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The Gig of Participatory Democracy



The Gig of Participatory Democracy

  • 12/08/20
  • Judge David Langham

The New York Times published an opinion column recently in which the author took issue with the passage of proposition 22 in the recent California election. The title Other States Should Worry About What Happened in California, suggests criticism of the election process there. Quoting from Berkeley professor and former secretary of labor Robert Reich (“Prop 22 is great for employers, but it’s a huge loss for workers”), the article leaves the distinct impression of an opinion that the sadly uninformed voters were simply bamboozled. The participatory democracy in action is lamented rather than celebrated.

The article makes no mention of similar recent participatory democracy actions in places like Mississippi (decriminalization of marijuana) and Florida (drastic increase in minimum wage from $8.56 to $15.00, +75%, over five years). Certainly, the potential exists that these other examples were excluded from the author’s analysis because the particular focus is proposition 22. However, it seems a notable distinction that some participatory democracy is at least implied endorsed (through lack of criticism), while the other is criticized (“relentless and often disingenuous ads”; “hewed to their business interests”; “undermined due democratic process”).

Some might argue that participatory democracy is itself “democratic process,” and question how the process could undermine the process of effectuating the process of democracy?

Similarly, others warned of the impacts of the voter’s choice: Ask not for Whom the Bell Tolls. That harbinger of independent contractor harm notes that “an unprecedented $200 million corporate campaign (ultimately financed by venture capitalists)” and questions “How much corporate money would it take” to promote similar legal distinctions elsewhere. The focus is upon the impacts of tort liability (an injured being limited to the relief available from the tortfeasor or her/his insurance instead of from others like an employer). The author concedes that the law of principal and agent has long effected that outcome. There nonetheless seems to be disappointment that voters would choose to classify drivers as independent contractors rather than employees.

In a general sense, some lament the participatory paradigm because the specific selected language in such voter initiatives is perhaps singularly focused (“hewed to their business interests”), and not subjected to a give and take, a lively debate. Instead, they seem to suggest that the language is drafted from a singular perspective, and the voters reject or embrace the whole of that language, while perhaps focused upon some small segment thereof. There is concern that voters perhaps lack appreciation of the nuance.

That is not new. In Florida, voters recently (2018) chose to amend the state constitution to allow convicted felons to vote without the formalities previously required. The language of that amendment was broad, and afforded the restoration “after they complete all terms of their sentence.” What does “all terms” mean? That might be open to multiple interpretations. The legislature debated it and passed legislation clarifying it. The “all terms” was thereby interpreted to mean “all terms,” including paying the fines and court costs imposed. There was a hue and cry from various quarters lamenting that the language chosen for the amendment “all terms” would be interpreted to mean, literally, “all terms.” The cacophony of invective in the press, deriding and mischaracterizing this was intriguing. No one, apparently, experienced perturbation about participatory democracy, nor faulted those who drafted that ballot effort, their word choice, or the voter’s embracing of that language.

I heard of that recently in an educational program where the recent ballot effort for Mississippi marijuana decriminalization was raised. The speaker noted that because the alteration is “in the constitution,” it is not subject to adjustment, compromise, or facilitation. Instead it is a constitutional mandate of decriminalization within the specific terms and conditions as stated in the ballot measure. Is it possible that the language of that measure is not the ideal, might contain ambiguity or even conflict with other provisions? In a debate, it is hoped, such challenges or conflicts might be highlighted and language might be honed deliberately; however, might some then accuse the legislature itself of engaging in “hewing.”

The upshot of all of this criticism of some ballot initiatives like Proposition 22 is fascinating. There is perhaps some tendency perhaps to hate the game or the player somewhat indiscriminately depending in each particular instance upon which effected an outcome deemed personally dissatisfying.

