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More rights for workers in the gig economy? – Employment and HR

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The classification of workers in the gig economy
continues to be debated following a Fair Work Commission
(“the Commission“) decision which found a Deliveroo delivery
rider was an employee, and had been unfairly dismissed. The
decision serves as a further data point as Australian Courts and
Tribunals are increasingly called upon to examine the true
character of working relationships within the gig economy, and the
rights and obligation of the participants within those
relationships.

Background

A Deliveroo worker was dismissed in April 2020 after working for
three years as a rider. Shortly before his dismissal, the worker
received an email from the company indicating that his
“supplier agreement” would be terminated within a week
because of alleged slow delivery times. The worker alleged he was
an employee, and that he had not been given an opportunity to
respond to the allegations or improve his conduct before his
agreement with Deliveroo was terminated.

In response to the worker’s unfair dismissal application,
Deliveroo filed a jurisdictional objection, asserting the worker
was an independent contractor and therefore not protected from
unfair dismissal. The worker was represented by the Transport
Workers Union (“TWU“)

Worker’s status

When examining the relationship between the worker and
Deliveroo, the Commission noted that the terminology used in the
written agreement between the parties went to great lengths to
document a principal and independent contractor relationship.
Despite this, the agreement was referred to by the TWU as a
contract “of adhesion where the dominant party.determined
the terms unilaterally”
. The TWU submitted that the
worker had no capacity in any real sense, to negotiate any of the
terms of the agreement.

The Commission ultimately did not accept Deliveroo’s
argument that the worker was an independent contractor, observing
Deliveroo’s capacity to monitor riders, analyse their
performance, and then take action including the termination of
their contracts, represented a capacity in practical terms, for
Deliveroo to exercise a level of control that was reflective of the
existence of an employment relationship
“. The Commission
found that a holistic view of the arrangement between Deliveroo and
the worker showed he was an employee, including given the worker
booked his shifts through a company system, did not have a distinct
trade or profession, and dressed in clothing with Deliveroo
branding.

Importantly, the Commission’s analysis of the relationship
looked behind the terms of the agreement and examined the substance
of the relationship. Relevantly, the Commission observed
.although it appeared that [the worker] had the freedom
to choose when and where to work, the practical reality was that
the SSB system directed him to undertake work at particular times,
and to regularly make himself available for work, and to not cancel
booker engagements. Although Deliveroo did not require a rider to
work for any particular length of time, or to even accept a
delivery order once they had logged into a booked session, the
economic reality of the situation would ordinarily compel a rider
to undertake delivery work. After all, the objective of the entire
process is to get paid.

In an observation having potential ramifications for most gig
economy companies the Commission also formed the view that the data
collected by Deliveroo placed it in a position where it could
ultimately control the worker. Specifically, the Commission
observed “Work that is undertaken via computerised
platform based engagements provides the operators of those digital
platforms, such as companies like Deliveroo, with an
extraordinarily vast repository of data relating to the performance
and activities of those individuals who perform the work. It takes
little imagination to envisage that the data or metrics in the
possession of a company such as Deliveroo, can be used as a means
to control those who perform the work. As was the case in this
instance, the control can be switched on and off as the business
needs and circumstances might have Deliveroo
determine.

Unfair dismissal

Having found the worker to be an employee, the Commission went
on to determine that he had been unfairly dismissed. The Commission
found Deliveroo had not clearly communicated a standard for
delivery times, and therefore there was not a valid reason for the
worker’s dismissal. The Commission found an absence of
procedural fairness, specifically the worker was not given an
opportunity to respond to, and be warned of, the allegations of
unsatisfactory performance nor appropriate notice of the reason for
the termination of his employment. The dismissal was harsh, unjust,
and unreasonable given the circumstances.

What does this mean going forward?

Gig economy companies, including those that operate in food
delivery and ride-share capacities appear to be actively seeking to
address these types of decision in their hiring practices and terms
of engagement. In response to the decision, Deliveroo has said it
is confident that riders are engaged as independent contractors and
enjoy the freedom that comes with self-employment (including
deciding when to work and their ability to use multiple delivery
platforms to generate work), and will appeal the decision to
protect those freedoms. If the appeal fails, it may face the
prospect of a wave of claims regarding minimum employee
entitlements if its “independent contractors” are found
to hold the worker status of employees.

Other gig economy companies have faced similar cases over the
status of individuals that work for their companies, with Foodora
leaving the Australian market in 2018 following a decision that a
delivery rider was an employee and Uber Eats overhauling its
contractual arrangements following a damaging court hearing in
2020. Menulog is trialing hiring employees under an award (the
Miscellaneous Award) that pays casuals at set rates, including
penalty rates on Sundays, which may lead to other gig economy
companies doing the same.

This decision further places a spotlight on a central pillar of
the argument by digital labour platforms that their workers are
self-employed, enforced by the “freedom in
decision-making” for workers to choose where, when, and how
long they worked for at any given time. For the Commission, it
appears this proclaimed flexibility and autonomy could not be
construed to prevent the existence of an employment relationship,
especially in the context of modern and rapidly changing
workplaces.

