US Magistrate Judge Jacqueline Scott Corley issued her ruling on Thursday in a case brought against GrubHub late last year by former food delivery driver Raef Lawson, who claimed that the company’s gig economy business model had violated his rights as an employee under California law. Corley was not persuaded, however, by Lawson’s argument that GrubHub exerted enough control over when and how he worked for him to qualify as an employee and instead found that the company was correct to treat him as an independent contractor, TechCrunch’s Megan Rose Dickey reports:
A key element of the case centered around the Borello test, which looks at circumstances like whether the work performed is part of the company’s regular business, the skill required, payment method and whether the work is done under supervision of a manager. The purpose of the test is to determine whether a worker is a 1099 contractor or a W-2 employee.
On the basis of the Borello standard, Corley concluded that “GrubHub’s lack of all necessary control over Mr. Lawson’s work, including how he performed deliveries and even whether or for how long, along with other factors persuade the Court that the contractor classification was appropriate for Mr. Lawson during his brief tenure with GrubHub.” She also expressed concerns over Lawson’s honesty, noting that he misrepresented his education in his résumé and “intentionally manipulated the app to get paid for not working,” undermining the credibility of his testimony.
Being the first to weigh in on whether gig economy workers enjoy rights as employees, Corley’s ruling could set a precedent with implications for other gig economy companies. However, as Dickey notes, the judge hesitated to cast her ruling as dispositive with regard to the gig economy as a whole:
The Work and Pensions and Business Committees in the UK Parliament have unveiled a bill meant to close what its supporters call loopholes in current law that let employers misclassify employees as self-employed as a means of saving labor costs and evading their legal responsibilities to those workers, Sky News reports:
It says personnel should be classed as a “worker by default” to ensure access to basic rights such as sick pay because hundreds of thousands are currently being “burdened” by risks associated with flexible working. …
Labour’s Frank Field, who chairs the Work and Pensions Committee, said: “The two committees are today presenting the Prime Minister with an opportunity to fulfil the promise she made on the steps of Downing Street on her first day in office.” He said the draft Bill “would end the mass exploitation of ordinary, hard-working people in the gig economy.”
Opponents of the bill, such as the Confederation of British Industry, say it is shortsightedly cracking down on all forms of flexible employment. As the CBI’s managing director for people and infrastructure Neil Carberry put it to Sky News: “Based on a very limited review of the evidence, the committees have brought forward proposals that close off flexibility for firms to grow and create jobs, when the issues that have been raised can be addressed by more effective enforcement action and more targeted changes to the law.”
Over at Personnel Today, Jo Faragher digs deeper into the bill, which also recommends:
In a San Francisco courthouse, US Magistrate Judge Jacqueline Scott Corley recently heard closing arguments in a case brought against GrubHub by former food delivery driver Raef Lawson, challenging the platform’s gig economy business model and claiming protections for drivers as employees under California law. Corley’s ruling in this case is highly anticipated, as she will be the first US judge to weigh in on whether gig economy workers like Lawson have a right to those protections—while Uber and Lyft have both faced similar lawsuits, both of the ride-sharing platforms settled these disputes out of court.
Lawson is represented by Shannon Liss-Riordan, the same Boston-based attorney who pressed the cases of the Uber and Lyft drivers and is also challenging the independent contractor status of gig economy workers at other platforms. SF Gate’s Joel Rosenblatt looked in on the GrubHub case last week:
As the first case of its kind in the U.S., the GrubHub trial “will inevitably be treated as a bellwether,” said Charlotte Garden, an associate law professor at Seattle University. “That’s especially true because the lawyers in this case are also involved in other larger and higher profile misclassification cases, including the Uber case,” said Garden, who has followed the Uber litigation closely.
In the past year, we’ve taken a few looks at “corporate inequality”: i.e., the theory that income inequality in the US is being driven in large part by the growing divide between the compensation of high-value employees at highly profitable firms and the rest of the workforce. Large, wealthy organizations, particularly in the tech sector, are able to attract top talent by paying much higher salaries than lower-margin industries, exacerbating inequality by cultivating an elite class of professionals with high pay and lavish perks whose experience is completely divorced from that of the typical employee anywhere outside Silicon Valley or Wall Street.
