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<div dir="ltr" data-setdir="false">For the benefit of others who may have tuned into the middle of this thread, #22 is strictly about app-based drivers.</div><div dir="ltr" data-setdir="false">AB5 and related activities had significant effect on many other lines of work. The outcome of #22 will not directly change any of that, but it might alter the discussion.<br></div><div dir="ltr" data-setdir="false"><br></div><div dir="ltr" data-setdir="false">I had not seen the 7/8 extra super majority clause. That is enough to raise the hair on the back of my neck.</div><div dir="ltr" data-setdir="false"><br></div><div dir="ltr" data-setdir="false">Also, life is very different if your hourly rate is $75 instead of minimum wage.</div><div dir="ltr" data-setdir="false"><br></div><div dir="ltr" data-setdir="false">In this example, I am making up numbers which I hope might be about right.</div><div dir="ltr" data-setdir="false">Someone grosses $15/hour for driving.</div><div dir="ltr" data-setdir="false">In an hour, they might drive 30 miles. Standard deduction rate for business is $.58 per mile or $17.40. </div><div dir="ltr" data-setdir="false">Well the $.58 figure is a estimate of what it actually costs for gas, repairs, depreciation. Such a driver might think they earned $15 after taxes, but it cost them more than that to operate the car.</div><div dir="ltr" data-setdir="false"><br></div><div dir="ltr" data-setdir="false">Now if the driver grosses $30 for the hour, he winds up with about $13 in his pocket after taxes and is happy that his spouse has a job with medical insurance.</div><div><br></div><div dir="ltr" data-setdir="false">I'm glad I'm not trying to support myself with ride-share.</div><div dir="ltr" data-setdir="false"><br></div><div dir="ltr" data-setdir="false">Now, I need to work on the rest of the ballot if I want to get it in before Friday.</div><div dir="ltr" data-setdir="false"><br></div><div dir="ltr" data-setdir="false">BTW, some of the mailers for local offices are bogus. A big shinny card with bold COPS and pictures of badges. The names on that are the people who paid to have their name on the mailing. Absolutely no opinion by law enforcement or anyone else other than a fee was paid to the printer. <br></div><div><br></div>
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On Monday, October 26, 2020, 05:47:05 PM PDT, Rick Moen <rick@linuxmafia.com> wrote:
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<div>Quoting Paul Zander (<a shape="rect" href="mailto:paulz@ieee.org" rel="nofollow" target="_blank">paulz@ieee.org</a>):<br clear="none"><br clear="none">> On his /election-2020-11-03 page Rick wrote:<br clear="none">> Also as always, this page includes separate "RM partisan analysis"<br clear="none">> sections for each issue/candidate, just in case you're curious what I<br clear="none">> personally think. No, I'm not lobbying to persuade, in part because<br clear="none">> that doesn't work.<br clear="none"> <br clear="none">> One thing I like about CABAL is that we can disagree without being<br clear="none">> disagreeable. Here is why I am inclined to vote in favor of #22<br clear="none">> regarding Uber drivers.<br clear="none"><br clear="none">Hey, thanks.<br clear="none"><br clear="none">I keep trying to tell people that the page is in no way intended to<br clear="none">arm-wrestle anyone. It's literally an explicit effort to leverage the <br clear="none">existence of the Web to give people access to a _lot_ of informed<br clear="none">opinion on the votable issues, so they can make up their own minds.<br clear="none"><br clear="none">In fact, several people over the years asked me to include or link a <br clear="none">one-page PDF of just the 'To vote like Rick, vote this way' bits for<br clear="none">quick-reference, and I was non-plussed. Like, why? Because I'm some<br clear="none">kind of oracle? That sheet would be contrary to my fundamental aims.<br clear="none"><br clear="none">Anyway...<br clear="none"><br clear="none">[snip most of your text for brevity your recounting of some of the<br clear="none">gig-economy classification history]<br clear="none"><br clear="none"><br clear="none">Skip forward to the subheader The Linneus Bottomus, if you want to get<br clear="none">to the short version.<br clear="none"><br clear="none"><br clear="none">I have to mention an awkward bit, here. When I write that the analysis<br clear="none">page is completed prior to an impending election, that's wild optimism, <br clear="none">and often one of the bits I end up reconsidering first after it's<br clear="none">'completed' is my positions on state propositions. Why? Because the<br clear="none">work of assembling all of the information on the analysis pages is so<br clear="none">time-consuming that the 'completed' page often starts out with what is<br clear="none">barely better than my gut reaction, plus my faith in Pete Stahl's <br clear="none">excellent analyses at his site peterates.com .