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Gig Economy Rule Faces Very Uncertain Future | Fisher Phillips

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If it had been released at some other point in time and under different circumstances, perhaps gig economy businesses would be celebrating the release of a federal rule that makes it easier to classify workers as independent contractors. But the fact that it wasn’t formalized until the waning days of the current administration means that the rule faces long odds of ever taking effect. We wrote about the rule in our Legal Alert that can be found here – feel free to check it out if you want the particulars of what the rule could bring to the table when it comes to establishing a worker classification standard. The Alert also provides details regarding the roadblocks the rule faces: the impending “midnight” memo to be released on January 20 that will temporarily freeze this rule and prevent it from taking effect on March 8 as planned; the probable litigation that will be filed to block the rule from taking effect on a permanent basis; an incoming administration that will almost certainly take additional steps to shelve the rule; and a possible replacement rule that would almost certainly be worker-centric. Add to that the recent news that Marty Walsh will soon head the Labor Department – his labor background makes it all but certain that he will oppose this rule – and you can see why it seems unlikely that the rule will ever become the law of the land.

One possible avenue for the rule to be salvaged? We could see business groups line up to file their own litigation in the hopes of resurrecting the rule once it is stalled or put on hold. This has happened before: several years ago, after the Obama administration finalized a pay data collection rule and the Trump administration blocked it before it could take effect, a consortium of supporters filed suit and convinced a court to breathe new life into the rule and order it into effect. We could see a similar dynamic unfold over the course of 2021.

One interesting note: the finalized rule contains a series of illustrative examples to demonstrate how the determinative factors would be analyzed under the facts presented, and one is a classic gig economy situation.

Example. An individual accepts assignments from a company that provides an app-based service linking those who need home-repair work with those who perform home-repair work. The individual is able to meaningful increase his earnings by exercising initiative and business acumen and by investing in his own equipment. The company, however, has invested millions of dollars in developing and maintaining the app, marketing itself, maintaining the security of information submitted by actual and prospective customers and workers, and monitoring customer satisfaction with the work performed.

Application. The opportunity for profit or loss factor favors independent contractor status for the individual, despite the substantial difference in the monetary value of the investments made by each party. While the company may have invested substantially more in its business, the value of that investment is not relevant in determining whether the individual has a meaningful opportunity for profit or loss through his initiative, investment, or both.  

We’ll monitor the situation as it develops over the course of the next few weeks and months and provide updates as warranted.

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Economy

EU Launches Gig Economy Consultation – Employment and HR

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European Union:

EU Launches Gig Economy Consultation


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The European Commission has launched a six-week
consultation with unions and employer bodies on how to improve
working conditions for digital platform workers.

On 24 February 2021, the European Commission launched the first
phase of its consultation on working conditions for digital
platform workers in the gig economy.

The consultation comes as the COVID-19 crisis has accelerated
the digital transformation of the European economy and the
expansion of the platform model: 11% of the EU workforce say they
have already provided services through a platform. It will tackle
particular areas of concern around health and safety and limited
access to social protection and benefits for platform workers.

European trade unions and employers’ bodies will be asked to
give their views on the following questions:

  • Do you consider that the European
    Commission has correctly and sufficiently identified the issues and
    the possible areas for EU action?

  • Do you consider that EU action is
    needed to effectively address the identified issues and achieve the
    objectives presented?

  • If so, should the action cover all
    people working in platforms, whether workers or self-employed?
    Should it focus on specific types of digital labour platforms, and
    if yes which ones?

  • If EU action is deemed necessary,
    what rights and obligations should be included in that action? Do
    the objectives presented in this document present a comprehensive
    overview of actions needed?

  • Would you consider initiating a
    dialogue under Article 155 TFEU on any of the issues identified in
    this consultation?

(Article 155 of the Treaty on the Functioning of the European
Union provides for dialogue between employers and labour unions or
representatives)

The consultation will be in two stages, and the results will
feed into the legislative initiative on platform work which the EU
has promised by the end of 2021.

The consultation document is available here.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

POPULAR ARTICLES ON: Employment and HR from European Union

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New Yorkers Turn to “Gig” Economy to Make Ends Meet

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Many New Yorkers who have lost jobs due to the pandemic have turned to the gig economy to make ends meet.

Stasha Gumienny is one of them. She works for DoorDash. She’s a “DoorDasher” on top of her full-time job as a school administrator. She’s been dashing since September after she lost her second job as a restaurant hostess last year.

“I was really feeling the hit of not having that second job,” said Gumienny. “I had visited the food pantry a couple of times.”


What You Need To Know

  • Stasha Gumienny is a single mom who works at a school during the day and door dashes in the evenings and on weekends to make ends meet
  • Gumienny lost her second job as a restaurant hostess in 2020, when restaurants shut down at the height of the pandemic
  • According to Lyft, 20 percent of their drivers reported driving more during the pandemic after getting laid off or having their hours cut due to COVID-19

As a single mom, losing that second income was tough.

