We recently authored “Elections May Decide Fate of Gig Worker Classification Regs,” the first of a series of articles on wage and hour issues for Law360.  Subscribers can access the full version here - following is an excerpt:

As the gig economy has grown, so too have questions about it. One of the most consequential questions in the past several years has been whether workers in the gig economy are properly classified as independent contractors for purposes of various federal and state statutes, or whether they should be classified as employees of the businesses with which they have relationships.

The answer to that question has tremendous implications for both the companies and the workers. Various standards have emerged to address this question. The standards are by no means consistent, nor are they as clear as one might hope.

The same gig economy worker could be properly classified as an independent contractor under federal law, yet found to be misclassified as an independent contractor under state law. Indeed, the worker's status could vary across different federal statutes, or under different laws in a single state.

In 2019, California enacted a statute known as A.B. 5, adopting a demanding ABC test for workers to qualify as independent contractors. And it is no secret that the legislators who drafted A.B. 5 were taking aim at gig economy companies and ride-share and food-delivery operators in particular.

At the same time, the U.S. Department of Labor has taken a very different approach, issuing guidance in 2019 indicating that many of these workers are, in fact, bona fide independent contractors under federal law. Just days ago, the DOL issued a proposed rule that takes a comparatively expansive view of who can be an independent contractor.

In the upcoming elections, both of these approaches to classifying gig economy workers will effectively be on the ballot. A victory by Democratic presidential nominee Joe Biden points toward a regulatory and enforcement view starkly at odds with the DOL's current approach. In fact, Biden has publicly declared his support for adopting the California standard as the law of the land for purposes of a broad range of labor, employment and tax statutes.

And in California, Proposition 22, a voter initiative that would overturn the California statute as applied to some app-based drivers, has qualified to appear on the November ballot.

The outcome of the November elections both at the federal level and in California will likely determine whether the gig economy as we have come to know it continues to operate in a nonemployee model.

Back to Wage and Hour Defense Blog Blog

Search This Blog

Blog Editors

Authors

Related Services

Topics

Archives

Jump to Page

Subscribe

Sign up to receive an email notification when new Wage and Hour Defense Blog posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.