<br clear="none"><br clear="none">As it happens, I was woken up by one of our cats about 3am, picked up<br clear="none">the laptop computer for a while, and started reading some (more) of my<br clear="none">page's links about Prop. 22, particularly the newspapers that endorsed<br clear="none">'yes' (contrary to my announced 'Screw them sideways. They're shameless<br clear="none">scofflaws, and need to obey the law.' reaction -- like SF Chronicle's, <br clear="none">and The Press Democrat's (Santa Rosa).<br clear="none"><br clear="none">I can only say: It's not clear-cut.<br clear="none"><br clear="none">I have experience as both a genuine independent (WAN/LAN) contractor and<br clear="none">as a faux contrator. Also, as a former tax accountant, I have known for<br clear="none">decades the court's and IRS's criteria for what is an employer-like<br clear="none">relationship and what is a contractor-like relationship.<br clear="none"><br clear="none">When I was a WAN/LAN contractor, it was very, very clear that my<br clear="none">contractor status was completely kosher: I supplied and maintained all<br clear="none">my own tools, I had an independent business with its own separate<br clear="none">reputation, I negotiated terms and fees on an equal basis (e.g.,<br clear="none">$85/hr., 2 hour minimum, and sure, go ahead and get a PFY to do a crummy<br clear="none">job for less if you are good with that), and more factors like that. <br clear="none"><br clear="none">On a different occasion, after a crummy boss at VA Linux Systems / VA<br clear="none">Software Corporation who had it in for me got me tossed out the door<br clear="none">into the Dot-bomb recession (trying to hide that I'd got glowing written<br clear="none">commendations from each of the SourceForge Enterprise Edition customers<br clear="none">whose installations I'd helped repair), I got picked up for a survival<br clear="none">job at small Fremont firm California Digital Corporation (CDC), the company<br clear="none">that bought out VA Linux Systems's remaining hardware inventory and<br clear="none">proved that CEO Larry Augustin was wrong when he decided VA could no<br clear="none">longer compete in hardware and converted the firm into a proprietary<br clear="none">software company.<br clear="none"><br clear="none">I got my revenge against the crappy boss. I mentioned in notes to Larry<br clear="none">Augustin, who'd been dismayed and distressed at my dismissal but hadn't<br clear="none">intervened, that every one of my three preceding bosses at VA had<br clear="none">reviewed me highly, just this one idiot disagreed, and that I strongly<br clear="none">suggested he check my file at Steve Barranti's HR department and would<br clear="none">find something surprising.<br clear="none"><br clear="none">Knowing that my boss was setting me up for dismissal, I had e-mailed my<br clear="none">boss and her boss _each_ time a letter arrived from a SourceForge<br clear="none">Enterprise Edition customer commending the job I'd done, asking if they<br clear="none">would please add it to my HR file in Steve Barranti's office. Each<br clear="none">time, they e-mailed back that they would. Each time, I waited a week, <br clear="none">then visited Steve Barranti's office, said 'Hi, did Amy Abascal Turner<br clear="none">or DeWayne Kuhn bring a copy of this [holding out a printout of the<br clear="none">commendation letter] to my employee file?' 'Um, no.' 'Huh, that's<br clear="none">interesting. Here is copy from my file, plus printouts of Amy and<br clear="none">DeWayne's e-mails notes saying they'd add it to my file, plus a<br clear="none">contemporaneous note today from me saying this didn't happen and your<br clear="none">acknowledging that they didn't. The second, third, and fourth times<br clear="none">this happened, Steve looked quite pained, but obviously was not able to<br clear="none">intervene.<br clear="none"><br clear="none">Anyway, after my heads-up to Larry Augustin, I heard to my pleasure that<br clear="none">boss-from-hell Amy had just been catapulted out the door, and I hope <br clear="none">she heard that it was on account of the paper trail I'd left.<br clear="none"><br clear="none">But meantime, I was hungry, so I took the job at CDC. I learned a lot,<br clear="none">got my name into the credits for another open-source software project<br clear="none">(OpenIPMI), and helped design and build the #2 HPC computing cluster <br clear="none">in the entire world, 'Thunder', built with 4096 Itanium2 CPUs for LLNL.