Key takeaways

The classification of workers in the gig economy remains an open
question and is likely to be the focus of ongoing examination by
Courts and Tribunals. As quoted by the Commission in its decision,
a further reality for many observers is that the
accumulation of case law has added weight rather that
wisdom
“.

Against this background, the challenge for employers in the gig
economy will be to continuously examine the substance of their
day-to-day relationship with their workers, and to understand that
Courts and Tribunals will continue to look behind the language and
structure of their contractual arrangements. The Commission’s
decision also appears to put gig economy companies on notice that
the operation of their digital platforms, presumably including the
way their algorithms assign work, will be placed under scrutiny
when testing issues of control.

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It’s not just pipelines; everyday gig workers are getting phished too

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Not long ago, “getting Phished” meant waking up in a festival field wearing nothing but cargo shorts — 23 hours into a 3-day jam session, smelling like patchouli oil.

Now, the hackers are ruining it for us all.

Recently, high-profile cyberattacks of pipelines, meat factories, and ferry operations have cast new light on the existential risk of a digital society.

But it’s not just large organizations feeling the hack heat

A recent Protocol article details the rise of phishing attacks among DoorDash gig workers (AKA Dashers).

Here’s how these DoorDash attacks work:

  1. A DoorDash worker receives an order needing fulfillment
  2. The worker receives a call from someone pretending to be a DoorDash support representative, saying the order has been canceled
  3. The worker is unable to remove the order from their app (because it has not been legitimately canceled)
  4. The scammer offers to send the worker a link to clear their app
  5. The link prompts the worker to provide their username and password

The hackers then access and drain the Dasher’s account

Although Protocol was unable to confirm the number of scammed DoorDash workers, Reddit threads indicate a growing number of gig worker victims (Postmates couriers have been hit, too).

DoorDash suggests these are one-off problems. But gig workers are particularly vulnerable to phishing scams because of their relationship with their work. Often, they have no boss or co-workers to consult with and the money is just dropped into their account.

They simply follow the prompts of an app…

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Celtics assistant Jerome Allen reportedly interviews for Boston gig, expected to interview for Portland job

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Celtics

Allen’s been with the Celtics since 2015.

Jerome Allen seems to be drawing interest for multiple head coaching vacancies. (Photo by Jamie Sabau/Getty Images)

The Celtics might have some competition in finding their next head coach.

Celtics assistant coach Jerome Allen has interviewed for the job to replace Brad Stevens and is expected to interview with the Trail Blazers for their head coaching spot, The Boston Globe’s Gary Washburn reported Saturday.

Allen, who played professionally for 14 years in the NBA and overseas, joined the Celtics as an assistant coach in 2015. Allen has “been a positive influence, forging close relationships with the players” during his time in Boston, according to Washburn.

Prior to joining the Celtics, Allen was the head coach of the University of Pennsylvania’s men’s basketball team for six seasons. In 2020, Allen received a 15-year show-cause penalty from the NCAA due to accepting bribes to help a student get on the recruiting list in order to get accepted into Penn during his time as head coach.

Celtics assistant coach Jay Larranaga is expected to interview for the job while assistant coach Scott Morrison will interview for the job, HoopsHype’s Michael Scotto reported. Larranaga’s been a Celtics assistant since 2012 while Morrison’s been a Celtics assistant since 2017. Morrison was the head coach of the Maine Red Claws for three years prior to coaching the Celtics, winning the D-League Coach of the Year Award in 2015.

Not long after Stevens stepped down as Celtics head coach to become their president of basketball operations, it was reported that the Celtics would interview internal candidates before looking at external candidates for the job.

The Trail Blazers became the second team to have a head coach opening after they agreed to part ways with Terry Stotts on Friday. Blazers star point guard Damian Lillard already publically vouched for his team to hire either Lakers assistant coach Jason Kidd or Clippers assistant coach Chauncey Billups to be the team’s next head coach. Both Kidd and Billups have been rumored candidates for the Celtics job.

In addition to internal candidates plus Kidd and Billups, Duke women’s basketball head coach (and ex-Celtics assistant coach) Kara Lawson, 76ers assistant coach Sam Cassell, and Nets assistant coach Ime Udoka are just a few of the names that have been rumored to replace Stevens.

The Magic entered the head coach search Saturday when they agreed to part ways with Steve Clifford. The now ex-Magic coach has prior ties with Kemba Walker. Clifford was Walker’s head coach for five seasons in Charlotte.



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Bay Area Reporter :: News Briefs: Kendell lands new gig

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Kate Kendell, the former longtime executive director of the San Francisco-based National Center for Lesbian Rights, is now the first chief of staff for the California Endowment.

Kendell began the new position June 1, after having served for nine years on the endowment’s board of directors, a news release stated.

“The endowment is excited to have Kate Kendell continue to serve our foundation, now as chief of staff,” stated Dr. Robert K. Ross, CEO and president of the endowment. “Kate’s career is steeped in racial justice, LGBTQ advocacy, and civil rights. She will be a strong leader for our work in the next decade.”