Are such ballot measures less likely than legislative language to represent either compromise or cohesive language? Is there a potential that the absence of differing perspectives could lead to language that could produce unanticipated results, or be stilted (“hewed”)? Is it possible (please “Say it ain’t so Joe“) that acceptance of process (means) comes down to how one feels positively or negatively about the outcome (end)? Or, is there some inherent strength or weakness in either the ballot measure process or legislative process?

Some might question whether it logical that America’s voters could be utterly bamboozle by one proposal (Proposition 22), and yet absolutely comprehend all the implications of another (decriminalization of pot or inflation of the minimum wage). They might suggest that the propensity for comprehension is instead perhaps reasonably constant (or consistent), and that critics emotional connection to any particular end is instead what influences perspective. Of course, others might argue that instead the critics are merely smarter than the voters.

For example, the times author contends that the employees who support the independent contractor designation have discarded a workable distinction which could recognize the labor law/employment law protections of various statutes including such things as the fair labor standards act (FLSA), which provides a minimum wage federally. He contends that the voter’s will “denies workers full benefits, true minimum wage guarantees and stability.” Presumably, this panoply of “benefits” includes the stability of workers’ compensation.

These attributes of “employee” status were clearly recognized as valuable by the California Supreme Court in 2018. In Dynamex Operations West v. Superior Court, the Court distinguished and discarded precedent that had been California’s law since 1989 (S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (CA 1089)). The Court instead adopted a standard used in other jurisdictions, the “ABC” test. Some contend that this test “presumes” that workers are employees.

When Dynamex was rendered, some suggested that the Court was making law rather than interpreting California’s law. As that discussion persisted, the California legislature stepped in the next year and passed Assembly Bill (AB) 5 to amend California law to comply with the Court’s adopted standard. Remember all the legal scholars lamenting that the Court made law, or that the legislative process was backwards in endorsing it? Crickets. While it codified the ABC concept, the legislative effort provided some exceptions from the ABC application. One critic complained that AB 5

“was broadly written and was passed with little discussion. Confusingly, it contained a mishmash of last-minute exemptions from the ‘ABC’ test that, from a distance, seemed to be based on little more than which industry groups were able to get legislators’ ears.” See JDSupra.

In that context, perhaps the legislative process is seen by some as “hewed?” Was there similar analysis in the press or from academia regarding what persons or groups spent money as regards that legislative effort and process?

Is it possible instead that those workers who supported proposition 22 do not perceive significant Uber-control over their activities. Despite the perceptions of the Times author, is it possible that these employees have worked in a variety of occupations and vocations, and are themselves comfortable with the gig quid pro quo exchange of labor for the compensation afford it? Shall we all respect their perspective as workers, as voters, or shall we condescend from our respective perch regarding their understanding or their decision? Is it possible that through their experiences they are better suited than pundits or observers to define the details of their remuneration agreement, their work relationship?

It is said periodically that labor lacks equal footing to management. Some will contend that in the absence of a union contract, labor is powerless. Others will perhaps say that it is government’s role to step in and protect the worker perspective. It is practical to concede that the labor/management relationship may sometimes be less equal than preferred. Perhaps, the world of work is similar to the world generally in its disparities of equity? Is it possible that life is not fair?

It is also practical to believe that workers who perceive such a disparity might elect to vote with their feet. That is, those who engage in gig vocations might choose to do so, or might alternatively abandon it in favor of other endeavors. Those who lament that workers in the gig environment lack benefits, minimum pay, etc. likely realize any gig workers wanting such benefit need only abandon the freedom of the gig and go to work in the traditional workplace instead. Might that create demand for giggers that drives increased price (wage or payment) from those gig companies to attract workers back from competing vocational choices? When the quid is not sufficient, the quo will not cometh?

It is possible that a great many other factors might enter a workers’ analysis as regards a given payer/payee relationship. Geography, population of alternative earning opportunities, extent of education, convenience of schedule, and more might impact the decision “to gig or not to gig” as regards a particular worker. But, there is perhaps some value in that such alternatives exist for those seeking to earn. Is it possible that some workers might actually, knowingly, prefer some aspect(s) of gig work such that they are willing to forego the “full benefits” offered by the alternative paradigm? Shall we as a society celebrate their freedom to make such decisions or lament the voter’s decision to afford the choice?

