February 26, 2020

Let's not "gig" working families

There are lots of ways working people can be deprived of their rights on the job. They can be discriminated against on the basis of race, nationality, religion, sex, sexual orientation, etc.

They can be denied pay for overtime, a practice known as wage theft. They can be cheated out of break- and mealtimes. They can be deprived of their rights to associate and organize.

They can be compelled to work under unsafe conditions. They can have promised benefits, such as pensions, taken away.

But maybe the worst way to abuse working people is to deny that they are workers at all.

Unfortunately, that’s just what Senate Bill 528, now making its way through the West Virginia Legislature, does. Titled the “Creating Uniform Worker Classification Act,” the bill comes straight from the American Legislative Exchange Council, a corporate-funded group that cranks out model state legislation that benefits big donors.

SB 528 allows businesses to reclassify workers as “independent contractors.” And that makes all the difference.

While U.S. and West Virginia labor laws are pretty weak compared to other economically advanced nations, state and federal laws do provide some protection for employees, sometimes including legal remedies.

By allowing companies to classify workers as independent contractors, this bill would take those protections away.

For example, an employee injured on the job is generally eligible for workers’ compensation. Independent contractors are not.

When employees lose jobs through no fault of their own, they’re entitled to unemployment insurance. Independent contractors are not.

Employees are protected to a degree by anti-discrimination laws (although West Virginia has yet to enact state anti-discrimination legislation based on sexual orientation). Independent contractors are not.

It’s tough to do these days, but employees have the legal right to organize unions and bargain collectively. Contractors don’t.

In the case of programs like Social Security and Medicare, costs for retirement and post-retirement health care are jointly paid for by the employer and the employee. Independent contractors are totally on their own.

Supporters of such legislation claim this will help facilitate the so-called “gig economy,” (a term that makes me think, perhaps appropriately, of the practice of stabbing or “gigging” frogs with barbed, pitchfork-like spears to harvest their legs for food).

The non-frog version refers to those parts of a workforce based on temporary and often short-term engagements. While there are people, generally those with specialized skills in high demand, who fit this profile, being reclassified as an independent contractor is a losing proposition for most working people.

According to the National Employment Law Center, SB 528, if enacted, would “allow employers in any industry to easily convert virtually any worker into an independent business, simply by presenting the worker with a take-it-or-leave-it contract that may not reflect the actual relationship between the parties.” Examples might include people working in home health care, construction, transportation, retail, etc.

The measure doesn’t just undermine workers’ rights and labor standards. The law center also cites research showing this kind of reclassification actually would result in lost revenue while also putting responsible employers at a disadvantage.

So is it possible to legitimately distinguish between an employee and a real independent contractor? In a word, yes.

Fortunately, there’s such a thing as an “ABC test,” according to which people may be fairly classified as independent contractors if they are outside the control of the hiring entity, the work they perform is outside the hiring entity’s usual business and the contractors are customarily engaged in this kind of work. That’s a sensible approach and one that should be allowed to stand.

West Virginia’s working families are having a hard enough time getting by these days. They certainly don’t need to be “gigged” by this kind of trick.

It’s bad enough when it happens to frogs.

(This ran as an op-ed in the Charleston Gazette-Mail.)

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