Tuesday, March 10, 2020

No Grand Bargain: A Counter Perspective on “Portable Benefits”

I was quoted the other day in Bloomberg News on the subject of “portable benefits”—benefits paid to “gig workers” in lieu of “real benefits” because, well, it’s better than nothing. It may not surprise you to learn that, contrary to the positive tone of the article, I said I thought the entire idea smacked of statutory evasion and obfuscation. The trade of well-defined statutory benefit coverage for portable benefits is no grand bargain—and how many grand bargains do we have to have? Heck one of the ones this audience is familiar with has probably been inadequate for years. You want to bargain to a point below that?

The argument that is supposed to cause me to accept in principle the desirability of portable benefits consists essentially of the following steps:

  1. A new type of work has surfaced that is fundamentally different from all work that has heretofore existed – gig work.
  2. Because gig work is so different, workers who perform it are unclassifiable as “employees” or “independent contractors” or, in any event, are not classifiable as “employees.”
  3. Because gig workers are not employees, they are not entitled to employee benefits.
  4. Because gig workers are not entitled to employee benefits, we must invent new types of benefits that the gig workers can carry around with them from gig to gig.

Of course, I reject the very first premise upon which the three that follow depend. I invite those thinking about these issues to closely scrutinize the nature of the so-called gig work. If it looks like the workers are taxi drivers, it is probably because they are taxi drivers. If those workers delivering your food look like delivery people ultimately under the control of the “platform” for whom they are delivering, that is probably because they are. Compel discussants to explain, in excruciating detail, the nature of the “new” work (that has never before existed in the history of humanity and which is apparently under no one’s control but the poor schmuck who is in physical motion) and then ask yourself why that work can’t be subject to a straightforward control test. Or at least ask yourself why the IRS (despite all protestations) will continue to use its 20-factor control test, thank you very much. I’ll bet you already know why.

Did the world of work change much between 1911 (when we instituted workers’ compensation systems) and, say, the first ten years of the 21st century, when the gig economy magically arose? Of course it did, but we still found it possible to classify most of that century of work as “employment.” My brother-in-law once was a bona fide “coder” who worked for companies where he was very clearly “gigging.” (He has for the last few years very clearly been a managerial employee). As an experiment, I used to subject his description of his duties to the traditional, 10-factor test. He came out an independent contractor every time because he was one. So, no, I don’t blindly accept tautological notions that a gig worker is a gig worker. I think almost all of it is a scam perpetrated by deadbeats. I simply don’t believe we even have a clear idea of a gig worker. Harsh? You bet.

Now some might say – so what? If you can put a buck of benefits in a worker’s hand right now that buck is worth more than the two bucks staying in the bush while this battle is fought out repeatedly in litigation. It’s bread and butter. I suppose that if I’m robbed I’d rather get half my money back than none. (A 2018 Edison Marketplace research poll showed that workers whom the publication defined as being “Gig workers” were off the charts in terms of economic anxiety). The answer to this objection, of course, is that public policy does not deal solely with a current rash of theft but also with underlying processes of thievery. Temporary relief from theft can be pretty unsatisfying, and seems at odds with the whole idea of a stable safety net. (Remember that phrase?)

Still, I suppose I could play along. Please tell me—with precision—the value of benefits that will be provided by statute to this unfortunate twilight group (soon the majority of workers?) We can't presently provide substantial benefits, lament the Gig companies. That, in itself, would prompt litigation because we would look like employers. Then, I answer, how are we supposed to have this conversation? You want to create the twilight category first on the representation, ipse dixit, that protection from litigation will lead to comparable benefits? Sorry, that's not a negotiation, it's -- a romantic song? Also assure me that states’ attempts to provide portable benefits in excess of some future federal model will not be preempted by substantively empty federal law. (You know that grift). Tell me that a mechanism will be provided allowing workers wrongfully deprived of their defined statutory benefit to recover any shortfall (and it would be nice if the mechanism included allowance for funded attorney representation). And, while you are at it, tell me how benefits for work injuries could even fit into the model since, as we all know, litigation on causation and extent of incapacity—among other things—is part and parcel of workers’ compensation reality. Tell me, more broadly, how any benefit requiring regular adjudicated entitlement will be determined in this brave new world of portability. I’ll wait.

Michael C. Duff  

https://lawprofessors.typepad.com/workerscomplaw/2020/03/no-grand-bargain-a-counter-perspective-on-portable-benefits.html

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