1.writing 300 words summary about these 3 articles, so probably 100 words each article.2.After you h

  

1.writing 300 words summary about these 3 articles, so probably 100 words each article.2.After you have completed the readings and your summary, your assignment for Thursday, August 1st, is as follows:Using as large piece of paper (flip chart size or large enough so everyone in the class can see it from the front of the room) create a diagram that explains the fissured workplace and the impact it has on workers. In addition to the readings you can also take a look at the Fissured Workplace website. http://www.fissuredworkplace.net/ (Links to an external site.) It may help you with some “inspiration” for your diagrams.A few Ground Rules: 1. You cannot use sentences or bullet points for your diagram.2. You can use words to describe things or stuff on the diagram.3. Try to make your diagram eye appealingYou can make the diagram on words/excel/powerpoint or something, i will make it on paper by myself. thx
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Rights at Risk: Gig Companies’ Campaign
to Upend Employment as We Know It
Ride-hailing giant Uber and aspiring “Uber of home services” Handy, along with other tech-companies-cumservice-providers, have joined powerful corporate allies and lobbyists on a far-reaching, multi-milliondollar influence campaign to rewrite worker classification standards for their own benefit—and to workers’
detriment. Their goal: to pass policies that lock so-called “gig” workers who find jobs via online platforms
into independent contractor status, stripping them of the basic labor rights and protections afforded to
employees and allowing the companies to evade payroll taxes and worker lawsuits. This report sketches the
policy campaign, the cast of characters involved, when and where they have mounted efforts, what might be
driving them, and the tactics they are using to advance their cause. It concludes with some examples of
successful resistance to these efforts, from which lessons can be drawn for the fights to come.
Gig company carve-outs
The emergence of technology-mediated gig work
In the last decade, companies that straddle the technology and service sectors have emerged. These socalled “gig” companies use internet-based technology platforms, accessible via personal computing
devices like smartphones, to coordinate and manage on-demand piecework in a variety of service
industries, from taxi to food delivery to domestic work. 1 Ride-hailing giant Uber, food delivery service
Postmates, and home services provider Handy are well-known examples.
Tech-mediated gig
work is the latest
iteration of a 50year-old pattern of
workplace fissuring.
Tech-mediated gig work is the latest iteration of a 50-year-old pattern of workplace
fissuring—the rise of “nonstandard” or “contingent” work that is subcontracted,
franchised, temporary, on-demand, or freelance.2 Gig companies are simply using newfangled methods of labor mediation to extract rents from workers, and shift risks and
costs onto workers, consumers, and the general public. This recognition helps to debunk
a narrative put forward by gig companies that their ”innovation economy” represents an
inevitable future of work that must be protected and nurtured exactly as is, at all costs,
lest we foil our economic destiny.
According to the latest estimates, gig workers comprise only a small share—about one percent—of the
U.S. workforce.3 In many cities, that share is likely larger—a recent analysis found that if Uber classified
its drivers as employees, it would be the single largest private-sector employer in New York City. 4
Many gig workers, who are disproportionately black and Latino, 5 work in occupations that have long
been plagued by industry efforts to erode labor standards—in the form of misclassification and legal
carve-outs.6 In parts of the economy such as the taxi industry and the domestic work sector, the impact of
the encroaching gig model reverberates far beyond those engaged by these companies, applying
downward pressure on job quality for a much larger set of workers. And gig companies have been joined
by more traditional companies to push polices designed to scale up their model across the U.S. economy.
Many of the service industries in which gig companies operate have been bastions of organized labor,
especially in cities, where gig work is most prevalent.
Gig companies’ misclassification business model
The business model used by many gig companies is based on a deception: to engage the people who
actually carry out the core business, and over whose work significant control is exerted, as independent
contractors instead of employees. These companies want it both ways: to act like employers but not to be
held accountable as such. They impose take-it-or-leave-it non-employee contracts on their workers while
setting fee rates, extracting penalties, and dictating when and how workers interact with customers. Due
to their practices, they have come under fire for employee misclassification (see sidebar below for more
on what employee misclassification entails).
Employee misclassification
Under the current U.S. labor regulatory regime, employee status confers to workers a host of labor rights and protections hard-won
by the labor movement beginning in the 19th century. Independent contractor status does not confer those rights and protections;
independent contractors are more vulnerable to economic insecurity and workplace mistreatment and physical harm.
