Tag Archives: Uber

Is The NEW GIG A New Bargain For Workers?

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Lost among the din of Twitter feuds and even more serious reporting on tax reform, is attention to a tax bill about gig economy workers that could impact more than just tax policy.

The New Economy Works to Guarantee Independence and Growth Act (NEW GIG Act) essentially allows firms such as Uber to withhold income taxes for workers without that withholding being construed as evidence of an employee-employer relationship. Boston College of Law Professors Shu Yi Oei and Diane Ring perceptively point out that the NEW GIG Act will help define how gig economy workers are classified for purposes of laws that cover employees like anti-discrimination laws, unemployment insurance, wage and hour laws and possibly workers compensation laws. Their argument is that NEW GIG allows companies like Uber to define their workers as contractors within the tax code and that helps creates a presumption of independent contractor status.

Though NEW GIG creates a safe harbor for gig economy companies that collect income taxes, NEW GIG does not abolish the common law test that distinguishes an employee from an independent contractor. The common law test rests on an employer having control over the method and means of work. But the tax code is a critical piece to classification of workers. True contractors are able to deduct their expenses from their taxes because legally they are running a business. Courts hold that when a driver or any other worker is essentially running their own business, they are an independent contractor. NEW GIG uses the tax code to encourage workers to take deductions for expenses and hence self-classify as contractors rather than employees.

Federal employment laws like the Fair Labor Standards Act depend on the so-called common law test distinguishing between contractors and employees. State wage and hour laws, fair employment laws and workers compensation laws may not always rely on those definitions. In cases where a state doesn’t use a common law test to distinguish between employees and contractors, the question would be whether NEW GIG would pre-empt those state lawsNEW GIG does not appear to have an express preemption clause, so courts could tend to uphold state employment laws that would conflict with NEW GIG. Lack of express pre-emption language in NEW GIG may also mean that courts wouldn’t pre-empt state employment laws that rely on the common law test distinguishing contractors from employees. If courts read NEW GIG as just a way for gig economy companies to collect income tax from their workers without creating an employee-employer relationship, then its impact could be muted on state laws and possibly on federal laws.

NEW GIG is sponsored in the Senate by John Thune (R.-South Dakota). Thune has recently criticized Uber for customer data breaches and sexual harassment allegations within the company. Those concerns have been echoed by Senator Mark Warner (D-Virginia) who is a leading proponent of the gig economy. (11) The fact that supporters of the gig economy appear to be questioning the practices of Uber could show the gig economy companies may not have an easy time in fundamentally altering the relationship between companies and their workers.

But Uber is not the only gig economy company and public statements by our elected officials don’t always match up with their actions. Even if NEW GIG is just a tax bill there is power in the perceptions and presumptions that would be created if NEW GIG were passed. Advocates for employee rights would be well advised to keep a close watch over the NEW GIG bills in the House and Senate.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Government, Legislation, Misclassification and tagged , , , , , , .

Uber: A Tale of Two Cities

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While London’s ban of ride-hailing service, Uber, seems poised to continue for the forseeable future, Lincoln, Nebraska may soon lessen formal regulation for Uber drivers.

The Lincoln City Council is scheduled to vote on an ordinance on October 16th that would formally eliminate a requirement that Uber and Lyft drivers pass a physical, background check and test about Lincoln that taxi cab drivers currently have to pass in order to drive a taxi in Lincoln.

According to city officials, this requirement is not currently being enforced. The ordinance has the public support of Mayor Chris Beutler and at-large City Councilwoman Leiron Gaylor-Baird. Supporters of the ordinance cite a decrease in drunken driving from ride hailing as well as a decrease in traffic and increase in downtown parking.

Taxi cab companies state the ordinance lets unqualified drivers on the street and presents unfair competition to traditional taxi cab companies. What hasn’t been eluded to in the debate over ride hailing litigation in Lincoln, but has played more prominently in the London debate, is the fact that ride-hailing companies treat their drivers as contractors which excuses them from paying basic employee benefits like unemployment and workers compensation insurance. This allows services like Uber to undercut traditional taxis on price.

The City of Lincoln doesn’t have a workers’ compensation ordinance. But allowing Uber competitive advantages over taxi cab companies indirectly impacts workers compensation because if Uber takes market share away from traditional taxi cabs fewer drivers will be covered under workers compensation.

Lincoln does a have a human rights ordinance that covers more employees than either state or federal anti-discrimination laws. By allowing Uber a competitive advantage over traditional taxi cab companies, Lincoln is potentially excluding workers from coverage of that ordinance since Uber denies it is an employer. Traditional taxi cab companies are subject to Lincoln’s human rights ordinance.

Many business observers have argued that Uber’s biggest innovation is “regulatory arbitrage.” Regulatory arbitrage is a fancy word for lobbying. Uber hired former Obama advisor David Plouffe. In the United Kingdom, Uber’s chief lobbyist is the godfather to one of the children for former Prime Minister David Cameron. It’s safe to state that a lot of Uber’s supposed innovation stems from old-fashioned lobbying.

