That's pretty interesting! In my view, the set your own fare part and penalty removal definitely moves them from the "employee" zone to "self-employed" in the everyday definition.
I guess AB5 is much more strict.
I guess AB5 is much more strict.
The modifications discussed in the top-level post address the A and C portions of the test, but not B unfortunately. The B clause is very broad, so likely has ramifications for many tech companies.
Taken to its furthest extent, AB5 makes Airbnb hosts Airbnb employees, Amazon marketplace sellers Amazon employees, eBay sellers eBay employees, Twitch streamers Twitch employees, etc.
[1] https://www.californiaemploymentlawreport.com/2019/03/unders...
If the separation on that mindfuck is 'register a corp / LLC', then what prevents drivers making an LLC to drive for uber?
[1] https://www.ftb.ca.gov/file/business/doing-business-in-calif...
Nothing prevents drivers from registering LLCs to drive for uber, and that is in fact what the CA DOL website says is a bare minimum for satisfying another part of AB5.
So, I really don’t understand what your trying to convey.
Gig companies are market makers. By their very nature they are sitting in the middle of transactions and would be without a job without the transacting parties. Are all transacting parties therefore employees of market makers?
There are existing, relatively easily identified examples: tech companies hiring (on contract) workers to provide janitorial or cafeteria services, retailers hiring contracts to fix plumbing or install fixtures in their stores, landlords hiring individuals to paint homes, and the list could go on.
The "usual course of business" has a clear legal definition under California law: "the regular and customary work of a business, performed within or upon the premises or worksite of the client employer."
In the case of Uber, "software development" and "drivers" clearly are required in the "ordinary and regular and expected course of dealings" in their marketplace. The company's entire premise is built on connecting drivers to passengers via a software platform: they don't have a business without both of those things. One might argue over whether drivers' cars count as a "worksite", or whether remote workers working from home count as working from a "worksite" or "on premise"--but those arguments would be thin and shallow.
Regardless, I see you specifically haven't addressed the market maker question. Please articulate a standard by which eBay's on-premise customary work is software development but a gig tech company's isn't. That's literally their regular and customary work of business that is performed on premise at HQ by a workforce that they can actually control (call to work and dismiss). There is no difference between those employees and drivers, huh? None at all? No market maker would have a business without participants doing their own work. The argument is neither thin nor shallow. It gets to the point of whether you can be in the business of making a market for contract labor or services. You seem to argue that that cannot be a business at all, and for what reason exactly?
I can see Uber desperately looking for non-obvious applications for its core software to strengthen its argument.
Suggestions?
They also have a vertical agnostic "Uber Works"[2] that lets contract workers find jobs, sort of like Fiverr or TaskRabbit.
They also partnered with the Thames Clipper to allow passengers to book tickets on the ferry in London[3]. You'd have a hard time arguing that the Thames Clipper staff would be considered Uber employees, even under the AB-5 test.
[1] https://www.uber.com/us/en/freight/
[2] https://www.uber.com/blog/chicago/uberworks/
[3] https://www.independent.co.uk/news/uk/home-news/uber-boat-lo...
Airbnb: no, because hosts aren't being paid for providing services, they're being paid for providing access to their accommodations. Its a subtle distinction but one that matters legally since it means there isn't a compensation-for-work arrangement. (A host can choose to voluntarily go above and beyond, but that's not required or expected.)
Amazon Marketplace and eBay: No. The Amazon marketplace acts like a real marketplace, so sellers transact with the buyers for AM purchases and Amazon acts as an agent of the seller in that transaction. Sellers determine what they sell on Amazon, how much they charge for the products they sell, and are largely responsible for acquiring sales traffic on their own. Sellers independently acquire and own the inventory they sell on Amazon, and can sell on their own websites or on competitors' websites. Crucially, Amazon isn't paying AM sellers for their labors in selling products. They only receive payment for goods actually sold, meaning again, there is no compensation-for-work arrangement.
Also, for Amazon and eBay: AB5 carves out exceptions for direct sales, in this context defined as any sales not made through a retail store, so direct sales salespersons may continue to be treated as contractors or employees as the business so chooses.
Twitch: Possibly! Twitch and streamers are in the business of streaming live video. Streamers are usually exclusive to a particular streaming service. And generally, except for the biggest streamers, they are unable to set or negotiate their own rates for streaming.
BUT...Twitch doesn't actually pay streamers for streaming; most of them do it for free. When it does pay streamers, it pays them commissions and marketing fees for any ad revenue, sales of digital products, or subscriptions tied to their channels (even if not actually arising from streaming), and marketing services and commission-based arrangements are largely excluded from AB5. And generally, for the bigger streamers, it pays them through personal companies so that AB5 does not apply (since AB5 does not apply to contracts between two legal entities).