Labor Right or Protection
Right to organize and bargain collectively
Minimum wage and overtime protections
Access to unemployment insurance
Access to workers’ compensation
Employer contributions to Social Security, retirement
Anti-harassment, discrimination protections
Employee
Yes
Yes
Yes
Yes
Yes
Yes
Independent Contractor
No
No
No
No
No
No
Worker classification standards that differentiate employees from independent contractors vary somewhat across U.S. labor laws
and regulations, but their core inquiry is usually concerned with whether a worker is truly operating an independent business, free
of control by another party.
Since the early days of U.S. labor regulation, businesses have willfully misclassified employees as independent contractors to avoid
complying with labor standards and tax laws. Companies have substantial economic incentive to misclassify and can pocket as
much as 30 percent of payroll costs when they misclassify workers. Companies that break the law often weigh payroll savings,
reaped from eliminating social insurance contributions and obligations to meet labor standards, against the risk of litigation and
governmental fines and penalties—risks that have long been quite low due to legal barriers to workers filing claims and proving
cases, meager penalty schemes, and under-developed and under-resourced enforcement systems.
Employee misclassification, itself, is a freestanding legal violation in some jurisdictions, and is often an antecedent to payroll fraud
and a host of labor standards violations.
Recent years have seen an uptick in employee misclassification claims by workers and innovative efforts by government entities
and worker advocates to crack down on the practice. Still, employee misclassification remains pervasive, especially in sectors such
as transportation, building services, logistics, home care, and construction. In the last decade, companies that straddle those sectors
and the technology sector have emerged. Gig companies like Uber and Handy use (and hide behind) digital technologies to dispatch
workers and control their work, while imposing independent contractor agreements on their workers. Many gig companies make
filing misclassification claims cost-prohibitive by slipping forced arbitration clauses with class-action waivers into employment
contracts.
In addition to its extensive worker impacts, employee misclassification disadvantages responsible businesses that pay their share
of payroll taxes and abide by labor standards, shifts liability onto consumers who become sole employers, and depletes social
insurance systems.
Handy Technologies is a case in point. Founded in 2012, the New York City–based company has rapidly
expanded its reach into residential cleaning, repairs, and other home services. Though the company has
enlisted tens of thousands of domestic workers, handymen, and others across the United States, Canada,
NELP | RIGHTS AT RISK: GIG COMPANIES’ CAMPAIGN TO UPEND EMPLOYMENT AS WE KNOW IT
2
and the United Kingdom to provide home services via its platform, it only calls a few hundred people its
employees.7 Like the other gig companies, its business model is built on directly employing as few people
as possible, engaging the people who actually carry out its core business—providing home-based
services—as independent contractors.
Like many other gig economy players, Handy has faced resistance to its business model. The company
exerts significant control over the work of those providing services through its platform, down to the fees
they should charge, when and how they can interact with customers, and protocols for using the
bathroom. At the same time, the company foists independent contractor agreements on its workers. Due
to its practices, Handy workers have filed five class-action lawsuits against the company, alleging
misclassification and charges such as underpayment of wages (off-the-clock, minimum wage, and
overtime violations), unlawful deductions, and failure to offer rest and meal breaks. 8 In 2017, the
National Labor Relations Board issued a complaint against Handy alleging that, since at least June 4,
2015, the company “misclassified its cleaners as ‘independent contractors,’ while they were in fact
statutory employees.”9
Gig company carve-out policies
Rather than change their practices to comply with basic labor standards and take responsibility for the
work they control and the conditions they create, Handy, Uber, and several other gig companies have
mounted a multijurisdictional policy campaign to rewrite the rules of worker classification to carve
themselves out of labor standards and to codify misclassification. At the federal and
Handy, Uber, and state levels, they are pushing both legislative and administrative changes that
several other gig designate all workers who find work via so-called “marketplace platforms” as
companies have independent contractors who are not covered by labor and employment protections.
mounted a
multijurisdictional
campaign to
exempt themselves
from labor
standards and to
codify
misclassification.
