Thursday, October 1, 2015

On Worker Classification and Worker Flexibility

             The Uber litigation (O’Connor v. Uber Technologies) and its progeny have inspired many to tackle the employee-independent contractor puzzle as applied to the so-called “on-demand” economy.  We’ve highlighted some of this commentary before (e.g., Rogers 2015).  Here are two recent entries, both focusing on the role of worker flexibility:

            Benjamin Means and Joseph Seiner, “Navigating the Uber Economy” (here, forthcoming U.C. Davis Law Review), argue that worker classification under the Fair Labor Standards Act, among other laws, should turn primarily on “how much flexibility” the worker has in the work relationship: “Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule.”  Means and Seiner criticize the Department of Labor’s recent Administrator’s Interpretation -- on who counts as an “employee” under the Fair Labor Standards Act—for not affording enough weight to worker flexibility and, if courts follow it, making it “nearly impossible for on-demand businesses to argue that their workers are independent contractors.”  In today’s economy, worker flexibility deserves a lot more weight than other factors: “[W]hen the worker has significant discretion to decide when to work, the worker has, as a matter of economic reality, a greater degree of independence than a worker who must abide by a schedule set by the employer.”   

            Meanwhile, over at onLabor, Ben Sachs argues against the claim that “if Uber drivers were to be deemed employees – rather than independent contractors – the drivers would lose the flexibility that defines their jobs.”  This view, he writes, “gets the causal arrows backward,” because a judicial finding that a worker is or is not an “employee” is the result, not the cause, of how much control or flexibility a worker experiences on the job.  To be sure, it’s possible that, in response to a legal determination that their drivers are “employees”, Uber might decide to provide their drivers with less flexibility. Sachs calls this “entirely speculative" and "contrary to everything Uber has said about its business model.” Besides, that result would be “based on” Uber’s strategic decision--a choice--and not "the result of a legal determination of employee status.”  For prior commentary making this point, see here.

 

--Sachin Pandya

https://lawprofessors.typepad.com/laborprof_blog/2015/10/on-worker-classification-and-worker-flexibility.html

Employment Common Law, Wage & Hour | Permalink

Comments

I too agree with the opinion that in today’s economy, worker flexibility deserves a lot more weight than other factors. Hope that this will be considered in the future.

Posted by: Joan Hubbard | Oct 12, 2015 2:36:44 AM

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