Tag Archives: temporary workers

The Predatory Fight to Keep Workers Temporary and “Independent”

Little Rock      Once upon a time we might have been able to look at the Department of Labor to lead the way in drawing the bright lines that establish whether a worker is an employee or an independent contractor, regular or temporary.  If that didn’t work, perhaps there might be some way to look at cases before the National Labor Relations Board that were forced to decide whether a worker was regular enough to vote and be part of a bargaining unit or temporary, casual, and out of luck.  Those were the “good” old days.  You know the 1900s.  The twentieth century.  Now, if you want to try and figure this out, especially given the predatory and pernicious way that app-based companies have hired hundreds of thousands of workers and pretended they are all free as birds, you have keep your eye on California, where legislators, regulators, and the public understand how critical this issue is.

California legislators, after years of struggle with the issue, decided once and for all, that gig workers, not just with the giant predators Uber and Lyft, but across the board, were employees, not independent subcontractors.  In California, as opposed to say, Arkansas or Louisiana or most of the lower forty-right, that actually means something.  A worker has some rights.  Higher minimum wage and paid sick days are a good examples, but that’s just where it starts.  The California Labor Code is extensive and gets over the walls and into the workplace and up in a boss’s face with a long list of “do rights.”

Uber, Lyft, Door Dash, and a gazillion others want to pretend they are tech companies and simply a computerized algorithm application that is linking a customer with some Joe or Jane out in the wild blue who wants to provide a service.  Of course, they want you to overlook the fact that they interview and qualify you, insist on what age and condition your vehicle is, set the rates you can charge, and on and on.  In labor unions, we would say that they set the hours, wages, and terms and conditions of employment.  The only thing they arguably don’t do is set the hours.

These companies aren’t happy with the California law.  They tried to make a deal.  They would agree to talk with their workers.  They would do a little of this and that, but, please, Mr. Golden Bear, don’t say the “e” word and make our workers officially “employees” of our companies.  The reason is clear.  Their business model is based on exploiting their workers and not paying minimum wages, social security, medical benefits, or of course any of the costs associated with the worker’s tools, meaning their car, its gas, and condition or the bicycle, scooter or whatever.  They now have raised a $100 million in hopes the voters of California will let them go back to rip-off the workers world.  That’s a long shot, if I were betting.  Californians are the France of America.  They like their benefits.  Who wouldn’t?

Listening to the radio on the road the other day, the absurdity became clear as I listened to one of the companies claim they were going to make a change in their app that would make their drivers more independent.  They were going to let them know if they picked up a fare on Uber how far they would have to go, so they could take it or pass.  My first thought was holy-moly, you mean a driver was clueless before on whether or not the fare was around the corner or miles away.  Sure enough, a driver was interviewed who talked about having landed a fare from Los Angeles to Bakersfield more than a hundred miles away.  He made money going, but then was out of luck on the way back.

A couple of tweaks are not going to change the story out there.  When you’re working for the man, you’re working for the man, whether you can see him through your app or not.  If the company controls the terms and conditions of employment, you’re an employee and entitled to the pluses or pitfalls that come with it.  Period.

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Zero-hour Contracts, Compromise Agreements, and Payment by Outcomes

Workers at the Hovis (Premier Foods) bakery protesting against zero-hours contractsLondon   One of the more frightening things about working around the world is stumbling over new ways that employers have found to screw workers.  In Great Britain with the erosion of labor protections and shrinking of unions, they seem to have mastered the art in new and imaginative ways, dressed in high style with fancy euphemisms.  Here are three of my favorites:  zero-hour contracts, compromise agreements, and something called “payment by outcomes.”

Workers get employment contracts in England.  Completing 12-months of work for an employer used to guarantee contracts giving them certain benefits and entitlements as a common-law ownership of the job almost.  Of course now the government says you only get those kind of guarantees after 2 years of steady work.  I was regularly hearing of 11 month or 50 week contracts where workers, even organizers working for unions, were given a succession of so-called contracts running short of a year and then renewing after a break in service, if they were still interested and the worker was still willing.  The contracts were only entitlements for certain agreements made, and then capped, during that time period.   Nonetheless a zero-hour contract tops the cake.

What in the world might that be?  Well,  a zero-hour contract is a special arrangement with what North Americans might refer to as an on-call, casual, or a temporary worker.  The so-called contract, if you insist on calling it that, obviously guarantees no hours of work, but essentially says that a worker can be called to work and get some varying number of hours from time to time.  Not surprisingly, employers in England defend the contracts and applaud the flexibility it gives them over the workforce.  US-based companies like McDonalds and Amazon are predictably big fans, but so are UK-based outfits.  An organizer told me that workers are not guaranteed any hours but have to be available for hours.  That may be true in practice, but that actually violates the terms even of the zero-hour contracts, which are also supposed to give the worker the right to take or pass on the job, similar to casual or temp workers in the US for example.  This can’t be good.  I read a newspaper report that in the Queen’s Speech she was going to argue for tightening up on zero-hour contracts, and the Queen is someone who probably understands zero-hour work and a worker’s right to either accept or turndown any particular job better than most.

Of course the one thing a “contract” gives you is protection from being fired at will without just cause, except there’s also a newish kind of thing called a “compromise agreement,” which seems especially tailored to the world of privatized, subcontracted services that has become the standard in Britain.  A worker might have a contract with her employer but her employer might be subcontracting the worker for other employers or branches of the government.  If the contracting employer wants to get rid of her for any or no reason, then despite her valid contract with her own employer, she has no work.  What’s to be done with her?  Well, here comes the “compromise agreement.”  A compromise agreement might or might not give her a bit of money to go away without shouting too loudly.  It would definitely end any future claims she might have legally.  She would often get a closed file and maybe a recommendation.  Nonetheless under any of these ifs, ands, and buts the one thing that she will not get is what she might have thought she had with her employment contract, which is a job.  Masterful, huh?

“Payment by outcomes” isn’t something that affects individual workers per se, but does affect a fair number of nonprofits or charities, as they are called on the other side of the water, and in this new world of arms-length bosses and newly precarious workers, “payment by outcomes” does slide downhill over their jobs.  Social Policy magazine ran an excellent piece in a recent issue entitled “Leadership Development is Not a Deliverable,” which got at the same point from another angle.  In England they have taken it to another new level, literally not paying the nonprofit contractor at all until the outcomes have actually been achieved.  As described to me by one organizer, some nonprofits are literally borrowing the money to fulfill the contract and being caught short when for one reason or another the outcome is met or not, determining whether or not they get paid and whether or not the worker also has a job.  Essentially governments are transferring all of the risk to the contractors in the worst-case scenario.  The literature seems to applaud a lot of this direction on the international aid scene where efficiency and corruption help provide the rationale, but domestically in countries like England or even as it migrates to North America, that’s not so much the issue as abandoning accountability, responsibility, and oversight.

Whenever bargaining power is unequal between parties, it’s reasonable to try to figure out who is getting screwed when and where.   In these novel, new employment and contracting schemes, unfortunately it is very easy to see workers on the short end of these sticks.

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