Uber and Handy’s chief political strategist, Bradley Tusk, summed up the strategy:
“What is ultimately a better business decision? To try to change the law in a way that
you think works for your platform, or to make sure your platform fits into the existing
law?”10
The recent gig company carve-out effort can be considered a second phase of carveouts following a highly successful effort by transportation network companies (TNCs)
like Uber and Lyft to exempt TNCs from state and local labor standards. 11 The TNC
effort was guided by Mr. Tusk, who has been dubbed “Silicon Valley’s favorite fixer.” 12
Tusk, along with Uber and other TNCs, are back again to push for gig company carveouts that exempt any “qualified marketplace platform” from a range of
Gig company carvelabor standards. At a hearing of the first state gig company carve-out bill in
2016 in Arizona, an Uber lobbyist said, “we just passed the same thing in
out policies create a
Utah,” referring to a TNC carve-out policy that passed a week earlier. Utah
“test” for
would not pass a gig company carve-out until 2018. 13
Gig company carve-out policies create a “test” for independent contractor
status that simply restates the elements of the current business models of
the gig companies. Indeed, the “test” is rigged so that gig companies will
always earn a passing grade and an exemption from labor standards
governing the employer-employee relationship. None of the elements of
these tests addresses the crucial issue of how gig companies are setting
terms of work for those who carry out their core business. Excluded from
independent
contractor status
that simply restates
the elements of the
current business
models of the gig
companies.
NELP | RIGHTS AT RISK: GIG COMPANIES’ CAMPAIGN TO UPEND EMPLOYMENT AS WE KNOW IT
3
examination are the main characteristics of a true independent contractor relationship: that a worker is
free from the control of the company, provides a service outside the normal scope of the company’s work,
and operates a separate business.14
Three phases of carve-out policies
Phase I:
TNC
carve-out policies
Phase II:
“marketplace contractor”
carve-out polices
Phase III:
“uniform worker classification”
policies
Timeframe
2014 to 2017
2016 to present
2019 to present
Scope
Applies to “transportation network
driver” providing service via
“transportation network company”
Applies to “qualified marketplace
contractor” providing service via
“qualified marketplace platform”
Applies to any “person” who signs
contract described below
(“gig” economy may be mentioned in
rationale for policy, but no specific
provision that worker must work for gig
company)
Carve-out
Statement that a “transportation
network driver” is an independent
contractor for the purposes of all or
select state labor and employment
standards.
Statement that a “qualified marketplace
contractor” is an independent contractor
for the purposes of all or select state
labor and employment standards.
Statement that a “person” is an
independent contractor for the purposes
of all or select state labor and
employment standards.
Written contract
requirements
Provision requiring a written contract
stating that the “transportation network
driver” is providing services as an
independent contractor, and laying out a
worker classification test that does not
adequately address whether a worker is
free from the control of the company,
provides a service outside the normal
scope of the company’s work, and
operates a separate business.
Provision requiring a written contract
stating that the “qualified marketplace
contractor” is providing services as an
independent contractor, and laying out a
worker classification test that does not
adequately address whether a worker is
free from the control of the company,
provides a service outside the normal
scope of the company’s work, and
operates a separate business.
Provision requiring a written contract
stating that the “person” is providing
services as an independent contractor,
and laying out a worker classification test
that does not adequately address
whether a worker is free from the
control of the company, provides a
service outside the normal scope of the
company’s work, and operates a
separate business.
Worker impact
Strips Uber and other TNC drivers of
labor rights and protections; places
downward pressure on labor standards
in taxi/car service industry
Strips Uber, Handy, Postmates, and
workers using all labor platforms of labor
rights and protections; places downward
pressure on labor standards in multiple
service sectors; Incentivizes businesses
to incorporate online labor platform
technology in order to classify workers as
independent contractors
Strips any worker, including Uber, Handy,
Postmates, and workers using other
labor platforms, of labor rights and
protections; places downward pressure
on labor standards in multiple service
sectors; Allows businesses to classify
workers as independent contractors if
they meet simple set of criteria
In some states, including California, Alabama, and New York, gig companies have sought to sweeten their
legislative offer and deflect attention from the labor standards carve-outs by including or informally
offering lawmakers (usually Democrats) a small “portable benefits” contribution for gig workers. 15 Thus,
for a short-term lobbying expense, and a contribution of around 2 percent of their workers’ incomes, the
companies save up to 15 times that amount in the payroll costs they would have borne as employers. 16
These programs offer workers meager benefits, and they undermine existing social insurance systems.