According to the release, Kendell’s hiring comes after recent retirements of executive team members and a major transition of staff. Kendell will assist and support the executive team, and will play a key role in the development and implementation for the endowment’s future work, helping to deepen the racial equity efforts of the organization. She will also support grant making from the CEO’s office, and ensure the prioritization of critical issues and required information for the CEO to help facilitate efficiency and provide timely decision-making.

Kendell stepped down from NCLR at the end of 2018. Most recently, she served as interim chief legal officer at the Southern Poverty Law Center.

Kendell said she’s enthusiastic about the new job.

“After serving on the board of the California Endowment, I am especially excited to join the staff of an organization committed to health and social and racial justice,” she stated in an email. “For 25 years the endowment has empowered and partnered with youth and residents to create vibrant communities where all can thrive, including LGBTQ residents. I look forward to helping the passionate and talented team at the endowment deepen and grow that work for all Californians.”

The California Endowment has a budget of about $3.5 million, according to the audited financials on its website. It works to provide grants to develop social justice and health equity for all Californians. Learn more at https://www.calendow.org/

Glide announces Pride festivities
Glide Memorial Church and the Glide Pride Team have announced various activities to recognize LGBTQ Pride Month in June. There will be tributes, special offerings, and Pride-inspired Sunday celebrations.

Led by Marvin K. White, Glide’s minister of celebration, the church is dedicated to unconditional love, radically inclusive faith, and social justice.

“Glide Memorial Church has a long history of LGBTQ+ inclusion,” White stated in a news release. “Our congregation has been a spiritual home for the LGBTQ+ community from the beginning. … We celebrate Pride because we know that the LGBTQ+ stories that make up our beloved community will endure.”

There are drag and spirituality shows on Friday, June 11, featuring Afrika America; Monday, June 14, with Lotus Boy; and Monday, June 21, with Honey Mahogany. All start at 7 p.m.

“Black Trans Lives: Breaking the Silence” will be held Tuesday, June 22, at 6 p.m. There will be a virtual watch party for the classic drag ballroom film “Paris is Burning” Friday, June 25, at 6 p.m. On Sunday, June 27, at 2 p.m. there will be a virtual Pride party on Twitch with DJ David Harness.

For more information and to register for the events, go to https://www.glide.org/

LGBTQ first-time homebuyer seminar
The LGBTQ+ Real Estate Alliance will hold a virtual national first-time homebuyer seminar for queer people Wednesday, June 16, from 4 to 5 p.m. Pacific Time. Organizers said they believed this is the first such program ever offered specifically for the LGBTQ+ community.

This is also the first public program offered by the alliance, a 501(c)6 nonprofit with more than 1,200 members that launched last October. According to a news release, it will feature a variety of important topics for potential homeowners, including discussions about down payments, mortgage types, pre-approval, and the lending process. The program will offer insight into selecting an agent, home, and neighborhood while offering perspectives on the offer, negotiations, and the different steps to closing. The alliance will also provide resources to help combat potential housing discrimination against sexual orientation and gender identity.

“Today’s market conditions have heightened the challenges facing first-time homebuyers and we believe it is important to provide members of our community with the tools and resources they need to navigate the buying process,” stated Ryan Weyandt, CEO of the alliance. “Along with discrimination, and fear of it, we have found a lack of education focused on the LGBTQ+ community that would allow more to better prepare for the process.”

Weyandt pointed out that the LGBTQ+ homeownership rate is just 49.6%, according to the Williams Institute, an LGBTQ think tank at UCLA School of Law. This is far below the national mark of 65.6% cited by the U.S. Census Bureau.

One of the featured speakers will be Josh Pringle from Better Homes and Gardens Real Estate Leaskou Partners in Palm Springs. Other speakers include Kassandra Alicea, the alliance’s San Antonio, Texas chapter president and an agent with Coldwell Banker’s D’Ann Harper Realtors, and Ron Waterson, a loan officer with PrimeLending in Dallas.

There is no cost to attend. To register, go to https://realestatealliance.org/event/first-time-home-buyers-course/

According to a new report from the National Association of Realtors that was released June 9, LGBTQ buyers purchased older and smaller homes more than non-LGBTQ buyers, and expect to live in their new homes five years less than non-LGBTQ buyers.

CA Hispanic chamber launches LGBTQ business initiatives
The California Hispanic Chambers of Commerce has announced its LGBTQ+ Business Initiative launch. The initiative will promote an inclusive ecosystem at the CHCC through regional collaboration, maximizing resources, and leadership development, according to a news release.

The CHCC has committed to building bridges between its regional Hispanic chambers, affiliates, and the regional LGBTQ+ chambers or business associations in launching the initiative.

“LGBTQ+ rights this decade has seen a range of positive changes. Companies have come a long way putting in place policies that promote and protect diversity,” stated Julian Canete, president and CEO of CHCC. “But there’s still more that can be done, in particular a formal collaboration between the CHCC and the LGBTQ+ business community.”

The CHCC will work on cultivating certified LGBTQ+ diverse suppliers, connecting them to opportunities. It will also assist its corporate partners in diversifying their supply chains, and advocate on behalf of LGBTQ+ and allied business communities.

Help keep the Bay Area Reporter going in these tough times. To support local, independent, LGBTQ journalism, consider becoming a BAR member.



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