Can you train contractors without becoming a legal employer?

The gig economy is a powerful force in commodity service markets, such as driving or “ride sharing.” More sophisticated services that require training, which courts have repeatedly ruled put companies in the legal position of employer, creating liability and increasing costs, especially legal costs, will reshape the development of business tools. The evolution of software – it is “eating the world” – points to the solution.

Federal District Court Judge Michael Baylson ruled in mid-April that UberBLACK drivers are not employees of the company because Uber doesn’t exert enough control over their schedules and do not have to report to Uber employees. The Uber app controls the entire engagement between UberBLACK drivers, who can work when they want.

The ruling treats the Uber app as a tool used by the driver to fulfill the contracted service rather than a system of control. While the case may go as far as the U.S. Supreme Court and be reinterpreted many times, this distinction is critically important to the future of gig work arrangements.

The Society for Human Resource Management summarizes the scope of control issue: “If the employer will rigidly prescribe the manner in which the work is performed, that weighs toward employee status. Hiring an employee would be the safer course of action. If the organization is concerned only about the final product and does not need to dictate how the worker gets from point A to point Z, an independent contractor may be the preferred approach.”

We need new tools to enable professional-level services, not just simple commodity services, provided by contractors.

Brands have extensively documented, constantly evolving business processes that contractors must be able to follow reliably to deliver a customer experience consistent with their value proposition. With driving from place to place, the problem is simple. Uber and Lyft coordinate three things: Drivers; Cars, and; Passengers. Getting a passenger together with a car and driver to reach a destination is a relatively simple process, though hugely valuable, as evidenced by the companies’ more than $40-billion gross revenues. Likewise, dog-walking, package delivery, and other simple logistical markets.

More complex business processes, such as a sales engagement, retail interactions, professional services such as medical or therapeutic services, however, require a form of knowledge that has not previously been embodied in a simple app, a tool rather than a scope of control. These new software tools require sophisticated inputs, the ability to ask questions or provide information based on the customer’s circumstances and personality, and in many settings, a great deal of unstructured data needed to deliver the experience the way the brand requires.

These interactions cannot demand training before the contractor begins work. Based on repeated rulings, that training imposes a system of control.

Instead, a competent contractor needs to be prepared with general skills that can be applied to using a software tool that guides them through the brand experience in real-time. This demands software developers deeply understand a brand’s business processes to:

  • Guide the contractor through the correct information to share. For instance, if a medical worker on contract talks with a patient, they may need to be able to explain a HIPAA-related document and share it in the form the hospital company requires.
  • Understand feedback from customers inputted by the contractor to suggest media assets, next steps in the brand’s sales process, and other facets of the customer experience to the contractor as they exercise their skilled work.
  • Validate that processes are followed, as well as collect relevant data needed to refine the process in response to customers. The rapid evolution of brand experience demands that this measurement take place, or the company will miss key feedback it needs. The contractor can be coached to capture this data but may not be trained to do so in advance.

This merely summarizes a complex evolutionary challenge for on-demand services. Gig tools will certainly evolve from commodity services to refined high-touch services, such as prepared food delivery or online human services like legal services or therapy, which can be significantly improved by a greater focus on process. The transformation is just starting. I

Scope of control is a changing concept. The more easily a trained human can respond to process-led software, the less likely that person is to be treated by an employee. By moving the process to the edge of the network, into the hands of a skilled human who is able to modulate a branded experience, brands, retailers, and professional services firms can reduce centralized costs and move more compensation to the human provider.

Process-based apps are the path to improved contractor experience and brand experience. It also has the benefit of being less likely to result in labor litigation. We need better tools to complete the foundation of a prosperous gig world where flexibility is the primary driver of when and how people work.

Author: Mitch Ratcliffe

Mitch Ratcliffe is a veteran entrepreneur, journalist and business model hacker. He operates this site, which is a collection of the blogs he's published over the years, as well as an archive of his professional publishing record. As always, this is a work in progress. Such is life.