<br clear="none"><br clear="none">What I did not get was health benefits. Or Social Security. Or<br clear="none">unemployment insurance coverage. Or Medicare disability insurance. <br clear="none">Or wage/hours/etc. regulatory protection. Or vacation/sick leave. <br clear="none">Or a pension plan. Or collective bargaining. Or protection from<br clear="none">discrimination and retaliation. Why? Because corporate co-owners BJ<br clear="none">Arun and his wife were cheap bastiches and disobeyed the law. I was<br clear="none">doing what was absolutely by all legal criteria a real employment job,<br clear="none">but had no benefits because that was the 'take it or leave it' offer --<br clear="none">and I took it. I probably would again under similar circumstances, but<br clear="none">the point is, this was a terrible solution, and CDC was cheating me, the<br clear="none">state of California, and the Federal Government.<br clear="none"><br clear="none">I could have informed on them during my years there, and the Aruns would<br clear="none">have been assessed for back taxes, penalties, and fines -- and I<br clear="none">probably would have lost my so-called job. I could have informed on<br clear="none">them on the way out the door to take a better and more-real job at<br clear="none">Cadence Design Systems, but I didn't -- partly because I had willingly<br clear="none">accepted the cruddy terms, and so felt it would be a bit nasty to kick<br clear="none">them on the way out.<br clear="none"><br clear="none">At the time, and possibly still, the 'no benefits' scam was common in<br clear="none">Silicon Valley. On the one hand, you can say these were jobs that<br clear="none">otherwise might not exist. On the other, it's nonetheless exploitative,<br clear="none">and unhealthy for everyone.<br clear="none"><br clear="none"><br clear="none">Let's roll forward to the gig-economy companies and Prop. 22. <br clear="none"><br clear="none">The Press Democrat and SF Chronicle pieces claim the 3-prong test for<br clear="none">independent contractor is too-rigid/inflexible and not like 'by any<br clear="none">reasonable definition not laid out by the court or politicians'. Well,<br clear="none">gosh, guys, I don't know. Here's the three criteria (all of which must<br clear="none">be met for the 'independent contractor' claim to be valid) from the CA<br clear="none">Supreme Court Dynamex courier and delivery service case (April 2018)<br clear="none">that the Legislature then hammered into state law via AB50:<br clear="none"><br clear="none"> 1. The worker is free from the "control and direction" of the <br clear="none"> hiring entity.<br clear="none"> 2. The worker performs duties that are "outside the usual course"<br clear="none"> of the hiring entity's business.<br clear="none"> 3. The worker is engaged in an "independently established" trade,<br clear="none"> occupation, or business.<br clear="none"><br clear="none">You know, I'm just an ignorant former staff accountant and tax preparer<br clear="none">who used to work on this sort of issue for a living, and someone who's<br clear="none">been, in subsequent IT work, both lawfully and illegally an 'independent<br clear="none">contractor', but that sounds very, very like established US Supreme<br clear="none">Court and IRS criteria. Let's double-check my memory.<br clear="none"><a shape="rect" href="https://en.wikipedia.org/wiki/Independent_contracting_in_the_United_States" rel="nofollow" target="_blank">https://en.wikipedia.org/wiki/Independent_contracting_in_the_United_States</a><br clear="none"><br clear="none"> The United States Supreme Court has offered the following guidelines<br clear="none"> to distinguish employees from independent contractors:<br clear="none"><br clear="none"> 1. The extent to which services are integral to the employer's business.<br clear="none"> Greater integration favors an employee-employer relationship.<br clear="none"> 2. The permanence of the relationship. More established relationships favor<br clear="none"> employee status.<br clear="none"> 3. The amount of investment in equipment. When a worker makes a significant<br clear="none"> investment in the equipment they use in working for someone else, this<br clear="none"> suggests an independent contractor relationship.<br clear="none"> 4. The degree of control by the principal. More control favors<br clear="none"> employee-employer status.<br clear="none"> 5. The amount of financial risk. More opportunity for profit or loss favors<br clear="none"> an independent contractor relationship.<br clear="none"> 6. The amount of initiative, judgment or foresight in open-market<br clear="none"> competition with others required for the success of the claimed<br clear="none"> independent enterprise. Entrepreneurial and distinctive work favors an<br clear="none"> independent contractor relationship<br clear="none"><br clear="none"> The IRS, for federal income tax, applies a "right to control test"<br clear="none"> which considers the nature of the working relationship. They<br clear="none"> highlight three general aspects of the employment arrangement:<br clear="none"><br clear="none"> 1. financial control<br clear="none"> 2. behavioral control<br clear="none"> 3. relationship between the parties<br clear="none"><br clear="none"> In general, their criteria parallel those of the Supreme Court in<br clear="none"> sentiment. [...]