Is the analysis any different regarding the wage earner whose employment opportunity evaporates with the 75% minimum wage increase? Some employers may be willing to find a position for someone with no or minimal skills at a minimum wage of eight dollars, but be will perhaps be unwilling to do so at $15.00? Is it possible at $15.00 an hour, the comparative advantage of technology, automation, or artificial intelligence might become more attractive to employers? Might a business vacillating with the decision of adding self-service kiosks be enticed in that direction by the comparative cost of kiosk versus $15 per hour? Where is the hue and cry from academia regarding the voter’s wage decision?

I recently an interesting conversation with an academic, J. Horace Middlemier III. He posited that the current “value meals“ at many fast food restaurants are priced around eight dollars. He proposed to me that as the minimum wage increases to $15 an hour it is practical to anticipate that the cost of that meal might also rise to $15. I suggested that such analysis ignores the fact that other product inputs such as utilities, rent, etc. might not similarly change in parallel to the 75% increase in labor cost. But, with a knowing and lamenting shake of the his scholarly head, he quietly assured me that I simply did not understand. It is indeed gracious of him to pity my ignorance.

It struck me how that dismissal of my questions was perhaps seemingly similar to the dismissal of the voters intellect as regards proposition 22. If I agree with his premise, I am wise; if I ask questions or disagree, I am woefully misinformed or lacking intellect. It is curious to presume that the only way in which proposition 22 could be passed is through lack of understanding or comprehension, but that criticism is seemingly not leveled at support for other ballot initiatives.

Is representative democracy better than participatory democracy? Is the potential for financial influences greater in one than the other? Are Americans less prepared to make law than to elect those who will? Is it possible that money and advertising campaigns might influence election processes beyond the ballot initiative process? Is there an inherent superiority to one method over another? Or, are both simply differently flawed methods by which a self-governing people proceed in their own pursuit of happiness?

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‘More than a job’: the meal delivery co-ops making the gig economy fairer | Gig economy




Cristina González did a lot of waiting in 2018. Back then, the 29-year-old was a courier for the Spanish food delivery platform Glovo in her Basque home town, Vitoria-Gasteiz. She talks about feeling as if she was on standby the whole time: “You’re effectively having to be working constantly.”

While Glovo serves restaurants, customers can also order from supermarkets. This, Gonzalez says, was “a complete shitshow: supermarket orders are really easy to screw up”. If the supermarket did not have an item in stock and González completed the order, she might get a poor rating from the customer because of the missing item. If she turned down the order, González worried that it might affect her score on the platform. “It was very, very stressful.”

Gonzalez is still a courier but is making €10 (£8.70) an hour after tax and social security contributions, more than double her previous wage. She says customers of Eraman, the delivery cooperative she now rides for, are more understanding about minor issues, the jobs are more varied;she despatches as well as delivering, there is better communication, and she feels like she has more control.

Cristina Gonzelez at work for Eraman
Cristina Gonzelez at work for Eraman. Photograph: Paul Iano/Eraman

She could, she says, imagine staying in this version of the gig economy far longer than she might have at Glovo – five to 10 years, she says. “It’s a job, but it’s also more than that. In Eraman you are a link in a chain, a member of a team, in Glovo you are a pawn, the last position in a hierarchy.”

In Berlin, Mattia Carraro experienced a similar trajectory: the 33-year-old courier worked at Deliveroo for two years before joining Khora, a 30-person food delivery collective set up in March last year. Germany offers relatively decent conditions for food delivery couriers – those working for the big platforms are employees with social security generally paid by the hour rather than per delivery as is the case for most couriers in the UK.

