Are You An Employee Or A Contractor? California Carpenters, Strippers And Dog Walkers Face That Question

By Margot Roosevelt Los Angeles Times

WWR Article Summary (tl;dr) A California Supreme Court decision is upending large and small workplaces across the state, making it harder to classify workers as independent contractors.

Los Angeles Times

When Kristyn Hansen first worked at Stews Barber Shop, she cut hair nine hours a day, three days a week. She earned no overtime pay, had no mandated breaks, and her Ladera Ranch bosses didn't cover Social Security taxes, unemployment or disability insurance.

That's because Hansen, 32, was classified as an independent contractor. "I loved it," she said. The schedule allowed her to take five classes at a local college. The pay, 60 percent of an $18 haircut, made for "a comfortable living" serving about 30 customers a day. Health insurance was covered by her husband's employer.

But in October, the shop switched its seven barbers to employee status. To offset the expense of payroll taxes, sick leave, vacation and other benefits for the barbers, pay dropped to $15 an hour, with just a 15 percent share of the haircut price.

Now Hansen works four nine-hour days, taking home about $300 less weekly than when she worked just three days. "For some people, there are advantages to being an employee," she said. "But not for me. I'm stressed for sure."

A California Supreme Court decision last April is upending large and small workplaces across California, making it harder to classify workers as independent contractors. A wide variety of industries are affected, not just app-based companies like Uber and Lyft.

Independent contractors are found among construction workers, truckers and warehouse workers, music teachers, software coders, salespeople, farm laborers, janitors, dog walkers, hairdressers, home-care workers, security guards, doctors, insurance agents, journalists and strippers.

Each sector may have workers who want to remain contractors, collecting untaxed wages upfront without deductions for benefits, and having control over their hours. And it may include others who prefer to be employees, with unemployment insurance, more job stability and the right to join unions.

But the court set a strict new test: It assumes that anyone is an employee if his or her job is central to a company's core business or if the bosses direct how the work is done.

The decision came in a lawsuit by drivers for Dynamex Operations West, a national package delivery company that reclassified its employees as contractors, forcing them to use their own vehicles and pay gas and other expenses.

A stricter standard, the court wrote, should prevent businesses from evading "fundamental responsibilities" and engaging in a "'race to the bottom' ... result(ing) in substandard wages and unhealthy conditions for workers."

In the California Legislature, the issue is shaping up as one of the most divisive of the year.

The California Labor Federation and worker advocates are seeking to write the court's decision into permanent law, arguing that workers are often exploited when classified as contractors.

The California Chamber of Commerce, business groups and Silicon Valley giants, seeking flexibility in how they hire, want the Dynamex ruling to be suspended, they wrote the Legislature, "before work opportunities are destroyed, and before the trial lawyers start crushing businesses with an onslaught of litigation."

Among businesses, "there's a lot of fear," said Democratic state Assemblywoman Lorena Gonzalez, who is writing a bill to codify the court's new standard. "Everybody is lobbying for an exemption."

Gov. Gavin Newsom, who has strong ties to both labor and the technology industry, suggests a need for compromise.

"Workers are too often displaced, devalued and disconnected from the social safety net," he said in his State of the State address this month. "It's time to develop a new modern compact for California's changing workforce. This is much bigger than Dynamex."

The court's new test, modeled on a Massachusetts law, strikes at the heart of a fundamental transformation in the U.S. labor force over the past half-century. Many companies have shifted much of their workforces to independent contractor status or to staffing agencies, which offer no job security.

The trend cuts labor costs. This "fissured workplace," as experts call it, has driven down union membership, by law, independent contractors cannot bargain collectively, and contributed to a loss of middle-wage jobs and wider inequality between workers and bosses.

By 2016, full-time independent contractors constituted 8.5 percent of California's workforce, according to estimates in the University of California, Berkeley Labor Center's survey of available data. A somewhat higher percentage uses independent contracting for supplemental income, the study suggested.

Companies built around smartphone apps have embraced the independent contractor model, fueling a multibillion-dollar "gig economy."

But Uber, Lyft, Amazon, Doordash, Grubhub and others have been sued by thousands of workers who say they are misclassified as independent contractors, angry to be exempt from laws governing wages and hours, discrimination, sexual harassment, disability pay and other labor protections.

Wag Labs, a Los Angeles company that offers dog walking through a mobile app, agreed to pay $1.05 million last November to settle a class-action suit on behalf of 38,000 independent contractors who said they were misclassified and forced to work off the clock.

Last month, more than 60 Uber and Lyft drivers marched in front of Newsom's Los Angeles office hoisting hand-lettered signs decrying "Big Tech" and "corporate greed." The protesters, members of Rideshare Drivers United-LA, a group of 2,500 local drivers, complained about reduced pay, arbitrary terminations known as "deactivations," and a lack of influence over working conditions.

"We are disposable people," said Francine Ayala, a driver carrying a sign reading, "We want rights and protections." She said she can't make ends meet after car payments, gas and insurance, business expenses she wouldn't have to pay if she were an employee. "If they're not going to pay us well, they should give us benefits and protection."

Uber spokesman Davis White declined to comment on lawsuits by drivers. In the past, the company has asserted that it is not in the transportation business, a definition that could make it vulnerable to the Dynamex test, but is merely a technology firm that connects riders to drivers.

Other app-based businesses offer similar rationales.

Despite the Dynamex decision, "we believe drivers are independent contractors," White wrote in an email. "We will continue to support efforts to modernize labor laws in ways that preserve the flexibility drivers tell us they value while improving the quality and security of independent work."

But disputes over employee classification are not new. The state Supreme Court's strict test replaces a looser standard that had been used to challenge companies' independent contractor status since 1989.

Trucking companies, for example, have been sued over the years for relying on independent contractors. The California Trucking Association and the Western States Trucking Association have filed suits to overturn Dynamex. Like the Dynamex drivers found to be illegally classified, truckers often must pay for their own vehicles, gas and expenses.

In Southern California, drivers at the ports of Los Angeles and Long Beach have filed multiple class-action suits. And since 2011, the California labor commissioner has ordered port companies to pay more than $50 million in back wages and damages to drivers misclassified as independent contractors.

As the Legislature gears up for a fight, companies are enlisting workers to oppose codifying Dynamex. Already, businesses have unleashed more than 6,000 emails and held dozens of meetings with elected officials and their staffs, although the precise language of the bill is not expected to be unveiled until next month.

A Chamber of Commerce sponsored website, the I'm Independent Coalition, offers contractors a form letter urging elected officials to "help protect my freedom." DoorDash, the food delivery giant, emailed all its "dashers" to write legislators to "suspend the court decision and embrace the modern workforce."

But Gonzalez, who is writing the Dynamex bill, countered: "If employers don't pay their fair share, the cost falls on taxpayers. People without unemployment insurance often rely on food stamps or (welfare). People without health insurance go to emergency rooms."

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