<br clear="none"><br clear="none">(Note that those three correspond very closely to the Dynamex decision's<br clear="none">three.)<br clear="none"><br clear="none"><br clear="none">So, I'm not sure I buy the editorial writers' view that the three<br clear="none">criteria (dubbed the 'ABC test') are too-rigid and/or unrealistic.<br clear="none">They look like a minor variant on decades-old established Federal<br clear="none">regulatory law.<br clear="none"><br clear="none">During my time as a staff accountant at CPA firms, we talked about the<br clear="none">IRS 'twenty factor test'. I see Wikipedia mentions it at <br clear="none"><a shape="rect" href="https://en.wikipedia.org/wiki/Misclassification_of_employees_as_independent_contractors" rel="nofollow" target="_blank">https://en.wikipedia.org/wiki/Misclassification_of_employees_as_independent_contractors</a><br clear="none">and links to<br clear="none"><a shape="rect" href="https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee" rel="nofollow" target="_blank">https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee</a><br clear="none">and <br clear="none"><a shape="rect" href="https://www.irs.gov/pub/irs-pdf/p15a.pdf" rel="nofollow" target="_blank">https://www.irs.gov/pub/irs-pdf/p15a.pdf</a><br clear="none"><br clear="none">They're listed outright here, at the Web site of a California tax lawyer:<br clear="none"><a shape="rect" href="https://www.robertschriebman.net/articles/the-famous-irs-20-factors-used-to-determine-whether-a-worker-is-an-independent-contractor-revenue-rule-87-41/" rel="nofollow" target="_blank">https://www.robertschriebman.net/articles/the-famous-irs-20-factors-used-to-determine-whether-a-worker-is-an-independent-contractor-revenue-rule-87-41/</a><br clear="none"><br clear="none"> The Famous IRS "20 Factors" Used to Determine Whether a Worker is an<br clear="none"> Independent Contractor - Revenue Rule 87-41<br clear="none"><br clear="none"> The 20 common law factors listed below are not always present in every<br clear="none"> case. The IRS and state authorities know that some factors do not apply<br clear="none"> to certain occupations. The weight to be given each factor is not always<br clear="none"> constant. In other words, each factor is not automatically worth 5%. The<br clear="none"> degree of importance of each one may vary depending on the occupation<br clear="none"> and the reason for existence. Therefore, in each case, an IRS agent or<br clear="none"> state employment tax examiner must usually take into consideration two<br clear="none"> primary questions: (1) Does the factor exist? and (2) What is the reason<br clear="none"> for or importance of its existence or nonexistence?<br clear="none"><br clear="none"> Does the EDD use these same 20 factors in deciding California Employment<br clear="none"> Tax issues? Well, yes and no. You see, the EDD also has a list of<br clear="none"> factors; many more than 20. However, the EDD will often decide a case<br clear="none"> using the IRS standards if it is in their best interest to do so.<br clear="none"> Technically, the EDD is suppose to use its own factors, but this is a<br clear="none"> mere technicality.<br clear="none"><br clear="none"> Here are the 20 key factors found in Rev. Rul. 87-41 (1987-1 CB 296):<br clear="none"><br clear="none"> 1. Instructions: A person who is required to comply with specific<br clear="none"> instructions about the time, place and manner of work is usually<br clear="none"> considered an employee. If the employer has a right to require<br clear="none"> compliance with instructions, an employment relationship will usually be<br clear="none"> found to exist.<br clear="none"><br clear="none"> 2. Training: If the employer provides a training program or the<br clear="none"> individual is under some type of apprenticeship, an employee<br clear="none"> relationship will be found to exist. An independent contractor<br clear="none"> ordinarily uses his or her own methods and receives no training from the<br clear="none"> purchaser of the services. In fact, it is usually the independent<br clear="none"> contractor’s methods which bring him or her to the attention of the<br clear="none"> purchaser.<br clear="none"><br clear="none"> 3. Integration: How well do the person’s services fit into the overall<br clear="none"> business operation? The more they fit in (i.e., the more they are<br clear="none"> “integrated”), the greater chance that an employer-employee relationship<br clear="none"> exists.<br clear="none"><br clear="none"> 4. Services Rendered Personally: If the services must be rendered<br clear="none"> personally, there is a presumption that the employer is very interested<br clear="none"> in the methods as well as the results.