Twitch is really the least employee vs employer relationship as payment is essentially independent of specific actions preformed by the streamer. It’s not like a streamer is paid to beat a boss, or even play a specific game it’s a question of entertaining people.
IMO it’s the closest to a ‘new economy‘ out there, though sharing roots with earlier real time online performers (porn).
Hotels aren't classified as a service in the US? Or is this going along with the fiction that Airbnb is different from hotels (and not subject to regulations etc) the same way uber isn't a taxi service?
But on that note, a lot of people seem to be ignoring the crucial differences in the transactional relationships between the parties for websites like eBay.
Sellers use eBay to conduct auctions and sell their goods. They have control over inventory, pricing, starting and ending auctions, accepting final bids, etc. eBay as acts the seller's agent and provides services to the seller with respect to transactions similar to how an employee or contractor would. IOW, eBay is acting as a contractor to the seller.
Similarly, for AirBnB, hosts use AirBnB as a marketplace for provider hoteling services. AirBnB is acting as their booking agent and payment collections agent for the host. IOW, AirBnb is acting as a contractor to the host. To the extent that AirBnB itself is paying the hosts (and is not merely passing along money from guests), it isn't for providing hoteling services on AirBnB's behalf, rather it's an incentive for making a property available on the AirBnB marketplace. (I know this because my former employer got paid $$$ to make certain beachside properties it owned available for booking on AirBnB, and these payments were separate from payments we received related to AirBnb-booked stays.)
For Uber/Lyft, the relationship is reversed. The driver is acting as an agent for Uber/Lyft: Uber/Lyft assigns them a ride, and they must provide the ride to get paid. Moreover, in contrast to actual marketplaces, the amount drivers get paid by Uber is not directly tied to the amount charged to the passenger; indeed, driver's generally do not know how much riders actually pay for a trip unless they ask the rider what they're getting charged. This indicates that the transactional relationship for both the driver and the passenger is with Uber, not each other. (Further explanation would dive into principles of contract law, so I leave it to you for further research if you want to go down that path.)
All the actions on the state's part points to bad faith.
Also, the legal wrangling over this started long before Covid.
It's fine to be politically motivated, however it's not good faith to be motivated against specific businesses while pretending to be following a broad principle that then needs exemption holes poked all over it to make work. It indicates there is no principle being followed, or at least they don't know what it should be, a situation which everyone should agree is dangerous.
That argument reminds me of the George Costanza quote, "It's not lying, if you believe it."
Regardless of what they consider themselves, everybody else thinks of them as a big taxi company.
> Taken to its furthest extent, AB5 makes Airbnb hosts Airbnb employees, Amazon marketplace sellers Amazon employees, eBay sellers eBay employees, Twitch streamers Twitch employees, etc.
I don't think it does, and that sounds like FUD. Do you have any references of those businesses actually being required to reclassify vendors as employees?
Uber is a mess.
It clearly needs to be a franchise.
You have Mother Uber that develops the app and sells the franchise and Uber SF, Uber LA, Uber Seattle etc that hires the drivers. It's utterly unclear to me what efficiencies can be found for having one company doing all that.
Think bigger. Why should transportation infrastructure (which is a public good) be controlled by a private, for-profit corporation?
Reforming public institutions to more effectively build public transportation infrastructure seems to be incredibly difficult. Local institutions seem to have maxed out their ability to improve beyond what exists.
So why not let the private market innovate and improve? If the public institutions where smarter they'd be taking advantage of these innovations the same way as has happened in reverse when public institutions have had success with innovation.
UBER could theoretically function without the technology (a taxi service) but it could not function without the drivers, yet. If the fleet was driverless, then of course, they wouldn't have these problems in the first place.
Edit: corrected the year
https://www.forbes.com/sites/robertwood/2014/01/08/big-liabi...
Raising the question that on-the-job injuries for drivers for the three could bring liability to the platform; no distinction for Sidecar:
https://www.forbes.com/sites/ellenhuet/2015/01/06/workers-co...
So yes, I'm skeptical that there's anyone out there who would actually follow through and recognize a driver as a contractor even if they had 100% control of who they accepted that platform really were just a matchmaker.
Edit: If nothing else, I think that shows that SC was significant enough to be talked about alongside Uber.
Courts are not everyday people. For decades they gave lip service to a variety of factors, but inevitably each decision turned on one question: how are taxes handled? If the employer is managing the payment or withholding of taxes, then the worker was an employee. That is changing slowly but remains very much a determining factor.