Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘Independant Contractors’ Category

Uber And Lyft Drivers Organize To Fight Exploitation

Monday, October 3rd, 2016

“Gig economy” corporations depend on a low-wage economy in which lots of people are looking for ways to get by. Their business model requires disposable people willing to take low-wage jobs with long hours and no benefits so they can pay the rent, doing things for people who need to save as much as they can, so they can pay the rent.

For example, if you’re driving for “ride share” companies like Uber or Lyft, those companies are making serious money. Meanwhile you’re probably working a lot of hours just to make rent. You drive for them, you obviously are an employee, but they say are a “contractor.” Contractors are basically employees who don’t get benefits, have to pay much more into Social Security, have to withhold their own taxes and pay them quarterly, can’t claim unemployment, don’t get Workers Compensation if injured on the job and many other disadvantages. There isn’t even a limit on the hours they work and they can’t get overtime.

The drivers (and other “contractors” around the country) say they are employees and deserve the rights and benefits of employees. Uber and other big corporations that exploit their workers as a business model claim their employees are “contractors” with no rights. Various courts, agencies, departments, etc are working to determine if they will be classified as employees or contractors.

Uber and Lyft Drivers Fighting To Unionize

Uber and Lyft drivers are fighting to do something about this and the best way to do something when you are being exploited on the job is to join a union so you are not fighting alone. In New York, for example, 14,000 Uber and Lyft drivers have signed up to say they want to join the local Amalgamated Transit Union (ATU) branch.

ATU’s website says,

“Founded in 1892, the ATU today is comprised of over 190,000 members, including: metropolitan, interstate, and school bus drivers; paratransit, light rail, subway, streetcar, and ferry boat operators; mechanics and other maintenance workers; clerks, baggage handlers, municipal employees, and others.”

Buzzfeed has the Uber/Lyft/ATU story, in Nearly 14,000 Uber And Lyft Drivers Sign Union Cards In New York

Nearly 14,000 Uber and Lyft drivers in New York have signed up to join the local branch of the Amalgamated Transit Union, according to a union spokesperson. The group plans to rally at the NYC Taxi and Limousine Commission (TLC) headquarters next week to demand a formal vote on unionizing.

The 14,000 sign-ups exceed the 30 percent threshold that federal regulators say must trigger an official vote, the union says. The cards signed by drivers indicate that they seek ATU membership and authorize the union to act as their collective bargaining agent.

The ATU’s Local 1181 is asking the Taxi and Limousine Commission (TCL) to force Uber and Lyft to allow a union vote. Crain’s New York Business explains why, in Union seeks to organize rideshare drivers in NYC,

In a letter to the commissioner that was delivered on Tuesday, Local 1181 President Michael Cordiello asked the TLC to “schedule and conduct a free and fair election for the drivers of these corporations to determine whether they choose to be represented” by the union.

“We make this demand in conformance with the stated mission of the TLC,” he wrote, citing its status as “the agency responsible for licensing and regulating” the city’s taxis and car services.

In an interview, Cordiello added that Tuesday’s rally was only the first step in the union’s strategy.

“There are a lot of other ways we can accomplish this, such as legislation,” he said in a reference to the ordinance passed in December in Seattle that entitled Uber and Lyft drivers to union representation. “We are unfolding what we believe will be a new direction for labor and for the technology work force.”

Drivers and the ATU Local held a rally Tuesday at the TLC office in Long Island City. Vice News covered that, in NYC Uber and Lyft drivers are protesting for union rights,

Drivers for the ride-hailing service Uber turned out in the streets of Queens on Tuesday morning, demanding their right to unionize outside the New York City Taxi and Limousine Commission in Long Island City.

“We demand living wage fares, no pool fares, protection from exploitation, union representation,” read one big green sign held up by one Uber driver, a middle-aged black man with a tan jacket and blue pork pie hat.

The ride-share workers — categorized as “independent contractors” rather than employees by tech companies like Uber and Lyft — had joined up with the Amalgamated Transit Union Local 1181, which represents city bus drivers. Copies of over 14,000 signed union cards sat in a fat bundle on the table in the center of the demonstration, 10,000 cards thicker since May.

The rally had the flavor of a protest,

It was an old-fashioned rally. The ride-share workers, joined by bus drivers, marched in front of the Taxi Commission barking out chants from a bullhorn. Cop cars flanked either side of the street as people who worked inside the Commission building slowed down to check out the protest.

