WHO'S AN EMPLOYEE NOW? CLASSIFYING WORKERS IN THE AGE OF THE "GIG" ECONOMY.

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Date: May 2022
From: Fordham Urban Law Journal(Vol. 49, Issue 4)
Publisher: Fordham Urban Law Journal
Document Type: Article
Length: 19,381 words
Lexile Measure: 1970L

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Introduction 960 I. The Independent Contractor Designation: Its Genesis as a "Narrow Exception" and Its Application to Today's Workers .. 966 A. Origins of the Independent Contractor and Its Evolution 966 B. Employee Defined: A Patchwork Quilt of Tests 970 i. The Right to Control Test 971 ii. The Economic Realities Test 974 iii. The ABC Test, Its Enactment by States, and Its Applications in the Gig Context 978 1. Overview of the ABC Test 978 2. ABC Test: A Problematic Subversion 980 a. Prong B: Outside of the Employer's Places of Business 980 b. Prong A: Contract Requirement 985 iv. Viability of the Employee-Independent Contractor Dichotomy in the Context of the Gig Economy 987 II. Disrupting the Dichtonomy: The Dependent Contractor 989 A. Proposal of a Third Category.... 989 B. Challenges of a Third Category 991 III. Maintaining the Dichotomy with Reform: Analyzing Workers' Rights and Employment Benefits Through the Concentric Circles Lens 993 IV. Application of the Concentric Circles to the Gig Universe and Proposal for Modification 944 A. The ABC Test Alone Should Determine Accountability for Workplace Injury 999 B. Contribution to Collective Funds Should Be Mendatory 1000 Conclusion 1000

INTRODUCTION

$4.7 million. That number represents the combined contributions Uber and Lyft made to lobbying efforts in 2020. (1) Compare this to the $ 12.50 Ben Valdez, a California-based Uber driver, who drives for the company 12 to 15 hours a day, three days per week, receives per hour. (2) In today's economy, which the "gig economy" occupies a growing share, greater competition means more pressure on companies to lower prices. From the worker's perspective, lower prices translate into lower wages and fewer employee benefits. (3)

Because of how labor and employment laws have developed in the United States, employers are responsible for extending and paying for many essential benefits, such as health insurance, disability insurance, unemployment insurance, and more. (4) A problem lies in the fact that workers, like Mr. Valdez, who provide services via platform companies, (5) are largely not legally classified as employees, rendering them without legal protections and benefits associated with "traditional" employment. (6) As this Note explains, in addition to lacking assurance of making federal statutory minimum wage along with other basic rights, Valdez and others, who work for platform companies, such as Uber, must take on the financial and tax responsibilities of independent business entities, while not reaping the benefits and, at the same time, often remaining financially dependent on the platform. Change is seemingly approaching as the Department of Labor, the Internal Revenue Service, and other stakeholders discover and increase enforcement mechanisms against the improper classification of workers as independent contractors. At the same time, in part due to lack of regulation, and intense lobbying efforts, the law in its current state continues to accommodate platform companies' business model, putting little pressure on them to provide workers with bare minimum rights, such as a livable wage. One problem long-facing employers, workers, legislatures, and courts is that of defining the contours of...

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Gale Document Number: GALE|A705927145