There’s been quite a buzz in California because the politicians out there rather quickly moved to get rid of the gig economy. In my mind, it’s not hard to see why. The gig economy, as a whole, hurts workers. I have opined before that there are many benefits to classification as an employee. In brief, employers stand to save as much as thirty percent by misclassifying employees. Employees have many protections that independent contractors just don’t.
I rarely broach this topic. There are likely to be comments that these ideas are crazy or fanciful. We are independent contractors. We have always been independent contractors. But when you look at the common law definition of an employee, whether the “employer” has control over the work you’re doing, the waters can and do become very muddy. I came across a very interesting truth years ago. An employer and an “employee” can call the relationship an independently contracted relationship, but upon review in an executive or judicial matter like taxes, unemployment, discrimination, workers compensation, the government or a judge can still make a determination that the relationship is an employer-employee relationship. It doesn’t matter what you think, it matters how you’re treated. Of course, ironically, if you think you’re an independent contractor, chances are you’re not going to bring an unemployment claim under a common law employee theory!
Why is this worth talking about? Succinctly, the government has a very strong interest in eradicating the gig economy. There will always be, logically, more employees than employers. When you introduce the gig economy, that is, the misclassification of employees as independent contractors, you introduce many more entities the government has to track to enforce its tax laws. Government may also say it’s about protecting workers, but ultimately, I’d bet money it’s about the money.
So we, us, our entire industry, in many states, but right now California, will have to decide how to handle this. One solution that has been proposed is having a court reporter carve out, exempting us from any law that more strictly classifies workers. Another solution, I propose, is to be ready for reclassification. Start looking at all the different ways employment contracts can be structured and unions can be formed. Start figuring out ways to keep your current quality of life and work as, ostensibly, a commission-based employee, or an employee paid by the page.
This is not so much a declaration of how we should do things, but a serious suggestion to everyone that follows me, no matter what side you’re on, start thinking about how you can benefit yourself and your fellow reporter regardless of how things shake out. If you win an exemption in state law, fine. If you do not, and you find yourself reclassified, take advantage of every single one of your new rights without hesitation. Quite frankly, if it comes down to it, and you have to unionize and get the right to refuse work in your union contract, do it. Do whatever it takes. But let this be a time where we inform each other and share opinions on which way to go, and why that’s more or less valid than another option.
Keep in mind, even as independent contractors, understand that you can still lobby for legal protections. NYC has, according to the Freelancers Union and others, taken major steps to protect freelancers by requiring independently contracted employees actually have contracts, and enacted discrimination protection for independently contracted workers. So you see? It is not a binary choice of win or lose. This is now a matter of win no matter what happens. Do not close off your mind to the possibilities, and you will find a route to victory in every state this becomes an issue.