[Michael - Cleveland]

Uber and Lyft’s biggest nightmare has just begun.

Anything that is a 'big nightmare' for Uber and Lyft will be good for gig workers.

 

[Michael - Cleveland]

Equality for all...

is not the same thing as Equal Opportunity for all

 

[Michael - Cleveland]

Interesting that out of 10 votes cast at this point, no one thinks that the prospect of government regulation will be bad for Uber/Lyft. That's curious since the consensus among the companies and shareholders is that government regulation could force them out of business.

Makes me think that the responders here are either just knee-jerk voting, or they really don't know what the business model for profit is within the rideshare companies..

 

[Michael - Cleveland]

My thoughts about the impact on U/L is that it certainly won't make things better for them. They have what they want now, even if they mismanage it somewhat. If restrictions are placed on them it will cost them more to comply with said restrictions. Whether it would put them out of business or not, I doubt it.

Yep they continue to make the argument that employing drivers would put them out of business. And 7 years ago I'd have agreed. But theses companies have had a decade now of very high priced bean-counters and business managers on board to come up with "plan B" . . .

So, IMO, if they haven't put plans in place for when/if the law changes, then they deserve to go out of business.

 

[Michael - Cleveland]

The Poll Question here is asks
"Will this be a positive experience for gig workers?"

That's just another example of what everyone, from the press and media, to politicians and even drivers do. Everyone talks about gig workers as if they all belong to the same church for the same reason, and nothing could be further from the truth. We drivers are about as diverse a group of adults as you possibly assemble. What's good for the goose may not be good for the gander. Be careful what you wish for - you may just get it.

The answer is: Any change that may impact gig workers will be good for some, bad for some and have no impact on others.

 

[Michael - Cleveland]

I think people are just smart enough to know when they hear someone "crying wolf."

Like those who voted to approve Prop 22 after Uber & Lyft spent a gazillion $ to support its passage?

I wish I had your optimism, but I've lived long enough to see all of us succumb to the same carefully crafted marketing campaigns over and over... how else can you explain the continued existence of Red Lobster?

 

[Michael - Cleveland]

Here is a really good interview where Kim Kavin goes over what is in the DOL’s proposed rule change to worker classification. And specifically the SIX FACTORS THAT WILL NOW BE USED TO DETERMINE IC OR EMPLOYEE CLASSIFICATION and it includes an explanation of how the DOL is planning to interpret these 6 factors in their decision making.
. It doesn’t sound like any of us would be able to pass the test in this new change in order to stay Independent contractors

I read the proposal very carefully because I engage over 200 independent contractors in my business. I came to a very different conclusion. In my opinion, as long as the rideshare companies show drivers the distance to the pickup and the destination of the ride, along with estimated earnings, it should be a no-brainer for the rideshare companies to continue to classify drivers as independent contractors.

A few things to keep in mind if you're relatively new to the regulations. The DOL publishes guidelines. They do not make decisions on who is or is not an independent contractor. That is left to the employer. It can be challenged but the decision will be decided by a court, not the DOL.

Also, the parameters the DOL provides as guidelines do not carry equal weight. They allow an employer to consider each of the guidelines separately and assign their own weight to each one.

 

[Michael - Cleveland]

More precisely the DOL ( and all Federal Departments) publish both Rules and Guidelines.
. Guidelines/guidance are general recommendations and describe the agencies current thinking and interpretation on a particular Rule. Guidelines themselves aren’t mandatory nor are they legally binding or enforceable.
Rules however are legally binding and can come with fines and penalties issued by that department/agency as well. What the DOL is doing here is issuing a Rule change, it isn’t simply issuing new or different guidance to the existing rule.

Yes, the employer makes the decision as to how it is going to classify a worker and also the DOL could come in and investigate a misclassification complaint and issue fines and penalties.
Then it could possibly end up in some appeal or lawsuit where yes, the court, not the DOL is going to have the final decision.

That's what I said - less the DoL fines thing. Can you find even 1 example of the DoL issuing a fine over misclassification? I can't. Lot's of cases where companies have been ordered to pay back wages and taxes - but the only penalties or fines I've ever seen have resulted from court cases (where the company challenges the DoL findings and loses in court).

 

[Michael - Cleveland]

From deel.com :
Real-life examples of misclassification penalties

Read the reports you posted. In every case, the DoL took the companies to court and it was the court that ordered the fines and penalties. And in all cases, the DoL took the companies to court because it was determined that the misclassification was "willful misclassification" - not just a disagreement on the classification. The DoL isn't like a local or federal police department that can arrest you or fine you - it has to go to court and make the case that you are in violation of the law (FLSA). Thanks for looking up the examples - very interesting stuff - I appreciate it.

 

[Michael - Cleveland]

Courts have ruled that we are employees

No federal court in the United States has made such a ruling that has stood appeal. 23 states in fact have laws in place requiring that rideshare drivers be classified only as independent contractors.

Otherwise, I agree with your wish list and also agree that the new secretary of labor is not insane.

 

[Michael - Cleveland]

Happens all the time
View attachment 699802

All court cases. As you agree.
But most significantly, I'm not aware of a single case of mis-classification where the DOL has pursued a case in court that wasn't predicated on a company's intentional mis-classification. In other words, cases in which a company blatantly disregarded the guidelines.

