Worker classification and secure work in the “sharing economy”

Worker classification and secure work in the “sharing economy”

FullSizeRender-1By Veena Dubal

Last month, a California Labor Commissioner decided that Barbara Ann Berwick was an employee of (venture capital darling) Uber for purposes of employment protection under California law.   A charged media flurry followed.   If Uber drivers were employees, then was the company’s highly profitable business model kaput?   Were casual Uber drivers going to be entitled to minimum wage and business expenses (like gas and car upkeep)?  What did this mean for the potential success of other aspiring businesses in the so-called “sharing-economy”?  How did the commissioner come to this decision?  What defines an employee?

While the Berwick decision forced many non-lawyers to think about worker classification for the first time, this debate is nothing new in the tort context.   Courts have long struggled to distinguish independent contractors and employees when determining vicarious liability.   Who should be responsible for the negligence of a worker?  This question, under the common law, turned on an unwieldy analysis of whether that worker was an independent businessman, engaged in his own entrepreneurial dealings, or an employee laboring for an employer.  Far from being easily identifiable, the definition of an employee for tort purposes has resulted in much head scratching, with courts coming down differently while applying the same facts to the same (capacious) set of rules.

But where did this idea that only common law “employees” get work safety net benefits come from?  What few understand is that applying this dichotomous classification in tort law to the context of employee protections is not natural or necessary.   In fact it is relatively recent.  Whether or not the application makes good legal sense or serves broader social goals is worth pondering.

In the tort context, the inquiry boils down to an analysis (crudely put) about who deserves blame, that is, who is really in charge (or, in legal terms, who controls the means and manner of production).   U.S. courts first began to borrow this analysis and utilize it in the employment protection context when businesses tried to evade New Deal legislation put in place to protect the ordinary worker.   Prior to efforts by business representatives to dodge the costs associated with secure work, service workers – including insurance salesmen, taxi drivers, and newspaper boys – were protected under the law.   Indeed, the legislative history of the New Deal reveals no Congressional debate on whether or not “independent contractors” should be covered.  The term used over and over again, by both representatives of manufacturing and of labor, is “worker.”

Today, in what is popularly termed the corporate “sharing economy” – or perhaps more aptly, the “sharing-the-scraps economy” – companies are borrowing from post-New Deal efforts by businesses to increase their own profit through use of “contractors,” evading laws intended to force them to take responsibility for their workers.  Uber, for example, is reaping huge profits from the labor of casual drivers by calling those workers “independent businessmen.”  The company’s position has been that this contractor status of workers means that the company is not liable for the worker’s negligence – OR for the health, safety, and financial security of Uber drivers.

While across the country, judges, commissioners, and regulators have come down differently about whether or not Uber drivers are employees, the history and legislative intent of employment protections begs the question:  why are courts applying the reasoning of tort law to social policy that is intended to create a safety net for workers?

As we enter a historical moment when half the working population will be laboring casually and precariously as a result of evolving business models, we must ask not, “who is an employee” under the common law, but how do we use laws and regulations to create stable and secure work environments?

Veena Dubal is an Associate Professor at University of California Hastings College of Law.  Professor Dubal’s research focuses primarily on law and social change in the context of work law.  Her dissertation, a three year ethnography, examines the work lives and worker collectivities of taxi drivers in San Francisco. Her research suggests that conventional wisdom on lawyering on behalf of low-income independent contractors needs to be re-examined and re-configured based on the desires and everyday realities of these workers.  An earlier version of this blog post was published on the author’s blog.

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On to the next battle — employment equality for LGBT workers

On to the next battle -- employment equality for LGBT workers

By Lisa Mak

 


Last Friday, the Supreme Court legalized same-sex marriage across America.  This historic decision was a momentous step forward in advancing equality for the LGBT community, but the fight for equality is far from over.  What’s next?

The first battleground is to achieve recognition on a national level that the right to work free from discrimination is a fundamental civil right.  According to a report published last month by the Movement Advancement Project, 61 percent of the LGBT population live in states with medium or low legal protections, or that have hostile laws that restrict their rights.  This includes insufficient to non-existent protections in the employment area, as the report specified that 52 percent of the LGBT population live in states that do not prevent employers from firing them based on their sexual orientation.  Imagine: an employee exercises her Constitutional right to marry on a Saturday, and then on Monday gets fired for doing so.  Or for placing a wedding picture on her desk, talking about her spouse, or expressing her sexual identity in any way.  Outrageously, this could be the reality for the majority of LGBT employees in this country.

Employment discrimination against LGBT workers is undeniably still a prevalent problem.  A 2013 survey from the Pew Research Center found that 21 percent of people surveyed said they had been treated unfairly by an employer based on their sexual orientation or gender identity.  The percentages were markedly higher for transgender employees and LGBT people of color.  A 2013 report authored by various organizations found that nearly 50 percent of black LGBT employees reported experiencing discrimination at work due to their sexual orientation.  Between 75 and 82 percent of Asian and Pacific Islander LGBT employees reported workplace discrimination as well.  Such discrimination can include the failure to hire or promote LGBT workers, workplace harassment, unequal wages, and the lack of on-the-job support – the same kinds of employment rights that other minority groups have been advocating for in the workplace for decades.

Despite these realities, according to data from the Human Rights Campaign, only 19 states currently have laws that prohibit workplace discrimination based on both sexual orientation and gender identity.  Another three states prohibit workplace discrimination based on sexual orientation, but not gender identity.  Ten states have employment protections based on sexual orientation and/or gender identity only for public employees, which does nothing for private sector workers.  And in 18 states, LGBT employees still have no employment protections at all.  That lack of protection is just another form of denying equality for employees.

The situation is even bleaker at the federal level, although progress is being made. Yet there is still no federal statute that protects employees based on sexual orientation or gender identity.  The proposed Employment Non-Discrimination Act (ENDA) that would prohibit such discrimination has been introduced in Congress each year since 1994, but has never mustered enough Republican support to make it to the President’s desk.  Last year, House Speaker John Boehner openly expressed his disapproval of ENDA, telling the LGBT Equality Caucus that there was “no way” the legislation would pass that year.  Boehner stated that the bill was “unnecessary” because “people are already protected in the workplace.” Boehner’s statement and others like it demonstrate just how out of touch key members of Congress are with the kind of discrimination LGBT workers face.

Gainful employment instills a sense of purpose and dignity, and increases meaningful contributions to our communities.  Our anti-discrimination laws are in place to correct the traditional exclusion of marginalized groups – such as women, older workers, and racial minorities – and to ensure equal employment opportunities.  It is time to fully add LGBT employees to that list.  Whether single or married, they should not be penalized in their careers or livelihood for exercising their right to work.

It’s time for Congress to pass ENDA at the federal level and for State legislatures to implement or expand laws to protect LGBT employees.  Work must continue in every arena, including in those States where there are already such laws, such as California, where agencies and attorneys should bring critical cases to strengthen enforcement.  Finally, businesses should work to create an inclusive workplace for LGBT employees through policies, practices, and training.  Many companies have already done so, but others continue to flaunt their willingness to discriminate.

As Justice Kennedy wrote in the Obergefell decision, in seeking the right to marriage, same-sex individuals asked “for equal dignity in the eyes of the law.”  We should continue to recognize this dignity by continuing to address the gap in legal employment protections for the LGBT community.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

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