
Postmates Wins New York Ruling Finding Couriers Not Employees - danso
https://www.bloomberg.com/news/articles/2018-06-21/postmates-wins-new-york-ruling-finding-couriers-not-employees
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jkaplowitz
A few things to note about this decision:

It's a 3 to 2 decision from one of four mid-level appellate courts in NY's
state court system. Bloomberg cited the original opinion but didn't link to
it, so I have no idea how impassioned the dissent was or if the majority's
opinion is well reasoned as applied to Postmates' model specifically. I
wouldn't assume that all gig economy companies are alike in the legal
particulars.

Leave to appeal to NY's top-level court could be applied for and granted, but
if it's not, this will be binding precedent at the trial level in NY's third
judicial department, which covers much of NY state's land area except Western
NY and the areas in and around NYC. Other NY trial courts have to follow the
appellate court rulings from their own judicial department, but if none
exists, they have to follow other departments' appellate rulings like this
one.

If a split develops among judicial departments, the top-level NY court might
make a ruling binding statewide.

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schoen
> Bloomberg cited the original opinion but didn't link to it

I found it at

[http://decisions.courts.state.ny.us/ad3/Decisions/2018/52523...](http://decisions.courts.state.ny.us/ad3/Decisions/2018/525233.pdf)

if you'd like to have a look; this includes both the opinion and the dissent.

~~~
logicallee
This is a short decision (6 pages including the dissent). The dissent is not
impassioned, but rather starts with dryly reciting the facts, then says:

>Although the record contains factors that could support a contrary
conclusion, including that couriers are not required to wear any uniform, can
work for competitors and determine the route for delivery, substantial
evidence supports the Unemployment Insurance Appeal Board's finding that
sufficient supervision, direction and control was exercised by Postmates to
establish an employment relationship.

It also specifically points to differences between this and another case:

>Our recent decision in Matter of Courto (SCA Enterprises-Commissioner of
Labor) (159 AD3d 1240 [2018]) does not, as Postmates contends, compel a
different outcome. All of these cases are fact specific and there are several
key factual distinctions between this case and Courto that substantiate the
Board's finding of an employment relationship here, but not in Courto.

It then dryly recites the facts in that other case.

So this absolutely doesn't seem like the kind of thing that sets a
"precedent". It is not really couched in landmark language.

Read for yourself at parent's link - the ruling and dissent are together 5 and
half pages. It's really quite specific and doesn't seem to generalize at all.

Note: not a lawyer, not well-versed in this area of law.

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test6554
People need to do more research when they think about taking on these gig
economy jobs full time. The first couple gigs you accept, you should log all
your hours, even the hours you were on standby between gigs.

You need to know what your cost of living is including rent, food, insurance,
taxes, etc. It should include all of your life goals like possible
homeownership or a family as well as a decent amount toward retirement.

Then you need to know what your income and expenses (like vehicle maintenance,
etc.) are projected to be and ensure that they meet your cost of living needs.
If they don't meet this, then that path is not one you can accept.

And if everyone did their research, they wouldn't accept it either at current
rates. You almost need a business plan since you are a contractor of unskilled
labor.

~~~
save_ferris
> And if everyone did their research, they wouldn't accept it either at
> current rates.

This would be true if there were better-paying alternatives out there that
were accessible to most people, but there just aren't for many.

One thing that gig companies have going for them is the (relatively) low
barrier for workers to earn money in an economy that hasn't seen significant
and consistent wage growth in years.

If you're struggling to get a job in the first place, doing all of the
planning you've outlined could feel like premature optimization.

~~~
jstanley
> This would be true if there were better-paying alternatives out there that
> were accessible to most people, but there just aren't for many.

Exactly this. People like to complain about low-paying jobs as if they're
exploiting the workers, but the workers aren't stupid. If there were better
options available they would take them.

Trying to crack down on low-paying jobs is just cracking down on the only work
available at all.

~~~
walshemj
That's not really true a lot of these gig jobs are replacing existing (low
paid) jobs where you would have been an employee - but at a cheaper rate and
avoiding the employers side of NI - effectively UK tax payers subsidise Uber
et al.

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extralego
_> Postmarked couriers aren’t required to report to any supervisor, and are
free to work as much or as little as they want with no set work schedules,
according to the majority ruling._

“Control” here is falling prey to the freedom fallacy; something we should
expect a judge to overcome.

Because the employee’s value is only known to the employer and the employer’s
value only to the employee, the only calculable control is in the exchange.

If the employer pays the employee up front, the employee has control.
Otherwise, they don’t.

Independent _contractors_ manage this with a per-job _contract_ only good for
liability, but _not_ control. The difference between an employee and an
independent contractor is merely in the nature of the agreement over time.
“Control” has nothing to do with it.

What am I missing?

~~~
pkaye
> If the employer pays the employee up front, the employee has control.
> Otherwise, they don’t.

Does that mean the contractor that comes to work on your house is your
employee?

~~~
NegativeLatency
They might be if you were a copration, but you are a private individual.

~~~
colechristensen
So I can hire a personal assistant and manage every minute of their day and
call them a contractor?

~~~
ShabbosGoy
Yes. That’s what made Tim Ferriss famous.

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dalbasal
I think judges need to be able to kick some thungs back to parliaments, with a
demand/request for new legislation clarifying ambiguity.

It should not be so hard to determine what something is legally, considering
how many people are affected. There are obvious implications to defining these
grey areas using precedence, the goals of the legislation are less important
in a courtroom than technical aspects of the law.

On one hand, a lot of these gig companies (especially Uber) could not have
scaled as they did using regular employment arrangements. There were
undeniable efficiency gains. Many of these benefit employees/contractors too.
One big benefit is having far less gatekeeping, which benefits those who tend
to be kept out by gatekeepers.

On the other hand, these driving and couriering gigs are (using common sense
categories) more like casual part time jobs than "true" contractors. Ie, they
are exactly the types of vulnerable workers that a lot of labour laws were
written to protect.

Find a legislative solution. There ways to maintain flexibility, but pretend
Uber is contracting freely with a peer. Call it something new. Make rules. Do
your job.