<br clear="none"><br clear="none"> 5. Hiring, Supervising, and Paying Assistants: This generally shows<br clear="none"> control over the personnel on the job. Control seems to be synonymous<br clear="none"> with the employer-employee relationship (see also Rev. Rul. 70-440,<br clear="none"> 1970-2 CB 209).<br clear="none"><br clear="none"> 6. Continuing Relationship: The longer the continuing relation, the<br clear="none"> greater the presumption that it is one of employer-employee.<br clear="none"><br clear="none"> 7. Set Hours of Work: This, again, is a control factor. The more control<br clear="none"> the employer has, the greater is the chance that an employer-employee<br clear="none"> relationship exists.<br clear="none"><br clear="none"> 8. Full Time Required: If the worker must devote full time to the<br clear="none"> business of the employer, the employer has control over the amount of<br clear="none"> time the worker spends working and impliedly restricts the worker from<br clear="none"> doing other gainful work for third persons in the normal course of<br clear="none"> business.<br clear="none"><br clear="none"> 9. Doing Work on the Employer’s Premises: This is not necessarily a sign<br clear="none"> of control. Many independent contractors must perform their services on<br clear="none"> the premises. However, the use of a desk space, telephone or<br clear="none"> stenographic service or the use of heavy equipment, such as in the<br clear="none"> machine tool business, usually indicates and employer-employee<br clear="none"> relationship.<br clear="none"><br clear="none"> 10. Order or Sequence Set: If the worker must perform the work in a<br clear="none"> sequence set by the business, then he or she is more likely an employee.<br clear="none"><br clear="none"> 11. Oral or Written Reports: If the worker has to continuously submit<br clear="none"> oral or written reports to the employer or to the supervisors or<br clear="none"> foremen, this usually indicates a subservient relationship and one of<br clear="none"> employer-employee.<br clear="none"><br clear="none"> 12. Payment by Hour, Week, or Month: Regular periodic paychecks indicate<br clear="none"> an employer-employee relationship. Usually, independent contractors get<br clear="none"> paid in a lump sum, or a lump sum is agreed to be paid in installments.<br clear="none"><br clear="none"> 13. Payment of Business and/or Travel Expenses: If the employer pays the<br clear="none"> person for business and/or traveling expenses, the person is ordinarily<br clear="none"> an employee. On the other hand, a person who is paid by the job and who<br clear="none"> has to take care of his or her own incidental expenses is generally an<br clear="none"> independent contractor.<br clear="none"><br clear="none"> 14. Furnishing of Tools, Machinery and Materials: The fact that an<br clear="none"> employer furnishes tools, machinery, equipment, and materials tends to<br clear="none"> show the existence of an employer- employee relation; however, this is<br clear="none"> not always the case. I remember that one of the very first cases that I<br clear="none"> had as a young lawyer involved individuals working in a machine shop. I<br clear="none"> was able to prove that it was impractical for these people to bring any<br clear="none"> heavy equipment into and out of the shop.<br clear="none"><br clear="none"> 15. Significant Investment: Investment by the person in facilities used<br clear="none"> in performing services for another is a factor that tends to establish<br clear="none"> an independent contractor.<br clear="none"><br clear="none"> 16. Working for More Than One Firm: A person who works for a number of<br clear="none"> persons or firms at the same time is generally an independent<br clear="none"> contractor.<br clear="none"><br clear="none"> 17. Realization of Profits or Losses: One who puts assets at risk and<br clear="none"> who can realize a profit or suffer a loss as a result of his or her<br clear="none"> services is generally an independent contractor. An opportunity for<br clear="none"> profit and loss may be established by one or more of a variety of<br clear="none"> circumstances:<br clear="none"><br clear="none"> a. The individual hires, directs, and pays assistants;<br clear="none"><br clear="none"> b. The individual has an office, equipment, materials and work<br clear="none"> facilities;<br clear="none"><br clear="none"> c. The individual has a business reputation at stake;<br clear="none"><br clear="none"> d. The individual has exposure to liabilities in the ordinary course of<br clear="none"> business; and<br clear="none"><br clear="none"> e. The individual may bid on specific jobs and therefore run the risk of<br clear="none"> overbidding or underbidding.