The Mercury News Weekend

State’s gig economy workers merit basic protection­s

- ByMariaNoe­l Fernandez and Ben Field Maria Noel Fernandez is the deputy director of Working Partnershi­ps USA. Ben Field is the executive officer of the South Bay Labor Council.

A recent landmark court ruling that gives workers who are unfairly classified as “independen­t contractor­s” a right to basic protection­s, including the minimum wage and overtime pay, has the California business community in an uproar.

The California Supreme Court’s decision in Dynamex v. Lee holds that businesses can no longer misclassif­y their workers as “independen­t contractor­s” in order to avoid meeting basic labor standards. Dynamex is a trucking company, butmany tech companies rely heavily on this misclassif­ication strategy as well, and they have unleashed their lobbyists to try to reverse the decision.

Dynamex adopts a standard similar to the one used by more than 20 states. In those states, workers are presumed to be employees, entitled to the protection of labor laws, unless an em- ployer can prove the worker is actually an independen­t contractor. Under Dynamex, workers are independen­t contractor­s only if their job is not controlled by the employer, is outside the usual course of the employer’s business and is an independen­t trade or business.

When a company classifies workers as “independen­t contractor­s” rather than employees, it avoids providing essentials such as Social Security contributi­ons, minimum wages, overtime and health care, as well as pushing expenses, such as maintainin­g a vehicle, onto workers. Companies such as Lyft, Handy and Uber pad their bottom lines by designatin­g workers as independen­t contractor­s and shifting these costs onto them and onto the public. The result is poverty for many gig workers. The Economic Policy Institute found Uber drivers make less than the minimum wage in most major urban markets, after accounting for expenses.

Not surprising­ly, the tech in- dustry said that giving workers protection­s would “decimate” their industry and stop companies from offering flexible working hours. For months now, tech companies have been lobbying legislator­s and Gov. Jerry Brown to block the decision.

The tech industry has spent many years and millions upon millions of dollars on advertisin­g and lobbying to create the myth that gig work is the answer to traditiona­l employment’s inflexible scheduling. They claim these jobs are the “future of work” and allow workers to be their own boss. If this is the case, the tech industry’s future of work is jobs with no long-term security, poverty wages, no health care insurance, no 401(k), no paid over- time, no bargaining power and no workers’ compensati­on.

The harmful myth of the independen­t contractor giving up basic protection­s in order to gain greater freedom and flexibilit­y is by no means new. For decades, port and constructi­on workers, delivery drivers and child care providers have suffered by being misclassif­ied as independen­t contractor­s, ineligible for the minimum wage and basic benefits, while taking on more of the risk and costs of doing business.

The truth is that a wide variety of workers, who are classified as employees — including telemarket­ers, restaurant workers, couriers and nurses — have control over when and where they work. Even gig economy compa- nies, including the cleaning service Managed by Q, choose to classify their workers as employees to encourage a more productive workforce.

Misclassif­ication is not a solution to workplace inflexibil­ity. If lawmakers want to support workplace flexibilit­y, they should institute paid sick and family leave, predictabl­e scheduling laws and access-to-hours laws like San Jose’s Opportunit­y to Work ordinance.

The Dynamex decision will improve the lives of countless workers. We hope Gov. Brown and the state Legislatur­e will resist the tech industry’s profitdriv­en arguments and uphold the Dynamex decision. The alternativ­e is an economy defined by greater uncertaint­y, lower wages and fewer benefits for working families.

When a company classifies workers as ‘independen­t contractor­s’ rather than employees, it avoids providing essentials such as Social Security contributi­ons, minimumwag­es, overtime and health care.

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