Such is not the case with the rideshare companies whose business model and public offerings have all been based on classifying workers as independent contractors, and where the companies have in many cases successfully defended that classification in court and with state legislatures. IMO, any court order to the contrary, while devastating to the companies, would be hard pressed to find intentional mis-classification and order retroactive penalties and retroactive compensation.

 

[Michael - Cleveland]

An employer is generally responsible for any costs incurred when an employee causes a car accident while performing work duties, even if the car is privately owned. No $2,500 deductible.

I think you are confusing or conflating liability and collision coverages. An employer is liable for damages caused by an employee for property damage and injury to others (liability coverage) but not necessarily for damage to an employee owned vehicle (collision coverage). If the employee causes damage to their own vehicle, they will still be liable and their own insurance would be primary - including any deductible. In the case of Uber & Lyft, they currently provide liability insurance while on a trip and if the driver has collision coverage, then the rideshare policies will provide secondary coverage.

 

[Michael - Cleveland]

Where have they been sued.
And why are they spending hundreds of millions to change state laws if they think that they do not control workers so much that they are in danger of being successfully sued for misclassification?
They lost in California and needed to pass a new law to get on the right side of California's laws.

So far, they have won in CA - and 23 other states now have laws on the books requiring the TNCs operating in the state to classify drivers as Independent Contractors.

IMO, under the old driver agreements and driver app, there was no question that drivers should be classified as employees - Shannon Lis-Riordin effectively proved that in federal court (CA 9th circuit)... but the TNCs have since made changes based on the Judge Chen's findings and the appeals court over-ruled Chen on key issues, sending the case back to Chen. In light of the changes the TNCs agreed to (no more deactivations based on acceptance rate, agreeing to more transparency about both trips and fares), Lis-Riordin settled the case. Since that time, the TNCs have completely separated driver earnings from rider fares (remember the old 20%-28% fee? - now gone) and are now providing both upfront fares and upfront earnings estimates - so that the TNCs can now make the case in court that drivers (and riders) have all of the information they need to make a decision as to whether or not to take a trip - putting to rest one of the key elements of determining worker classification: control.

The TNCs can now show that drivers are in control of what rides they choose based on all of the factors they need to make such a decision, including how much they will earn. They can show that drivers choose when and where to work, if they even choose to work at all. They can show that drivers what type of service they want to work by choosing the vehicle use to work and meeting the requirements of the service level.

Another of the key factors considered in determining worker classification is whether or not the worker can work for other companies, including competitors. The TNCs can show this and even show that drivers have to ability to run multiple gig apps simultaneously and choose the best gigs available to them in any of the apps.

Again, IMO, these are the things that - short of congressional involvement - will make it near impossible for anyone to win a court case in the US forcing the TNC to classify drivers as employees.

Another key factor in determining worker classification

 

[Michael - Cleveland]

There was a time when i believed reasonable arguments could be made and then mature, intelligent, well-intentioned adults would render a decision on a matter. In those times, I agree with you.

But I think the coal industry would have agreed in 2007. Right or wrong, one group of people, and often one man, destroyed an industry and bankrupted 100% of the public companies through regulation by executive order.

We'll see, I guess. I think the federal courts will have a difficult time upholding an executive order that contradicts the regulations of the administration issuing it - meaning that the regulations would have to be changed. And everything I read in the DoL proposal leads me to believe that the TNCs will be able to survive the challenge and maintain drivers as ICs - possibly with some changes to compensation & benefits.

 

[Michael - Cleveland]

Almost every company fights the first DOL ruling and fine and leverage the hearing to get a reduced settlement.

I've no idea how you would know that, so I hope you don't mind if I take that as your opinion (and not one I necessarily disagree with).

A company that accepts the fine and doesn’t fight probably has reasons it does not want the issue out in public.

Once a company is under investigation it's already public. And if it's a publicly traded company, they are required by law to disclose the investigation to investors in their 10Q. But otherwise - yeah, I'm on the same page with you now. Except I suspect that the DoL uses the fines to leverage a settlement, not the company.

 

[Michael - Cleveland]

You are commingling Federal court cases and federal departments in the government.
A court case resolve differences between two parties.
The court case happens when someone wants to fight the ruling/fine/regulation.

I haven't conflated (comingled to use your term) the judicial and the administrative.
There is no federal court case that has found drivers to be misclassified - yet. (Federal Court)
There is no Federal Agency that has found drivers to be misclassified - yet. (Federal agencies, DoL, IRS)

But yes, you are right - the agency responsible for enforcing the law (like DoL and its Wage and Hour Division) have the authority to investigate and issue fines in order to enforce federal law - and they can do so without going to court.

The court case happens when someone wants to fight the ruling/fine/regulation

That's not the only time a case is brought. Without any fine or penalty being issued by an agency a court case also happens when anyone challenges the companies assertion of classification - which is what all of the cases so far in federal court have been. As far as I know, no federal agency has brought the TNCs to court over the issue of worker classification - the case have all been brought by private entities.

 

[Michael - Cleveland]

California has a large welfare system it is easy to abuse and security is just not there. It has always been like this since the 80’s

I think that goes for the US, not just CA.
The fraud is such a waste of $. I suspect the problem is that making our security net and support systems more 'secure' would both cost more than the theft it prevents while at the same time denying people with legitimate needs access to services.