Coyote Blog

Despite my advancing years, I still like to stay on the bleeding edge of tech, at least tech gadgets (in fact I would argue that I am of an age I have a hard time taking anyone seriously who calls themselves a hard-core programmer that hasn't had to write in assembly language, as I did back in college).

So I enjoy having 20-something's regale me on new tech goodies at sites like Gizmodo and Engadget.  But a running theme through all these sites is their shocking economic ignorance.  A good example was yesterday at Engadget with Sean Buckley writing on a decision in California to declare Uber drivers as employees of Uber rather than independent contractors.  Months ago I described a similar decision as signalling the death of Uber.  Buckley writes: (my emphasis added)

If you ask Uber, none of their drivers are employees -- just independent contractors who happen to use their network to get fares. If you've been watching the news though, you know some drivers disagree: filing lawsuits both in California and the UK for the right to be recognized as employees. Those drivers just got some vindication, by way of the California unemployment office. According to the Employment Development Department, at least one former Uber driver qualifies for unemployment benefits.

According to Reuters, the EDD decided that a former Uber driver in southern California was an employee; the decision was held up twice by a administrative law judge when Uber appealed. Apparently, Uber's control over the driver was a deciding factor -- the company gets to define fares, bar drivers from picking non-Uber passengers and can even charge drivers a cancellation fee for choosing not to pick up a fare. That's "in fact an employer / employee relationship," according to the decision.

Uber says this ruling doesn't have any impact on pending litigation, but it's certainly a feather in the hat of drivers who want a more traditional relationship with the company. We'll have to wait and see how that turns out as the class-action lawsuit moves forward.

I won't repeat what I wrote here, but suffice it to say that I think Uber is a dead duck in the long run if forced to treat drivers as employees.

The amazing line to me is the highlighted one.  What gives the author confidence that most Uber drivers "want a more traditional relationship with the company."  Is that what you want, more timeclock-punching and 100-page employee manuals?  My experience is that most Uber drivers value the fact that it is not a traditional job environment, and gives them a ton of flexibility on work hours, productivity rates, etc.    And why, by the way, is it assumed that every job must offer the same kind of employment relationship?  If someone doesn't like Uber, there are plenty of companies that will happily treat them like a mindless drone if that is what they like rather than being treated as an independent actor.

By the way, beyond the economic and liberty issues involved, I also think the California decision is just plain wrong in terms of the control Uber exercises.  Sure Uber sets standards for its drivers, but everyone does that for their contractors.  They key thing it does not do is set work hours and productivity rates.  They don't care when you work and they don't care how many passengers you carry in an hour, because you just get paid when you drive a customer.  Can you imagine a company that doesn't care when its employees show up for work or how hard they work when they do show up?  Neither can I, which tells me that this is NOT an employer-employee relationship.

Remember the conversation a few weeks ago over the NY Times article that tried to make Amazon out to be some kind of employer ogre because it sets tough productivity standards for employees?  That is what companies do when they have to pay by the hour (which is essentially how all employees, especially after Obama's most recent changes, must be paid).  So if you don't like companies that set tough productivity standards for workers, then why are you trying to kill labor models that don't require those kinds of standards?

Eugene Volokh is writing about a case against an attorney who defrauded his firm.  The details are not important, what caught my eye is what is highlighted below:

Once again, this case does not turn on the bare fact that Attorney Siderits wrote-down his time; this case is about Attorney Siderits abusing his write-down discretion and lying to his law partners in order to collect almost $47,000 in bonuses to which he was not entitled. Attorney Siderits cannot seriously contend that firms must have a written policy forbidding stealing and lying before a misconduct charge for one of these actions can be sustained.

That certainly makes sense, but it does not apply at the California EDD, which administers (among other things) the state unemployment insurance program.  We terminated an employee for accepting money from a customer to provide a service, then pocketing the money and not providing the service.  I call this "theft", and had assumed all would understand that stealing from customers is a firing offense.   When California sent out its unemployment paperwork, we said this employee had been fired "for cause", which in many states means that they are ineligeable for full unemployment payments.

However, after some back and forth, I was eventually informed by the EDD that since I did not have an explicit policy in the employee manual that said "employees may not steal money from customers", then they could not recognize that she was fired for cause.  Even if I had put that in the manual, it probably would not have counted because the next thing EDD asked for is something in writing proving, with the employee's signature, that she had read that passage.   And from past experience with the EDD, my guess is that they likely would not have accepted firing on the first offense, but would have insisted we needed to have her steal from multiple customers, with written warnings each time, before we terminated her.

Basically, what this all means is that while the law technically says people can't be paid unemployment if fired for cause, California has made the standards of proof so absurd that this requirement is meaningless.  Everyone is going to get unemployment.

As it turns out, there is a silver lining from this lack of diligence by the state.  My business is seasonal and I can only offer summer work.   Most of my employees are happy with this, as they like to take the winter off (many are retired).  One is not supposed to collect unemployment if he or she is not actively seeking work, but my employees have discovered that California does zero dilligence to check this.  So some of them lie and say they are looking for work over the winter when they are not, and collect unemployment.  I know of two couples who spend their winter in Mexico but still collect their California unemployment like clockwork.   Not only is California not dilligent about it, but when I tried to report someone I knew who was collecting unemployment but not even in the country, I was threatened by the EDD official that I was risking substantial personal liability by submitting such a claim and opening my self up to civil suits and even prosecution for harassing the worker.  So of course I dropped it.

So what is the silver lining?  California is so eager to hand money in the off-season to support my employees' seasonal vacations that my unemployment insurance premium rate is already the worst possible.  My rates can't go any higher.  So if they insist on giving state money to a thief, it's not coming out of my pocket.