<br clear="none"><br clear="none"> 18. Making Services Available to the General Public: This factor usually<br clear="none"> indicates an independent contractor status. However, some independent<br clear="none"> contractors, such as certain aerospace defense specialists in electronic<br clear="none"> technology, are hired on a fairly long-term basis that occupies all of<br clear="none"> their time.<br clear="none"><br clear="none"> 19. Right to Hire and Fire: The right to hire and fire is a very<br clear="none"> important factor in determining whether an individual is an employee or<br clear="none"> an independent contractor.<br clear="none"><br clear="none"> 20. Right to Terminate: Generally, an employee has the right to<br clear="none"> terminate a relationship with an employer at any time without incurring<br clear="none"> a liability. This is particularly true if the employee is not under a<br clear="none"> written contract. On the other hand, independent contractors usually<br clear="none"> work under a written contract and do not have the right to terminate at<br clear="none"> will.<br clear="none"><br clear="none"><br clear="none">My recollection is that employers worrying that they might be a marginal<br clear="none">case can apply to IRS for an evaluation, which IIRC typically takes<br clear="none">about six months.<br clear="none"><br clear="none">Paul wrote:<br clear="none"><br clear="none">> Within months, AB5 was passed and codified the Dynamex decision into<br clear="none">> state law. So, yes Uber and Lyft are violating AB5. My issue is that<br clear="none">> AB5 covers, not only drivers, but names many other professions that<br clear="none">> had been getting on just fine.<br clear="none"><br clear="none">Had they, though? That's intended as a real question, not a rhetorical<br clear="none">one. I've not been a staff accountant in ages, and merely been on the<br clear="none">receiving end of employment-tax gamesmanship without taking detailed<br clear="none">looks at the law. I just took it as given that CDC and many others were<br clear="none">scofflaws and that 'contractors' like me had been in a passive<br clear="none">conspiracy with them to violate the law for (arguable?) mutual benefit.<br clear="none"><br clear="none">According to an almost classically half-assed Wikipedia article<br clear="none">( <a shape="rect" href="https://en.wikipedia.org/wiki/California_Assembly_Bill_5_" rel="nofollow" target="_blank">https://en.wikipedia.org/wiki/California_Assembly_Bill_5_</a>(2019) )<br clear="none">the CA Supremes' 2019 'ABC test from Dynamex Operations West, Inc. v.<br clear="none">Superior Court replaced an earlier court-decreed 11-point test, the<br clear="none">'Borello test' from the 1989 case S.G. Borello & Sons, Inc. v.<br clear="none">Department of Industrial Relations.<br clear="none"><br clear="none"><a shape="rect" href="https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/posts/california-will-dynamex-dynamite-the-borello-factors" rel="nofollow" target="_blank">https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/posts/california-will-dynamex-dynamite-the-borello-factors</a><br clear="none">covers the change.<br clear="none"><br clear="none">As recounted there, the Dynamex decision started out by summarising the<br clear="none">Borello test:<br clear="none"><br clear="none"> "The trial court described the Borello test as involving the<br clear="none"> principal factor of 'whether the person to whom services is rendered has<br clear="none"> the right to control the manner and means of accomplishing the result<br clear="none"> desired' as well as the following nine additional factors:<br clear="none"> <br clear="none"> (1) right to discharge at will, without cause;<br clear="none"><br clear="none"> (2) whether the one performing the services is engaged in a distinct<br clear="none"> occupation or business;<br clear="none"><br clear="none"> (3) the kind of occupation, with reference to whether in the locality<br clear="none"> the work is usually done under the direction of the principal or by a<br clear="none"> specialist without supervision;<br clear="none"><br clear="none"> (4) the skill required in the particular occupation;<br clear="none"><br clear="none"> (5) whether the principal or the worker supplies the instrumentalities,<br clear="none"> tools, and the place of work for the person doing the work;<br clear="none"><br clear="none"> (6) the length of time for which the services are to be performed;<br clear="none"><br clear="none"> (7) method of payment, whether by the time or by the job;<br clear="none"><br clear="none"> (8) whether or not the work is part of the regular business of the<br clear="none"> principal; and<br clear="none"><br clear="none"> (9) whether or not the parties believe they are creating the<br clear="none"> relationship of employer-employee.”