In Texas, an administrative rule change carving gig companies out of state unemployment insurance
regulations was proposed by a majority (two of three commissioners) of the Texas Workforce
Commission (TWC) in December 2018 and is pending approval. 17 According to documents obtained by
the Texas-based Workers Defense Project via a public records request, Handy and Tusk Strategies, both
NELP | RIGHTS AT RISK: GIG COMPANIES’ CAMPAIGN TO UPEND EMPLOYMENT AS WE KNOW IT
4
unregistered as lobbyists in Texas at the time, had been in communication with the TWC regarding the
carve-out beginning December 2017, supplying model language for the policy.18
State gig company carve-out policies
State
Policy
Status
Local/state labor
rights/protections*
stripped
Notes
TNC** labor
standards
carve-out
AZ
HB 2652 (2016)
Bill passed; law effective
8/6/16
WH, H&S, PS, HR, UI,
WC
Retroactive – applies prior to passage of law;
does not apply to delivery sector
CA
AB 2765 (2018)
Bill withdrawn 11/30/18
WH, OT, H&S, PS,
PFL, UI, WC
Legislation would have created voluntary
portable benefits contribution
CO
SB 18-171 (2018)
Bill passed Senate,
stalled in House
UI, WC
Legislation targeted at state UI and WC
regulations
AL
SB 363 (2018)
Bill stalled in Senate
H&S, HR, UI, WC
Legislation created voluntary portable benefits
contribution
SB 262 (2016)
FL
HB 7087 (2018)
Bill passed; law effective
7/1/18
WH, H&S, HR, UI, WC
Carve-out provision in state budget bill, targets
“household services” platform workers,
exempts construction sector
HB 221 (2017)
GA
HB 789 (2018)
Bill passed House,
stalled in Senate
H&S, HR, UI, WC
Applied to state and local laws;
IN
HB 1286 (2018)
Bill passed; law effective
7/1/2018
WH, H&S, HR, UI, WC
Does not apply to union hiring halls,
construction sectors
HB 1278 (2015)
IA
SF 2257 (2018)
Bill passed; law effective
7/1/2018
WH, H&S, HR, UI, WC
Retroactive – applies prior to passage of law;
does not apply to delivery sector
HF 2414 (2016)
KY
HB 220 (2018)
Bill passed; law effective
7/14/2018
WH, H&S, HR, UI, WC
Retroactive – applies prior to passage of law;
does not apply to delivery sector
NC
SB 735 (2018)
Bill passed House,
stalled in Senate
WH, HR, H&S, WC
Inserted into an occupational licensing bill
TN
HB 1978 (2018)
Bill passed; law effective
7/1/2018
HR, H&S, UI, WC
UT
HB 364 (2018)
Bill passed; law effective
5/8/2018
HR, H&S, UI, WC
Applies only to “building service contractors”
SB 201 (2016)
TX
Amendment to TX
Admin. Code (2018)
Rule pending
UI
Proposed administrative rule change. In TX, WC
voluntary, no state WH, PS/PFL laws.
HB 100 (2017)
MO
SB 313 (2019)
Bill pending
WH, H&S, UI, WC
Similar to ALEC model bill
WV
HB 2786 (2019)
Bill pending
WH, H&S, HR, UI, WC
Based on ALEC model bill
SB 541 (2015)
HB 992/SB 907
(2015)
HB 4228 (2016)
*WH = wage and hour, such as minimum wage and overtime; H&S = health and safety; PS = paid sick time; PFL = paid family leave; HR = human rights/anti-discrimination; UI
= unemployment insurance; WC = workers’ compensation
**TNC = transportation network company
The federal New Economy Works to Guarantee Independence and Growth (NEW GIG) Act of 2017 (S.
1549/H/R. 4165) is a revision of the Internal Revenue Code that would provide safe harbor to gig
NELP | RIGHTS AT RISK: GIG COMPANIES’ CAMPAIGN TO UPEND EMPLOYMENT AS WE KNOW IT
5
companies and other businesses to classify workers as independent contractors if they pass three tests,
focusing on the following:
(1) the relationship between the parties (i.e., the provider incurs expenses; does not work exclusively for a
single recipient; performs the service for a particular amount of time, to achieve a specific result, or to
complete a specific task; or is a sales person compensated primarily on a commission basis);
(2) the place of business or ownership of the equipment (i.e., the provider has a principal place of business,
does not work exclusively at the recipient’s place of business, and provides tools or supplies); and,
(3) the services are performed under a written contract that meets certain requirements (i.e., specifies that
the provider is not an employee, the recipient will satisfy withholding and reporting requirements, and that
the provider is responsible for taxes on the compensation).19
The federal bill also includes an income tax withholding provision meant to offset revenue losses that
result when employees are reclassified as independent contractors. 20
NELP | RIGHTS AT RISK: GIG COMPANIES’ CAMPAIGN TO UPEND E …
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