Imagine you drive a van for SuperShuttle. You take passengers from their homes and hotels to the airport and back. The shifts are long and the pay isn’t great, but hey, it’s a job.
One day, the company tells you the deal has changed. Your job will stay almost exactly the same: You’ll drive a SuperShuttle van, wear the company uniform, follow its rules, drive how and where it tells you, and get paid an amount that it decides—but you’ll have a little more flexibility in your work hours. Oh, and you’ll have to buy a van. Yes, spend your own hard-earned money (or, more likely, borrow and pay interest) to purchase a blue-and-yellow SuperShuttle van with the company logo on the side. Also, you’ll lose all legal protections.
This is what happened to SuperShuttle drivers in 2005. Why would the company do something so wild as making drivers pay for their own vans? Isn’t that somehow illegal?
In fact, the company was using an all-too-common ruse for saving money: It changed from a model of using employees to using so-called independent contractors. And here’s the craziest thing of all: Last week, the National Labor Relations Board issued a decision blessing the whole arrangement, depriving SuperShuttle drivers of the right to form a union.
This growing phenomenon, of companies treating workers as independent contractors instead of employees, has become known by the misleadingly mild term misclassification. With almost no exceptions, our workplace laws cover only employees. Independent contractors don’t have the right to get overtime pay, and they’re not protected against discrimination or harassment. They can’t get unemployment insurance if they’re unemployed, or workers’ compensation if they’re injured on the job. For companies, being released from a bucket of employer obligations saves a bucket of cash: One estimate figures that misclassifying workers as independent contractors saves 30 percent on payroll and other expenses.
Our legal system isn’t blind to this problem. There are statutes defining what it means to be an employee versus an independent contractor, and many court cases have said that sticking an “independent contractor” nametag on a person is not the end of the story. The various laws have slightly different tests to decide if a person’s an employee, but they generally examine a laundry list of factors, like how much control the company has over a worker, whether she’s part of the company’s core business, how much she’s paid, how long her relationship lasts with the company, and her level of independence, among others. (Incredibly, having to buy your own vehicle often turns out to be a double whammy in these tests: Not only do you have to shell out for the wheels just to get the job, but then it’s used against you to decide you’re not an employee because you’ve invested capital in your own business.)
The NLRB’s utterly absurd decision last week, reached by a 3–1 vote along partisan lines, found that SuperShuttle drivers at the Dallas–Fort Worth Airport who were seeking to form a union were not employees. The facts of the case point to the backwardness of the ruling: Drivers were required to buy a specified model of van (costing about $30,000) or lease it from the company. They had to buy insurance from a designated insurer, pay all driving expenses, and pay fees for using the company’s IT system. They weren’t allowed to affiliate with a business competing with SuperShuttle and therefore couldn’t use the vans for any other moneymaking purpose. (No kids want to go to their prom in a SuperShuttle van anyhow.) The company alone set the fares, even requiring drivers to accept coupons and discounts over which they had no say. And SuperShuttle had broad authority to discipline and terminate drivers.
Who could possibly see these drivers as independent entrepreneurs, running their own very small and curiously identical businesses? To use a legal term of art, it’s bananas. Or, as Lauren McFerran, the dissenting board member, wrote, “SuperShuttle’s drivers are not independent in any meaningful way,” later adding that the majority’s decision was “in no way based on a real-world appraisal of working relationships.”
Interestingly, a Supreme Court decision this month also examined the impact of an independent contractor agreement and came out to the right conclusion, but for the wrong reasons. In that case, New Prime Inc. v. Oliveira, the issue was whether a grossly underpaid interstate truck driver, designated an independent contractor, could bring his case in court, or if he had to go to arbitration instead, which historically has heavily disfavored workers.
Surprisingly, the court handed a rare win for workers, concluding that the worker’s agreement was a “contract of employment” because it was a contract for work, and therefore he couldn’t be forced into arbitration, based on a narrow exemption in the federal arbitration law. Disturbingly, though, the court came to this commonsensical conclusion through convoluted originalist logic: Justice Neil Gorsuch looked carefully at various dictionaries from the early 1900s to figure out what lawmakers meant by a “contract of employment” at the time the federal arbitration law was passed. In the end, Dominic Oliveira and his fellow interstate truck drivers will be able to sue in court, but should the question really have hinged on definitions from J. Murray’s New English Dictionary from 1891?
Meanwhile, the Republican members of the National Labor Relations Board have outdone themselves in protecting the interests of business with their own pretzel-twisting reasoning. Companies should not be permitted to distance themselves from any responsibility at all for the people who perform their core work. There simply is no SuperShuttle without the people who drive the shuttle. The business cannot function without these drivers, and the workers are deeply economically dependent on the company.
All over our economy there are workers like these SuperShuttle drivers who deserve the protections of our basic safety-net workplace laws. They deserve to be paid promptly for their work. They deserve overtime when they are away from their families for overly long workweeks. They deserve safe workplaces and unemployment insurance and workers’ compensation. And yes, they deserve a voice on the job and the ability to come together with co-workers to form a union.
What’s the solution? In addition to a better NLRB making better decisions, we need better laws, both at the federal and state level. A few states like California, Massachusetts, and New Jersey determine employee status using something called the ABC test, which creates a default assumption that workers are employees unless the company can satisfy three factors, including that the person must perform work for the company outside of the usual course of the company’s business. Others should adapt these smart standards.
In addition, though, we need a major culture change. This situation calls for public outcry. It should be shameful for a company when these twisted evasions of the basic social contract come to light. We should stand with the SuperShuttle drivers and similar workers. And the leaders of SuperShuttle and its parent company should be publicly shamed for these disgraceful actions.
And we need a new political reality. Our country’s legal treatment of workers flies squarely in the face of movement on the ground over the past several years. From fast food to tech, and most recently air-travel workers during the shutdown, people taking action together have achieved a lot, even sometimes when the law wasn’t on their side. Just ask the teachers in Arizona, Kentucky, Oklahoma, and West Virginia: Without any legal right to strike, they walked out together and got pay raises and more money for public education, giving all of us a hint of what could actually one day be possible.