While satisfied with the pay, Carraro was bothered by the deep insecurity of the job, “that from one day to the next it might go away”, as well as the anonymity. Deliveroo ceased operations in Germany in 2019 and when Khora came along he signed up. Although his role involves significantly more administration – a two-hour weekly general meeting where decisions are reached via consensus, plus approximately 15 hours of unpaid managerial duties a week – Carraro feels happier working as part of a cooperative.

“For me, it’s OK to earn less money but to work in an environment that always makes me feel good, where I know problems are going to be solved and we’re all friends. This is something we don’t want to do for just a season or until we find something better, but a job you really want to keep and you like.”

Mattia Carraro of the Khora collective taking a break at Hermannplatz, Berlin
Mattia Carraro of the Khora collective taking a break at Hermannplatz, Berlin. Photograph: Marvin Systermans

Carraro doesn’t just do bike deliveries: like other members of the cooperative, he handles some of Khora’s dispatching work. “I go for a nice walk with my dog and eat breakfast outside, then at noon I start work, while chain-smoking, eating yoghurt and popcorn as I dispatch. Then at 10pm my shift is over and I eat properly.”

At different ends of Europe, these cooperatives are worker-led and pride themselves on being democratically governed. Eraman’s co-founder, Paul Iano, 28, says the 10-person cooperative reaches decisions via discussion. “The thing I like to say about cooperatives is that if you’re having to vote on it, you’ve already got a problem.”

But neither venture could exist without the bike delivery software they rely on.

Enter CoopCycle, the brainchild of Alexandre Segura, a computer programmer from Marseille. Back in the spring of 2016, Segura found himself heading to the Place de la République in Paris almost every evening for Nuit debout, a French protest movement that has been compared to Occupy.

Segura helped build a website for the movement and spent much of his time talking about how the gig economy could be exploitative and harmful, and how more of it should be run by the users. “It planted seeds in my mind,” he says.

So, later that year, when his brother-in-law along with thousands of others lost his job as a courier for the Belgian food delivery startup Take Eat Easy, it prompted Segura to start a new venture in his spare time “as an intellectual exercise”.

He says he wanted to reverse-engineer the technology offered by Deliveroo, Uber and other big platforms to empower couriers. The result was a delivery app that offered software and support but required users to fulfil two conditions: they had to be worker-owned and all profits had to be distributed among the worker-owners.

“No CoopCycle, no party,” is how Carraro puts it, telling me that the cost of getting a bespoke delivery app designed would be prohibitively expensive for the average collective.

Recently, the world seems to have started thinking more like Segura does. Spain’s supreme court ruled in September that riders working for Glovo are not self-employed but salaried employees with the right to paid holidays and sick leave.

At least 40 legal challenges to employment conditions for riders and drivers have been raised against gig economy companies including Uber and Deliveroo.

Deliveroo’s shares plunged 26% in its much-anticipated London stock exchange debut in March, with many investors expressing concerns about the conditions faced by its self-employed riders.

This increased scrutiny came with rolling lockdowns that shut down much of the hospitality industry and sent meal delivery orders through the roof. The Amsterdam-based Just Eat Takeaway reported a 79% increase in orders for the first three months of 2021. And despite its disastrous stock market launch, Deliveroo is reporting a doubling of order volumes in the same period.

Segura’s colleague Adrien Claude says 90% of non-profit food delivery cooperatives have also reported a boost in business during lockdown.

The co-ops say their business model offers a better deal for restaurants as well as riders. Eraman, for example, charges restaurants between 10-20% of the value of the order, while Deliveroo takes 32%, Glovo’s average fee is 35% and Just Eat and Uber Eats’ commission is 36.20%. In Berlin, Khora offers a flexible system which gives restaurant-clients more autonomy than if they were to pay a set percentage.

But whether worker-led delivery co-ops can provide a real alternative to the delivery giants remains to be seen.

