Lyft "have a right to exist".

At most, that ruling would affect whether or not they can operate as today within California.

Don’t accuse people of not reading the article. It’s against the site guidelines.

I think you misunderstood how this is considered 13/20 of these items point to employees with several others like Level of instruction being arguable as it’s highly directed.

Anyway, these are employe: Amount of training, Degree of business integration, Extent of personal services, Control of assistants, Continuity of relationship, Sequence of work, Requirements for reports, Method of payment, Realization of profit or loss, Work for multiple companies, Availability to public, Control over discharge, Right of termination

For clarity:

Work for multiple companies at the same time: Not simultaneously, Uber actively excludes people from working for multiple companies while logged into their app, so this counts on the employees side. Even just penalizing people for rejecting rides is treating them as employees.

Realization of profit or loss Uber pays people based on the trip in such a way people can’t become significantly more efficient and thus increase profit for a trip.

PS: Degree of business integration is one of the most damaging, Uber has zero business model without drivers. But even Amount of training suggests employees as you don’t require a training course from your plumber you expect them to be able to solve your problems not work as part of your system.

It would be interesting indeed if uber was somehow specifically prohibited from penalizing drivers for rejecting rides. That and the ability to set notifications when rates reached some preferred threshold that they were interested in. Everyone could set a reasonable threshold and hold off until it was met.

This is the single most critical issue for Uber’s long term viability.

If Drivers can work for multiple companies at the same time Uber loses almost all leverage over drivers and thus can’t develop a long term competitive advantage. It’s a 50+ billion dollar issue for the company.

I didn’t quite get that paragraph, because flexibility of schedule is an important criteria for determining if someone is an employee or a contractor in most of the the US! (In California this isn’t true as of fairly recently, but most of the rest of the country still uses a 20-point set of factors that includes schedule flexibility)

https://www.oregon.gov/ODA/shared/Documents/Publications/Nat...

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