A few passing Uber and Lyft drivers liked what they heard and waded into the demonstration to sign union cards.

“I support this,” said Jaydip Ray, 36, a skinny guy with a blue hoodie, moments after walking away from joining up, as another young man took his place. “We need benefits. Without benefits, we don’t have any future.”

The “gig economy” means that big corporations make billionaires, while their workers are called “contractors” who have no rights and don’t make squat. It’s one more way the system has been rigged.

This post originally appeared on ourfuture.org on September 30, 2016. Reprinted with Permission.

Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.

DOL Decision Could Mean the End of Wage Theft Through “Independent Contractor” Misclassification

Monday, July 27th, 2015

David MobergAre you an employee?

It seems like a simple question that must have a simple answer for most people. But definitions in different laws and rulings enforcing the laws vary. And that variation provides an opening for a growing number of employers to cheat governments of taxes and workers of income, benefits and protections by misclassifying their employees, especially as “independent contractors.”

Last week, the administrator of the Department of Labor’s Wage and Hour Division, David Weil, released a “letter of guidance” that clarifies who is an employee and who is an “independent contractor”—that is, essentially an individual running his or her own business. He argues that the most definitive statement from Congress comes from the Fair Labor Standards Act, which says that “to employ” means “to suffer or permit to work.” And, he concludes, “under the Act, most workers are employees.”

The decision is “incredibly important,” says Catherine Ruckelshaus, general counsel and program director of the National Employment Law Project (NELP), a pro-worker nonprofit organization, and may help to clear up confusion in the courts and encourage more enforcement of the law.

In recent years, many companies—from 10 percent to 30 percent or more of employers—employ at least several million people who are misclassified as independent contractors, according to a recent NELP report. They even go so far as to require workers to form a limited liability corporation or franchise (with themselves as the one and only participant) or to sign contracts declaring that they are independent contractors. According to another study from economist Jeffrey Eisenach of George Mason University, the number of independent contractors rose by one million from 2005 to 2010, including both fake and real contractors (often unemployed workers who re-label themselves as “consultants”).

One high-profile example is the Federal Express delivery driver—who wears a FedEx uniform, drives a company truck, follows a route set by the company and still is treated as a contractor. Weil’s ruling may also tip the judgment against companies like the Uber taxi service, increasingly targeted in lawsuits as improperly treating its drivers as independent contractors.

When employers misclassify workers, they often pay less for contractors, but most important, the workers lose a wide range of protections and benefits under the law such as unemployment compensation, workers’ compensation, minimum wage and overtime regulations, and governments lose billions of dollars a year in taxes that support those programs.

In his recent book The Fissured Workplace, Weil argues that workplace phenomena like subcontracting, using independent contractors, franchising and other ways to make employers less responsible for their employees is not just a result of competition driving down costs, whether as a result of globalization, weakening of unions, new technologies or new work processes, but also “pressure from public and private capital markets to improve returns.”

Unlike the “common law” test for who is an employer, which emphasizes the degree of control over one’s work, the FLSA standard usually relies on an “economic realities” test, which examines many different dimensions of work without favoring one above all others. But in his guidance letter, Weil writes, “the ultimate inquiry under the FLSA is whether the worker is economically dependent on the employer or truly in business for him or herself.” But the varied economic realities tested include such questions as how integral the worker is to the business, how much does managerial skill affect possible profit or loss, how big is the worker’s relative investment, does the worker’s success rely on special business skills in addition to any technical skills, what kind of control does the employer exercise, or how permanent is the relation of the worker to the employer.

The impact of this guidance letter may first be felt in courtrooms and in various federal or state agencies, but Ruckelshaus hopes that employers will voluntarily take it seriously. More likely, it will only be quite meaningful if there are systematic state and federal efforts to audit employer behavior, especially in industries where abuses are common, such as lower-skill construction, home care and janitorial work. Unions are also in a position to push for more vigorous enforcement, as Ruckelshaus said the Carpenters have been.

And when it is clear that the workers are not contractors but employees, the unions can do the workers a favor and invite them to join the union.

This blog was originally posted on In These Times on July 22, 2015. Reprinted with permission.

About the Author: The author’s name is David Moberg. David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at davidmoberg@inthesetimes.com.

Your Rights Job Survival The Issues Features Resources About This Blog