A Glovo food delivery courier in Madrid during the first wave of the pandemic
A Glovo food delivery courier in Madrid during the first wave of the pandemic last year. Photograph: Juan Medina/Reuters

Prof Vera Trappmann of the University of Leeds, one of the co-authors of Global labour unrest on platforms: the case of food delivery workers, thinks the cooperative model shows us the possibility of a different future – “of alternative ways of dividing up risks and earnings”. A radical change in working conditions for couriers ushered in by Coopcycle seems unlikely, she says. Yet, she believes this amalgamation of digital platforms with worker-led co-ops is here to stay.

“We know that young people especially don’t like working in the bureaucratic, exploitative environments offered by many companies and as such, often opt for self-employment. They’re more prone to questioning the value of working for corporations, and co-ops may become more and more of a home for such people.”

CoopCycle now has 67 co-ops across seven countries in its “federation” and has extended from Europe to Canada and Australia. It is on the cusp of deals with collectives in Argentina and Mexico for the first time, though there is a debate in process over whether motorcycles would be a breach of the federation’s environment-friendly values.

Claude sounds both fired up about the future and gently exhausted. “We’re trying to change the world – it’s tough because we’re human and nothing’s perfect. It probably never will be perfect but we’re trying to make things better by the day.”

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The Big Gig: FinTech Australia’s new board member




Former senior advisor to the Turnbull and Morrison governments Harry Godber has been added to the board of FinTech Australia as an independent director.

Mr Godber acted as an advisor to Minister for Superannuation, Financial Services and the Digital Economy Jane Hume, where he led initiatives in fintech and financial regulation. He also worked on Australia’s Consumer Data Right, superannuation reform and the introduction of new payment regulation.

Mr Godber was an Industry, Innovation and Science Adviser to Ministers Arthur Sinodinos and Michaelia Cash, and, in a separate role led product and strategy at the CSIRO’s Data61.

“With the right policy and regulatory settings in place, fintech is poised to lead Australian consumers and business through our economic recovery,” Mr Godber said.

Mr Godber currently works as head of strategy for Flare, a fintech focused on HR, banking and superannuation.

Harry Godber, a former senior advisor to the Turnbull and Morrison governments has been added to the board of FinTech Australia. Image: Twitter.

Deloitte has promoted Rob Hillard to be its Asia Pacific consulting leader, where he will oversee around $2 billion worth of consulting work in the region.

Mr Hillard has worked as the consulting giant’s chief transformation officer for the past year and was previously Deloitte’s chief strategy and innovation officer. After being made a managing partner in 2015, Mr Hillard oversaw the doubling of Deloitte professionals to over 3,000 by 2018.

Mr Hillard is a member of the Deloitte global board and the Chairman of the Australian Information Industry Association.

Australian Competition and Consumer Commission (ACCC) Commissioner Sarah Court is leaving the watchdog after more than a decade to join the Australian Securities and Investment Commission (ASIC). Ms Court joins ASIC after wide involvement in the ACCC’s work, including chairing the its enforcement, compliance, Consumer Data Right and legal committees and as a member of the merger review and competition exemptions committees.

“This is a well-deserved reflection of the experience, expertise, and wisdom Sarah brings to the table,” ACCC Chair Rod Sims said “ASIC’s gain is very much our loss.”

The new Australian Public Service Academy will be led by Grant Lovelock, who has been responsible for skills funding and apprenticeship policy at the Commonwealth Department of Education and Training. Most recently Mr Lovelock has worked at the Department’s National Careers Institute.

The University of Sydney’s United States Studies Centre (USSC) has added three more non-resident experts: former chief of staff to President Trump Mick Mulvaney, former Director General of ASIO Duncan Lewis and Sir Roland Wilson Scholar at the Australian National University’s National Security College Jennifer Jackett.

Mr Mulvaney and Mr Lewis join as non-resident senior fellows while Ms Jackett joins the University’s Foreign Policy and Defence Program as a non-resident fellow.

DXC Technologies lost associate partner Pewter Klement, who joined Avande this month. Mr Klement leaves DXC after three and a half years for the Microsoft focused Avande.