<br clear="none"><br clear="none"><br clear="none">Now, I must admit that I've been out of this field for too long, and am<br clear="none">trying to acquaint myself with old and new material in a tearing hurry,<br clear="none">but on a quick parse, the Dynamex 3-point ABC test and the Borello 11-point <br clear="none">test seems like both kissing cousins to the IRS twenty-factor test and<br clear="none">the USSC criteria. There are some minor differences in detail, but they <br clear="none">all share the same underlying thrust.<br clear="none"><br clear="none">I mean, tell me if I'm wrong in that. This current post is being<br clear="none">written on the fly with almost no contemplation. But my gut reaction <br clear="none">is that the ABC criteria hammered into AB5 amounts to the same concepts <br clear="none">and guiding principles I've known since dinosaur days from Federal tax<br clear="none">and USSC caselaw.<br clear="none"><br clear="none">So, if I'm correct in that really-quick assessment, then I'd take a lot<br clear="none">of convincing that either the CA Supreme Court or the Legislature did<br clear="none">anything very novel. _Maybe_ the need to meet all three prongs of the<br clear="none">ABC test is 'overly rigid'. I'd have to think about that, and about how<br clear="none">the administrative and caselaw is or is not likely to shift. My gut<br clear="none">sense is: I doubt it would much, in part because judges aren't stupid<br clear="none">or inflexible and our legislators aren't stupid or inflexible even if<br clear="none">they sometimes err and need to about-face while claiming not to have<br clear="none">done so.<br clear="none"><br clear="none">But, speaking of inflexible (and how's that for a segue?)....<br clear="none"><br clear="none"><br clear="none">The Linneus Bottomus<br clear="none"><br clear="none">Prop. 22 includes a certain provision, and, wow. It binds the<br clear="none">Legislature permanently against making _any change_ to legal provisions <br clear="none">hammered into California statutues by Prop, 22 unless the Legislature<br clear="none">has a 7/8 supermajority.<br clear="none"><br clear="none">Seven-eights. A 87.5% supermajority vote. Permanently.<br clear="none"><br clear="none">Because, it's not like the Legislature are our elected representatives<br clear="none">who we trust to act for us diligently on pain of our replacing or<br clear="none">recalling them, or overturning their actions in court. Oh, wait, that's<br clear="none">exactly who they are.<br clear="none"><br clear="none">Even if I were utterly in support of every other part of Prop. 22, that<br clear="none">provision would be an automatic dealbreaker -- an absolute HELL NO.<br clear="none"><br clear="none"><br clear="none">> So if the TV spot is correct and 4 out of 5 app-based drivers prefer<br clear="none">> the IC status that is what they should have.<br clear="none"><br clear="none">You know, back when I had that illicit 'independent contractor' job at<br clear="none">California Digital, if the local news station had put me on the air, and<br clear="none">said 'Mr. Moen, do you feel your job at Mr. Arun's company on an<br clear="none">independent contractor basis is the right thing and is compliance with<br clear="none">a just application of employment law?', I would have smiled and said <br clear="none">'Absolutely. I love the opportunity Mr. and Ms. Arun have given me, <br clear="none">and appreciate it every day.' I'd say that even though I knew it was<br clear="none">grossly illegal and somewhat exploitative, because it brought home food<br clear="none">and paid my rent.<br clear="none"><br clear="none">Rare is the person who's relying on a somewhat exploitative subsistence<br clear="none">job who's willing to bite the hand that feeds -- at least not until<br clear="none">he/she has moved on to something better. I know, because I've been that<br clear="none">guy.<br clear="none"><br clear="none"><br clear="none">Anyway, I'm taking a day to reconsider all (well, some) of my hasty<br clear="none">ballot decisions, and will probably rewrite some. However, the 7/8<br clear="none">thing presently inclines me to change 'no' on Prop. 22 to 'HELL NO'.<br clear="none"><br clear="none">However, as Dennis Miller used to say (back when he was funny), <br clear="none">'But that's just my opinion. I may be wrong.'<div class="ydp9c2ad4a1yqt8241548171" id="ydp9c2ad4a1yqtfd96055"><br clear="none"><br clear="none"><br clear="none">_______________________________________________<br clear="none">conspire mailing list<br clear="none"><a shape="rect" href="mailto:conspire@linuxmafia.com" rel="nofollow" target="_blank">conspire@linuxmafia.com</a><br clear="none"><a shape="rect" href="http://linuxmafia.com/mailman/listinfo/conspire" rel="nofollow" target="_blank">http://linuxmafia.com/mailman/listinfo/conspire</a><br clear="none"></div></div>
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