The Great Gig Economy and the Law: Independent contractors or Employees?
Updated: May 23
With the recent IPOs of Uber and Lyft, workers' rights are coming into public focus. Some workers for these ride share companies and other gig-tech businesses, as I will call them, claim that they are not making enough money to live. These workers insist that they should at least be making minimum wage once their expenses are considered. Allow me to ask the following open ended question which I am not going to answer at this time: who should pay for the shortcomings of the gig economy -the taxpayer, the business assigning tasks to their workers, the shareholders, or the independent contractors? Maybe, I should ask this question in another way: who should reap the rewards and by how much?
These gig-tech companies maintain that the people who do the heavy lifting are merely independent contractors. Unfortunately, there is no clear answer as to whether the gig worker is an employee or an independent contractor. The current law in Tennessee seems to be in favor of the gig-tech companies. For the purpose of this article, I will refer to Uber as an example because of my own familiarity with Uber. Please keep in mind that Uber is a microcosm of the gig economy.
I am familiar with Uber; I briefly drove for Uber during the summer of 2017. I did not drive the most fuel efficient vehicle. I drove a 2006 Honda Accord with a V-6 engine. I made about 50 trips, if I recall correctly. This was done over four to five months. Sometimes I would drive on the weekends during the night, during the weekday, or whenever I had a block of time that I could spare to dedicate to my Uber venture. I will admit that I often did not participate during surge times. Usually, by the time I got to the destination experiencing the surge rate, the surge rate was not in force. Many of my trips were local, within Murfreesboro. My few times that I drove to Nashville to get more passengers were not lucrative by any stretch of the imagination. I may have accumulated more trips, but often these were short trips within Nashville. My most financially rewarding trip was taking someone from a hotel in Murfreesboro to Nashville BNA airport. After I included all my other expenses, I made less than minimum wage. During my time with Uber, I made a little less than $500. Thus, the gross amount of income I made was less than $10 per trip, but this does not account for gasoline, car maintenance, the time I waited to receive a notice to pick up a customer, and additional insurance that I felt was necessary to minimize my risk to engage in using the Uber application. Despite my lack of success with Uber and my lack of bargaining power, I was never under any impression that I was an employee of Uber because I could elect when I worked. Uber also did not tell me what to do. I knew that being a driver for Uber was only temporary, supplemental to whatever else I wanted to do for income.
I must digress. Before I address the main topic of this article, I want to point out that in the minority of states, including Tennessee, the state minimum wage has not increased since 2009. (For the sake of this blog entry, I will stick with the absurd assumption that the
federal government's way of calculating inflation is correct.) Currently, in
Tennessee, the minimum wage is $7.25; this is the same minimum wage mandated by the
federal government. The last time the federal government raised the minimum
wage was in 2009. Using the CPI (inflation) calculator provided by the Bureau of Labor Statistics, that minimum wage has the same buying power as $8.58 in today's dollars. (I used the month of August 2009, since the minimum wage went into effect on July 24, 2009.) In other words, minimum wage ought to be at least $8.58 in order for today's minimum wage earner to have the same purchasing power as they did in 2009. Another way of thinking of this is that Tennessee employers who have minimum wage workers are receiving an 18% discount on labor compared to the employer back in 2009. A recent MIT study indicates that a "living wage" for the people of the greater Nashville area is $11.63, which is significantly higher than Tennessee's current minimum wage. Therefore, I think it is not a stretch to consider that the majority of workers who only rely on gig work are not earning a "living wage".
What is an employee? The United States Circuit Court of Appeals for the
Ninth Circuit, established a six question test to determine if someone is an
employee in the case of Donovan v. Sureway Cleaners (1981).
The test is this:
1.) The degree of the alleged employer's right to control the manner in which
the work is to be performed;
2.) the alleged employee's opportunity for profit or loss depending upon his
3.) the alleged employee's investment in equipment or materials required for
his task, or his employment of helpers;
4.) whether the service rendered requires a special skill;
5.) the degree of permanence of the working relationship;
6.) and whether the service rendered is an integral part of the alleged employer's
The court in Sureway Cleaners tempered this test by saying that no one factor is more important than the other and courts "should examine the 'circumstances of the whole activity'," and should consider "the economic reality."
The Internal Revenue Service (IRS) has a list of 20 factors which indicates whether a person is an employee or an independent contractor for the purpose of administering taxes. See Rev. Rul. 87-41, 1987-1 C.B. 296 (which provided guidance with respect to section 530 of the Revenue Act of 1978). Most of these factors can be found in IRS Publication 15
-A. These 20 factors determining whether a person is an employee can be
divided into three general categories: 1.) who controls the behavior; 2.) who
has financial control; 3.) and what is the nature or type of relationship?
Although the IRS criteria for determining an employer-employee relationship seems to include more factors, they are roughly parallel to the test set by the 9th Circuit Court of Appeals. Similarly,Tennessee's workers' compensation law, Tenn. Code Ann. §50-6-102, (12) (D) (i)(a-g) (2018) lists the following factors to consider when defining a worker as an employee or as an independent contractor:
(a) The right to control the conduct of the work;
(b) The right of termination;
(c) The method of payment;
(d) The freedom to select and hire helpers;
(e) The furnishing of tools and equipment;
(f) Self-scheduling of working hours; and
(g) The freedom to offer services to other entities
Using the previous factors, one can see that Tennessee law and federal law supports many of the gig-companies' arguments that their workers are independent contractors. These companies can claim that they exercise little control of their workers' performance. They can argue that their worker is not paid regularly but for the job that the worker does. The worker retains the ability to incur profits or to incur losses. The gig-tech companies do not offer specific training for their workers to behave a certain way. Also, the worker is usually responsible for the furnishing of the tools and equipment. The companies can show that workers have the choice to terminate their relationship with the gig-tech company any time they want, and that the workers are free to offer their services to other companies when they want. On the other hand, there are a couple of factors that are in favor of the workers who want to claim that they are employees. Those factors are that the workers often do not have any special skills and that the services that they render is an integral part of the alleged employer's business. The worker can also claim that the gig-tech company is furnishing the technology so that the worker can advance the gig-tech company's goals. A brief survey of employment law seems to support the gig-tech companies because of how much autonomy the worker seems to have. The courts seem to weigh this more heavily than anything else.
Personally, I think what ultimately determines an independent contractor is equally both the worker's ability to bargain for the work that they do, and the worker's autonomy to execute performance.
The gig economy is here to stay, but will the law catch up to the needs of the workers and the gig-tech companies? I imagine this a question that is more political, which may not be resolved by the legal system or by market-driven economics. Perhaps the answer lies in both, changes to the law and changes to the market. If nothing can be done, I imagine the workers will go to their next gig.
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