Alan Cameron has stepped down from the board of PEXA, the online property exchange network he helped establish in 2010, to fulfil a COAG initiative to deliver a single, national e-conveyancing solution to the Australian property industry.

Mr Cameron will be replaced by finance industry veteran Mark Joiner as independent non-executive Chairman.

Construction software firm Asite has announced the appointment of Kyle Hamer as chief marketing officer. Mr Hamer will lead the global marketing and communications team from the company’s Houston office.

AUmake, the ASX-listed company that connects Asian influencers with Australian brands has a new chief financial officer, with Tony Guarna joining this month. Mr Guarna has held finance chief roles at several ASX companies and joins AUmake as its user base hits more than 27,000 after launching in October last year.

Global semiconductor technology and equipment firm Revasum appointed Rebecca Shooter-Dodd as chief financial and operating officer, formalising her operating responsibilities in addition to her current role as Revasum’s chief financial officer and company secretary.

Former Gartner director Rhys Binney has been announced as Axe Group’s senior vice-president of growth strategy. Mr Binney joins the insurance software provider after three years as a director at Gartner for their CIO and CEO advisory groups.

UK fintech Marqeta has named Duncan Currie as country manager for Australia and New Zealand as part of its plans to establish an Asia Pacific Headquarters in Melbourne. Mr Currie is an industry veteran with almost two decades of payments experience, serving as a consultant and advisor to local fintechs, alongside stints at ANZ, Visa and Tuxedo Money.

Do you know more? Contact James Riley via Email or Signal.

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Free the Gig Economy! | City Journal




Last week, the Biden administration made another effort to drag the U.S. labor market back into the past. The Department of Labor withdrew the independent-contractor rule, a Trump-era regulation that made it easier for firms to classify workers as contractors instead of employees. It’s not yet clear what will replace it, though President Biden says he supports the ABC test that California tried to implement, which would classify most contractors as employees—including not just drivers for Uber and Lyft but even freelance writers.

The Labor Department and the media are framing the administration’s move as a way to ensure that workers in the gig economy are protected and paid overtime and minimum wage. Yet many workers prefer the flexibility of contract work, which lets them set their own hours and work for other companies. According to a Fed survey, most gig workers report high levels of satisfaction with the arrangement. When California tried to classify gig workers as employees, the state faced pushback not just from companies but from gig workers themselves.

They have good reasons to prefer it. The nature of work is changing, as it has throughout history. It once was considered dehumanizing that most workers should be beholden to a single employer. Today, we’re forcing this arrangement on people who don’t want it.

The rollback of the Trump rule joins a list of policies—efforts to increase unionization, low-skill manufacturing, and “shovel-ready” infrastructure jobs—by which the Biden administration is attempting to shoehorn the modern labor market into a 1950s mold. The problem with these policies is that the labor market has changed. When work was more uniform, workers were easier to replace, so forming strong ties to one’s employer made sense for job security. Unionization also made sense because it allowed the large numbers of lower-skilled workers to pool together for similar pay and benefits.

Over time, however, manufacturing, construction, and most other jobs have become more technical, requiring skilled workforces. The more skilled the workers, the less incentive they have to attach themselves to individual jobs or to pool risk with fellow workers. The more skills you have, the less unionization makes sense because you’re effectively subsidizing lower-skilled workers. And workers today also place a higher premium on flexibility. This may explain why the unionization drive at Amazon has not succeeded.

As we emerge from the pandemic, we should expect the value placed on flexibility in work arrangements to increase. The expanded availability of remote work, combined with the continuing unpredictability of school re-openings and child-care arrangements, make benefits like the ability to set your own hours and the freedom to work for multiple employers more important than ever.

Some Biden policies, like making it easier to buy health insurance without an employer, move in the right direction. The administration would do well to pursue more measures like these that embrace the new economy, rather than trying to force workers into structures better suited for the economy of more than a half-century ago.

Photo by Drew Angerer/Getty Images

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