We’ve been asking for increased regulation of the gig economy, and we got it – just not the kind of regulation businesses were hoping for. While gig businesses are craving a modern regulatory approach to misclassification issues, the New York City Council yesterday instead issued a series of new laws that could serve to cool off the growth that we’ve been seeing for the past few years. Among the new laws, ride-sharing drivers will soon be entitled to what appears to be the nation’s first minimum payment wage rates, and the number of licenses for permissible ride-sharing drivers will be artificially capped for the first time.
Although the document itself is fairly dense and complex, specifically focusing on the home-care registry industry, the Labor Department’s latest field assistance bulletin could provide a helpful clue to gig economy companies about how the agency could regulate the concept of misclassification on a broader scale. The July 13 document tilts the scales back towards an even playing field, which should be music to the ears of gig economy businesses across the country.
You remember the game-changing, earth-shattering, monumental decision from the California Supreme Court a few months ago that fundamentally changes the test to determine whether your workers are independent contractors or employees, don’t you? For those who had put it out of their minds hoping it was all just a nightmare, here’s the quick summary: rather than applying a balancing test that took into a number of factors, the California Supreme Court said that hiring entities need to prove that all of their workers satisfy the “ABC test” in order to properly classify them as employees.
Sure, there have been some high-profile legal setbacks for gig economy businesses in the area of misclassification lately; the Dynamex case was a punch in the gut for California businesses, and the Pimlico Plumbers case is a massive headaches for our brothers and sisters across the Atlantic. But by and large, when courts in the States are called upon to apply the standard “right to control” test in misclassification cases involving the gig economy, businesses have come out on top. And that’s exactly what happened late last week in New York as a state appellate court ruled in favor of independent contractor status for a former Postmates driver.
It’s impossible to ignore the reverberations that continue to shake the business landscape after the landmark April 30 Dynamex ruling introduced the notorious ABC test to the California gig economy industry. For those living under a rock the past few months, the ABC test adopted by the California Supreme Court now forces businesses to prove that each and every worker satisfies all three elements of the ABC test in order to properly classify them as independent contractors: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Given the significant difficulty a gig economy business would have in meeting this test for each and every of its workers, it has caused a seismic shift in the way gig companies structure the relationship with their workers.
It’s a small step, but at least it’s progress. Federal regulators made it easier this week for gig workers to obtain health insurance on a more cost-effective basis, which should help to shore up the ranks of gig workers and make freelance work a more attractive option for a larger pool of talent.
Headlines from mainstream news outlets are reporting that today’s Labor Department report on Contingent and Alternative Employment Arrangements shows that the gig economy is shrinking. “The gig economy is actually smaller than it used to be,” says Marketwatch. From the Washington Post: “There’s a smaller share of workers in the gig economy today than before Uber existed.” From the Los Angeles Times: “Share of Americans working as independent contractors dips.” And most dramatically from Quartz Media: “Everything we thought we knew about the gig economy is wrong.”
Now that sports betting has been legalized by the Supreme Court, I might want to consider laying some action on an upcoming game, because I am on fire with my recent predictions. In a blog post from last week, I correctly predicted the two arguments that Grubhub would be making in response to the plaintiff’s argument that the trial victory should be wiped off the books and returned to the lower court for further proceedings. Late last night, the gig economy company filed a brief with the 9th Circuit Court of Appeals in an attempt to preserve its momentous trial victory.
The ink on the Dynamex court decision is barely dry, but plaintiffs’ attorneys are not wasting any time in taking advantage of the new misclassification standard established for California businesses. In a pair of lawsuits filed on May 8 in a San Francisco state court, workers for both Lyft and Postmates filed claims alleging they were improperly classified as contractors. The lawsuits each use specific language aimed at conforming to the new ABC test established by the California Supreme Court. Specifically:
Late Friday afternoon, the attorneys for the worker who came out on the losing end of the Grubhub misclassification trial asked the appeals court to return the case to the lower court for a new hearing. Their reasoning? Last week’s momentous Dynamex ruling by the California Supreme Court changed the standard that courts should follow when making a classification determination between employee and independent contractor, and the plaintiff wants the court to take a fresh look at the case with this new standard in mind. This maneuver was all but inevitable, and gig companies around the country (but especially in California) should pay close attention to the proceedings to see how this development might impact them.