Other cities, most prominently Austin, Texas, have attempted to regulate Uber by imposing the same requirements on ride hailing drivers that they do on taxi drivers. Uber was able to successfully lobby the Texas Legislature to pass a state law that preempted municipal regulation of ride-hailing services.

Though the tech sector is regarded by some as an advocate for LGBT rights, Uber was willing to accept an amendment to the Texas preemption legislation that promoted discrimination against transgender individuals.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Government, Legislation, Workers' Compensation and tagged , , , , .

Is the Rule of Law Under Attack?

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Chinese Rights Lawyers Wang Yu (top) and Bao Longjun (bottom)

Chinese Rights Lawyers Wang Yu (top) and Bao Longjun (bottom)

Our colleague in North Carolina recently wrote a blog post about a terrorist attack on lawyers in Pakistan that killed 60 lawyers. It was an attack on the rule of law. A less bloody, but no less brutal, campaign against the rule of law is taking place in China under the increasingly authoritarian rule of Chinese leader Xi Jinping.

Jinping has targeted so-called “rights lawyers,” or lawyers who, like United States’ plaintiffs’ lawyers, represent individuals against major institutions such as corporations and the government. In rhetoric echoing attacks on U.S. trial lawyers, Chinese rights lawyers have been described as “abusing courts to create personal gain and ‘social chaos’.”

Chinese rights lawyers make up a small part of the 270,000 lawyers in China, but in China, there also so-called “barefoot lawyers” who aren’t lawyers at all but are usually self-taught workers and peasants who have learned the law. Barefoot lawyers often advocate for employees in industrial work injury and wage-dispute cases. These barefoot lawyers have frequently been victims of these abuses as well. China’s industrial workforce is similar to the U.S. workforce in the respect that many workers are vulnerable to exploitation because of their legal status. In the United States, undocumented immigrants are vulnerable on the job. In China, residents of rural provinces who move to industrial urban provinces have a lesser legal status in those provinces because of the hukou system. Barefoot lawyers often come from the same rural background as their clients. Like the better educated and credentialed “rights lawyers,” barefoot lawyers are also subject to harassment and repression from the state.

Though U.S. lawyers are generally free from official harassment, some corporate litigants have resorted to totalitarian tactics against plaintiffs’ attorneys. U.S. District Judge Jed Rakoff smacked down Uber for hiring a former CIA agent to investigate an attorney prosecuting a class action suit against the ride-hailing company. Investigation tactics included using fake reporters to try to probe the plaintiff’s attorney for personal information.

So while the rule of law is much more secure in the United States than it is in many other countries, it is still threatened by overheated rhetoric and underhanded tactics.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Government, justice, Legislation and tagged , , , , .

Can Ride-Hailing Be Done Right in Rural America?

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Lincoln-based startup Liberty has announced that it has partnered with Panhandle Trails in rural western Nebraska for a ride-hailing app similar to Uber or Lyft to supplement public transportation options. This could be a positive development for injured workers in rural areas, as long as Liberty protects the rights of its potential drivers.

It is fairly well known that disability rates are higher in the rural United States than in urban areas. This is often attributed to physical nature of rural jobs and the older rural population. However, transportation costs are another factor in these higher rates of disability. The cost of transportation from a relatively isolated rural area can be too high to justify taking a job. This concern is frequently an issue in workers’ compensation litigation in Nebraska. If Liberty can make it easier for injured rural residents to find employment, I wish for its success.

But the problem with ride-hailing apps is that companies want to deem their drivers to be independent contractors rather than employees. Driving jobs are relatively dangerous, and the costs of those work injuries will be shifted onto taxpayers and the drivers rather than workers’ compensation. However, innovation need not mean that workers go without the protections of workers’ compensation. Debbie Berkowitz with the National Employment Law Project points to the example of the Black Car Fund where Uber drivers in New York have created a workers’ compensation plan.

Liberty states that they want to comply with their legal obligations, which is encouraging. But when Uber CEO, Travis Kalanick, calls Uber drivers the “other dude in the car” and wants to have driverless cars so he can get rid of Uber drivers altogether, workers and their lawyers have good reason to be skeptical of the sharing economy. That’s part of the reason that advocates for employees are fighting legislative efforts to broadly exempt sharing-economy employees from workers’ compensation and fair-employment laws. Other advantages of having drivers classified as employees means that states will not miss out on tax revenue. Holding the status of an independent contractor also increases paperwork and the risks of not complying with tax laws for a driver.

Aside from the issues related to workplace law, I would hope that expanding ride-hailing apps to rural America won’t be used as an excuse to stop funding rural public transportation. But overall, ride-hailing will be a net positive for rural areas, as long as it is done in a way that protects the rights of drivers.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Misclassification, Sharing Economy and tagged , , , , , .