Gig economy changes what it means to be an 'employee' |
Some people claim there's a new category of "worker" arising from the gig economy, a category typified by Uber drivers. According to Uber, the drivers are not "employees." But according to the drivers, they're not "independent contractors," either.
Proponents of an intermediate category, which the Hamilton Project's Seth D. Harris and Alan B Krueger call "independent workers," believe these positions qualify for some "employee"-type protections and benefits, but they fall short of complete employee status. On Labor's Benjamin Sachs writes in a January 2, 2017, article that the Obama administration appeared to be favorably disposed toward authorizing a third type of worker category. Officials and labor representatives agree that gig workers need more protections than are afforded independent contractors. They couldn't agree on whether the best way to protect these workers is by creating a new type of employment classification. Sachs points out that a third worker category created by the current administration would likely benefit employers at the expense of workers. Sachs writes that the legal definition of "employee" may be complicated, but it is also "fully adaptable to the new systems of work organization." Courts have classified as employees workers who set their own schedules, hold many jobs, and are not directly supervised. It's unlikely that the current Congress would enact legislation making it clear that gig workers have a right to full "employee" status, but Sachs believes state legislators and court decisions are viable avenues for extending employee status in the short term. Worker's rights imperiled by employer-friendly regulators The new administration's intention to savage worker protections was evident from the moment Andrew Puzder was nominated as Secretary of Labor. Puzder is CEO of CKE Restaurants, which owns the fast food chains Hardee's and Carl's Jr., among others. Jim Puzzanghera and Lisa Mascaro of the Los Angeles Times write in a February 15, 2017, article that Puzder withdrew from the nomination one day before his Senate confirmation hearings were to begin. Puzder was certain to face Democratic opposition in those hearings, but according to Puzzanghera and Mascaro, Senate Republicans were questioning the nomination in light of allegations about spousal abuse and hiring a housekeeper who was in the country illegally. Puzder's successor nominee, Alexander Acosta, is seen as more likely to win approval, but he comes with some baggage of his own, as Politico's Josh Dawsey and Marianne LeVine report in a February 17, 2017, article. When it comes to trampling on the rights of workers, nobody has a worse reputation than Puzder. In a February 10, 2017, article on the American Prospect, Bill Raden explains how CKE is able to hide behind a bogus franchise agreement to avoid responsibility for federal employment discrimination lawsuits. An investigation by Capital & Main found that Carl's Jr. and Hardee's had the highest number of such suits filed against them of any hamburger chains. Franchisors such as CKE have long claimed their franchise agreements give franchisors "zero oversight and management control" over the vast majority of their franchisees, to quote a CKE spokesperson. A settlement in August 2016 between the Department of Labor and Subway is one of several recent findings that punch serious holes in the "no oversight" argument. Piercing the 'no oversight' veil After analyzing CKE's 2012 franchise agreement (the most recent publicly available), Capital & Main determined that CKE gives franchisees control over only two areas: the price of menu items, and employment/compensation matters. Every other aspect is controlled by CKE's "System," which Raden describes: "The System spells out everything—from the look of the restaurant, to the making, marketing, and selling of the products it offers, to the training and governance of employees. A franchisee must obtain CKE approval for the location of a restaurant, its layout and design, its promotional materials, its menu items, its vendors and its bookkeeping system. It must submit weekly and annual financial reports to CKE and, for its part, CKE can audit or inspect a restaurant at any time, as well as order training for franchise employees and demand repairs or major renovations at the franchisee’s expense." It is becoming more difficult for franchisors to sell this arm's length relationship to courts and regulators. In 2014, the National Labor Relations Board included parent McDonald's Corp. in complaints of unfair labor practices against its franchisees. Capital & Main's investigation uncovered what one consumer advocate calls "a culture in these restaurants [of] noncompliance with a lot of the basic labor and employment laws." Imagine the fate of those laws if Puzder were put in charge of enforcement. ----------------------------------------------------- Who's enforcing privacy regs, the FCC or the FTC? Actually, neither Last spring, the U.S. Federal Communications Commission announced plans to regulate internet service providers as public utilities. The change was part of the agency's groundbreaking net-neutrality rules. The FCC rules would have required that ISPs get the explicit consent of their customers before they could share the customers' personal data. To no one's surprise, the regulations were quashed by the new Republican regime. Under the Federal Trade Commission's privacy regulations that applied previously, ISPs required explicit opt-in only when they intended to share customers' health or financial information, as Amir Nasr writes in a September 27, 2016, article on Morning Consult. The thinking at the time was that the FCC rules would apply to ISPs, and the FTC rules would govern web services such as Google, Amazon, and Facebook. Thinks got sticky in August 2016 when a three-judge panel of the U.S. Court of Appeals of the Ninth Circuit ruled that the FTC no longer had authority to regulate common carriers, including mobile and internet services. Naked Capitalism's Jerry-Lynn Scofield writes in a September 3, 2016, article that section 5 of the FTC Act exempts common carriers. The court found that, as implied by the statute, "common carrier" was a status independent of whether a company actually offered common carrier services. According to Scofield, this means "any company that creates or purchases either a phone company or an internet service provider (ISP) can escape federal consumer protection regulations entirely." New FCC Chairman Ajut Pai has promised to work with the FTC's acting Chairwoman Maureen Ohlhausen to devise new privacy rules that will apply to ISPs and web services alike, as The Hill's Harper Neidig writes in a March 5, 2017, article. If the FCC refuses to enforce privacy regulations against common carriers and internet services, and the FTC is precluded from regulating these companies, what happens the next time there's a Yahoo-scale data breach? The conservative Free State Foundation has called for Congress to remove the common-carrier exemption from the FTC Act so FTC rules would apply to all internet companies. The Hill's Terrell McSweeney argues in favor of allowing both the FCC and the FTC to enforce privacy regulations. At present, it appears responsibility for enforcing privacy rules is in the hands of nobody. -------------------------------------------------------- Linkapalooza These days, reading the news is like watching a train wreck in super-slow motion. Only the train appears to have no end. If you're looking to keep score of the administration's crimes against truth, justice, and the American way, Mother Jones has your scorecard: a "timeline... of authoritarian tendencies." Stephen King, eat your heart out. If there's one topic I've written about more than any other, its keeping your Facebook activities private. Social Media Today offers a really, really, really, really long infographic showing everything you ever wanted to know about Facebook privacy, but were too busy clicking the Like button to ask. It used to be, all you needed to protest was your voice, and maybe a sign, or a button, or a creative prop. These days, a protester with a smart phone has to take precautions to protect against searches of the device by arresting officers. The Electronic Frontier Foundation offers 10 digital tips for protesters, which include encrypting your entire device, disabling the fingerprint unlock, and using burner phones (prepaid, disposable). I have a feeling the burner-phone market is about to go through the roof. |
