Earlier this week, I wrote an article about a recent NLRB decision where the Board found a group of workers who provide video content services for the display board at Minnesota Timberwolves basketball games to be incorrectly classified as independent contractors (read it here: “Labor Board Dunks On Employer’s Contractor Classification Attempt”). Although this case did not directly involve the gig economy, there was one gig-like aspect to the job that became a pivotal point in the decision. Like many sharing economy companies, the Timberwolves had a roster of potential workers available to perform work when needed. For a typical event (in this case, an NBA or WNBA game), only 16 workers were needed; the business retained a roster of over 50 skilled individuals who could perform the work. When the need arose, the business would send out a call to the 50+ workers and fill the 16 slots from the individuals who said they were available. There is no indication in the record of the case to describe just how the business contacted the workers, or how the workers would signify their interest if they were free, available, and interested to pick up the gig, but this assignment system sounds very similar to the way that many digital platforms connect workers to open gigs.
When it rains, it pours. If you think back roughly nine years ago, at the crippling height of the economic downturn, employers were laying off workers en masse across all industries. Fast forward to 2017, and they can’t get enough of them. The concern has clearly shifted from no jobs to no workers.
Chalk this round up to the unions. In a pair of decisions issued last week, a Seattle federal judge ruled that Seattle’s January 2016 Ordinance that seeks to allow for-hire drivers to form unions and collectively bargain with their rideshare companies should stand, and dismissed a series of challenges pending against the law.
Now that the US economy is showing signs of recovery, especially in the area of job creation, some observers have noted that the pool of available contingent workers appears to be shrinking, as workers return to more traditional employment. Some commentators have pointed to this trend as a sign that the gig economy may be over. Others say: “Not so fast.”
Over the past few months, many essays, blog posts, and articles have lamented over the apparent homicidal nature of Millennials. From brunch to wine corks, the “things” Millennials have killed is far-reaching. The formula is simple: pick a thing and then say “Millennials” have killed it. Mashable compiled a fairly thorough list of these such references. As a Millennial, I take some offense to this list, but that is another topic for another day.
Late one night, you request a Lyft ride home, but at the same time you suddenly develop a craving for a delicious Crunchwrap Supreme. What do you do? Fret not: Lyft is testing a new ride-sharing experience that is certain to remedy your midnight munchies. Recently, Taco Bell teamed up with the ride-sharing company to offer passengers rides incorporating a pit stop to a Taco Bell drive-through between 9 p.m. and 2 a.m.
As the U.S. unemployment continues to drop to pre-recession levels, the supply of motivated and qualified workers is tightening. Gig economy businesses competing for a shrinking supply of labor may want to consider turning to refugees and asylum seekers to fill their ranks. It turns out that giving gig platforms to resettled refugees and asylum seekers can boost profits and help companies adapt to a globalizing economy.
The 8th Circuit Court of Appeals recently addressed this question in Ag Spectrum Co. v. Elder, Case No. 16-3113 (8th Cir. August 2, 2017). In that case, Ag Spectrum contracted with Vaughn Elder to work as an independent contractor. Elder also agreed to a three-year non-compete whereby he would not compete with Ag Spectrum by “marketing to, selling to, or consulting with its customers about similar products for three years after terminating the Agreement.” Elder argued that the Agreement was unenforceable under Iowa law.
For years, businesses have struggled with properly identifying workers as either independent contractors or W-2 employees. The hundreds of thousands of jobs created by the gig economy has complicated matters even further. Over the years, administrative bodies have attempted to craft tests to be used in the classification process. These tests, in many respects, have not been helpful. Our courts, too, have attempted to solve the riddle, but have largely been unsuccessful due to inconsistent rulings. As a result, businesses that have attempted to properly classify workers in good faith have found themselves in hot water with the Internal Revenue Service and state taxing authorities, state employment departments, workers’ compensation boards, and the courts.
In a follow-up to our discussion earlier this summer regarding discrimination and the sharing economy, the California Department of Fair Employment and Housing (DFEH) recently settled a charge of discrimination with a sharing economy rental market host who allegedly made disparaging racial comments and canceled a guest’s reservations as the guest was traveling to the property in a snowstorm.