Not everyone who works for these highly profitable companies benefits equally from their success, however. As the Guardian’s Julia Carrie Wong writes in a snapshot of Facebook’s contingent workforce, these contractors and subcontractors don’t enjoy the all-inclusive benefits o the tech giant’s regular employees, and many are struggling to get by in the increasingly expensive San Francisco Bay Area:
The $500bn company has been conscientious about ensuring that its subcontracted workers are relatively well paid. In May 2015, amid a nationwide movement to raise the minimum wage, the company established a $15 an hour minimum for its contractors, as well as benefits like paid sick leave, vacation and a $4,000 new-child benefit.
But those wages only go so far in a region with out-of-control housing costs. San Francisco and San Jose ranked first and third in the nation a recent analysis of rents, with one-bedroom apartments in San Jose going for $2,378. The extreme cost of housing is why California has the highest poverty rate in the country, according to a US Census figure that takes into account a region’s cost of living.
In the latest case concerning the classification and rights of workers in the gig economy, the National Labor Relations Board has filed a complaint against Handy Technologies, an on-demand platform for home cleaning services, arguing that its cleaners are employees of the company and not independent contractors as Handy claims, Bloomberg’s Josh Eidelson reports:
The complaint, issued Monday by the agency’s Boston-based regional director and provided to Bloomberg by the workers’ attorney, alleges that Handy “has misclassified its cleaners as ‘independent contractors,’ while they are in fact statutory employees” who are entitled to the protections of federal labor law.
The case concerns workers who are trying to bring wage and hour class-action claims against Handy, who argue the company is violating their rights as employees by trying to force them into arbitration instead. Unless there is a settlement, it now heads to an administrative law judge, and from there could be appealed to the labor board’s presidentially appointed members, and then into federal court.
The Handy workers are represented in the case by Boston-based attorney Shannon Liss-Riordan, who has made a name for herself as an advocate for gig economy workers in similar claims against other platforms like Uber and Lyft. “There are a lot of companies out there that are assuming they can get away with classifying their workers as independent contractors because they think everyone else is doing it,” Liss-Riordan told Bloomberg in an interview. “I would hope this complaint would give them pause.”
The NLRB complaint against Handy, which the company insists is without merit, is among the first cases the board has pursued to address the employment rights of the growing number of Americans who make a living through gig economy platforms. Last October, the NLRB accused the on-demand delivery company Postmates of violating its drivers’ rights as employees by requiring them to agree to resolve disputes through arbitration.
Discussing a recent report from Guardian Life Insurance Company, SHRM’s Stephen Miller examines the case for using voluntary benefits to compete for and retain part-time employees and independent contractors. Noting that most part-time workers lack employer-sponsored health care plans, retirement plans, or other core benefits, Guardian suggests that voluntary benefits can be a good way to help address these employees’ needs:
Under a voluntary benefit program, the employer offers workers a menu of benefits; employees pay for the ones they want through payroll deductions. The employee pays the cost, and the benefits provider handles all administration and provides all needed education materials, [Peggy Maher, senior vice president and head of Guardian’s direct-to-consumer business in New York City,] explained. Usually employees are responsible for paying 100 percent of the premiums. However, voluntary benefits sometimes are niche offerings, such as pet insurance, that might appeal to a subset of workers, and employers may pay part of the cost.
Providing access to voluntary benefits can ease part-time workers’ financial stress, reduce turnover and differentiate employers from competitors in the talent market, Maher noted.
Sure, organizations could offer benefits to part-time employees to increase retention, but why would they? Two of the main benefits of having a part-time employee is that they cost less than full-time employees, in terms of both money and time, and they require less long-term commitment, as most are hired to complete a shorter-term project or task.
US Senator Mark Warner of Virginia and Rep. Suzan DelBene of Washington, both Democrats, proposed legislation on Thursday that would establish a fund to subsidize the development of portable benefits programs for the growing number of Americans making a living as independent workers in the gig economy. According to a press release from Warner’s office, the bill “establishes a $20 million grant fund within the U.S. Department of Labor to incentivize states, localities and nonprofit organizations to experiment with portable benefits models for the independent workforce”:
The Portable Benefits for Independent Workers Pilot Program Act … authorizes a total of $20 million for competitive grants to states, local governments and nonprofits for pilot projects to design, implement and evaluate new models ($15 million) or assess and improve existing models ($5 million) for portable benefits for independent workers such as contractors, temporary workers and self-employed workers.