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.

Uber’s December EU court loss has global consequences

Lexology analyzes an important employment and regulatory decision by the Court of Justice of the European Union after the Spanish Asociación Profesional Élite Taxi, a driver’s union, challenged Uber’s operating model in Barcelona. The court, which is the highest in the E.U., sided with drivers.

Lexology analyzes an important employment and regulatory decision by the Court of Justice of the European Union after the Spanish Asociación Profesional Élite Taxi, a driver’s union, challenged Uber’s operating model in Barcelona. The court, which is the highest in the E.U., sided with drivers.

Uber selects the non-professional drivers to use their own vehicles and, without the UBER branded application: (i) those drivers would not be led to provide transport services to the fares, and (ii) those customers would not use the services provided by those drivers. Accordingly, looking at the nature and effect of the services provided by Uber and the control exercised by Uber, the CJEU ruled that it was providing transport services – not information society services. As such, it ruled that Article 56 TFEU and the laws under the E-Commerce Directive, and related legislation, did not apply to these circumstances. Moreover, the CJEU noted that as these taxi services amounted to non-public urban transport services and such had not yet become the subject of an EU wide common transport policy, it remained open for individual Member States to regulate the conditions under which these services were provided.

Slowly, Uber is being forced to acknowledge the reality of local government. If you follow labor law, this is a must-read. Government is designed to be slower than the economy, and is catching up in mobility markets.

Update: Scotland is coming after Airbnb, too: The Times of London reports that Patrick Harvie, a Scottish housing advocate said: “There is a huge difference between what’s generally called the collaborative economy of people putting a spare room in their own home up for short-term let, and the conversion of entire properties to effectively mini-hotels which operate without paying any business taxes and which are distorting the housing market in this way.”

Marketplace Fees Under Pressure: Uber Settles With Drivers, Again

Uber headed off a class action lawsuit by 2,000 New York-area drivers this week, with a promise to pay $3 million to end a dispute over the fees it imposes on those drivers. It is evidence that marketplaces will see more pressure to lower fees in order to retain workers. 

The ridesharing company has settled many similar suits and appears headed for many more settlements. We think the underlying signals point to a decline in the advantage marketplaces had over workers which allowed fees of up to 30 percent to be deducted from fares.

On-demand companies should be prepared to thrive on margins similar to retailers, such as Amazon and WalMart. Where a 25 percent or greater fee is deducted from a driver’s or a housekeeper’s earnings today, the on-demand market his headed for a sub-10 percent fee structure over the next decade.

Two factors will accelerate this trend:

1.) As purpose-specific marketplaces mature, such as ridesharing,  workers will diversify their listings, making themselves available on many systems. This is true of Uber and Lyft drivers, who typically use both apps simultaneously to get work. This means workers will be arbitraging work opportunities across many marketplaces. Purpose-specific markets will respond by consolidating related markets, which presents significant brand challenges. “Uber” has become a verb denoting ridesharing, but not housecleaning; It would have a very difficult time extending its brand into home-services. Price is the manageable factor in consolidating markets.

2.) Information efficiency favors the consumer, not the marketplace. As more data is applied to the problem of anticipating demand, consumers and workers alike will move to low-cost marketplaces in pursuit of better prices and pay rates. These twin demands put the marketplace in a lurch. In order to lower consumer costs while retaining an attractive workforce, the marketplace must lower its fees charged to those workers. 

As workers diversify, marketplace providers will compete for labor supply, lowering their fees charged to workers who focus on their service categories. Likewise, consumers will embrace marketplace brands that solve many in-home and on-demand needs,  leading to greater optimization within those marketplaces and lower fees charged to workers.

 

Tax Bill Lowers Taxes For On-Demand Workers, If They Incorporate

Several articles (New York Times, Bloomberg, and Lexology) in recent days have examined the potential for gig workers to cut their taxable income by 20 percent. There is, however, a trade-off. Workers must incorporate to gain the tax cut.

Incorporating voids the argument that giggers are employees. Corporations are not employees; they operate based on mutually agreed upon contracts with another company. On-demand companies fighting regulatory scrutiny around the world are eager to resolve the question of employment status as they grow. Their future margins depend on controlling costs.

The U.S. approach, to dangle a 20 percent tax break, is attractive to on-demand companies, but will it be enough for an Uber driver or TaskRabbit tasker, among many examples, to forego the employment relationship?

A quick back of the napkin calculation suggests that a typical Uber driver, who earns $2,126 a month (Glassdoor reported average), or $25,512 a year, would retain as much as $5,102.40 a year. That is $425.20 more in earnings per month. It sounds pretty good. 

Employment has other advantages, though, that offset tax savings. Losing employer health care subsidies, for instance, can increase raise the cost of health insurance by 20 percent or much more for an individual, even an incorporated individual. A contractor who paid $1,200 for health insurance for a family of four could pay $700 more monthly.

The tax break is not a guarantee of better pay for contractors who operate as an LLC or other “pass-through” entities. It makes contracting more attractive but is no silver bullet.

There’s more action afoot on this front. The Department of Labor announced last week that it is considering rules to allow individuals and small business join associations to get lower insurance prices. The catch here is that the participants must be incorporated. This is a path to lowering insurance prices, not a panacea.

Chris Opfer and Ben Penn of Bloomberg’s Labor and Employment Blog report that on-demand worker groups are skeptical of the Labor rulemaking:

“We believe it can be a good solution for our 75,000 drivers, but it’s unclear how these plans will be regulated and whether such plans could be distributed in a way that would allow members to qualify for credits under Obamacare,” [Independent Drivers Guild founder James] Conigliaro said. “An association plan couldn’t compete with a highly subsidized plan. On the other hand, drivers have special needs, and an association plan could be tailored to meet those needs and be very powerful. Either way, we’re considering a range of options.”

Giggers have many decisions about their business structure ahead.

 

GrubHub court signals drivers could be considered employees

JDSupra, the legal news service, points to a filing in Lawson v. GrubHub that bodes ill for labor marketplaces, such as GrubHub, Uber, Lyft, TaskRabbit and, well, the rest of the on-demand economy. 

Last week, the plaintiff’s attorney, Shannon Liss-Riordan, submitted a Notice of Supplemental Authority that points to a pending decision by a New Jersey court to apply a restrictive standard to the categorization of workers. If that standard is applied in the GrubHub case, GrubHub will have to treat drivers as employees, as well as confine on-demand markets to specific industries. A disaster for the current model in on-demand economies.

The case, which is in the hands of the US District Court for the Northern District of California, could set the standard for the entire industry. In that case, a new organizing point for the engagement with customers, workers, and government.