“I was in a low. I was really getting nervous,” said Gumienny. “I had a couple financial meltdowns. I kept seeing the DoorDash availability on Indeed, and I said, ‘You know what, what do I got to lose?'”

She’s not alone.

According to DoorDash, nearly two million people became door dashers from March to September of 2020.

According to ride-share app Lyft, 20 percent of their drivers said that they drove more during the pandemic because they were laid off or had their hours cut due to COVID-19.

With DoorDash’s flexible hours, Gumienny usually dashes on weeknights and weekends. She leaves her first job at 3 p.m. and starts door dashing by 4 p.m., all so she can make it home to her daughter in time for dinner.

“I do sometimes feel guilty because I’m giving up those Saturdays and Sundays during prime play hours to be with my daughter, but I also know that I’m modeling for her what it takes, and what I’m doing,” said Gumienny. “And she’s learned the quality of a dollar.”

Each delivery can bring in about $6 to $10, and those deliveries add up.

“That might not seem worth it to someone, but if you do this three times a night, or a week, and maybe one weekend, you’re going to see almost $200,” said Gumienny.

After just two hours on the road, she’s done for the night and heads home to make dinner for her 11-year-old daughter, Hannah.

“This is why I wouldn’t want to DoorDash past 6 o’clock. Hannah’s doing homework, and we try to get a good night in,” said Gumienny, as she prepared dinner for the night.

She does this multiple times a week, a grueling work day all to make life a little easier for her and her daughter.



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Economy

‘Lapsis’ and the Rise of Gig-Economy Sci-Fi

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Ray Tincelli, a good-humored, pot-bellied, middle-aged guy with a “’70s mobster” vibe and money troubles, is looking for a new gig. His day job as a courier for a sketchy lost baggage company isn’t cutting it. Played with hangdog charm by Dean Imperial—he looks like Jeremy Piven gone to seed—Tincelli is a brusque Queens dude who could be imported from any number of prestigious cable dramas. For these reasons and more, he’s the offbeat, magnetic center of Lapsis, the funny and surprisingly humane new science fiction indie from first-time feature director Noah Hutton.

The grubby world Ray inhabits looks like ours, but the details are slightly skewed. Ray’s younger half-brother Jamie (Babe Howard), a once-hearty hiker, is now sidelined with a mysterious chronic fatigue syndrome called Omnia. This syndrome is widespread enough that there’s an entire scammy cottage industry around treating it, and Ray is hoping to get his brother into a treatment center. After his courier job is kaput, he seeks advice from a slippery neighborhood character named Felix (James McDaniel), who hooks Ray up with a “cabling medallion” as long as Ray promises to share a cut of his profits. A twist on a taxi medallion, the cabling medallion is a black-market ticket into the world of “cabling,” a bustling new line of contract work where “cablers” spend their days stringing yards upon yards of fiber-optic cables through wooded areas to attach to large metal boxes plopped in forests. It’s all in service of quantum computing, a new information superstructure that has taken over the globe. According to Felix, they’re paid handsomely for their troubles. And so Ray goes forth, into the woods, huffing and puffing his way toward the enigmatic boxes and potential financial freedom.

Lapsis, which is currently available on VOD, is a film in the tradition of lo-fi sci-fi, a genre of independent, dialog-dense science fiction without high-budget spectacle. Think Robot & Frank, Primer, or Being John Malkovich. Or think Boots Riley’s Sorry to Bother You, another satire about the gig economy set in a slightly alternate, slightly futuristic reality. Both are political parables, using genre to prod the callous excesses of capitalism. But while Sorry to Bother You is balls-to-the-wall bonkers, Lapsis is a gentler outing, unspooling its story through long hikes in the woods.

The mechanics of cabling make little sense, but the film isn’t concerned with explaining the logic of its quantum computing empire. The setup is as arcane to the average person as bitcoin mining, because the details don’t matter. What matters is that it’s the newest iteration of grunt work in a global economy reliant on low-paying, no-benefits contractors for human fuel. During his first week on the job, Ray doesn’t learn a thing about what plugging the wires into the boxes actually achieves; what he does learn is that the cabling underclass is justifiably and mightily pissed off—and that the cabling medallion he used once belonged to a notorious former cabler known as “Lapsis Beeftech.”

He learns even more once he strikes up a friendship with Anna (Madeline Wise), a seasoned cabler attempting to organize her coworkers. The cabling company uses tiny doglike robots as pacers for its human workers; if a robot passes them on the trail, it can steal their route and take their money. They’re the bane of the cablers, who scheme to derail the little machines, and the brainchild of the original Lapsis Beeftech. Anna helps Ray trap one of the pacers, and they become confidants. And despite his best efforts to keep his head down and continue earning, Ray is quickly embroiled in a larger plot to find the original Lapsis and instigate a worker revolt.

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