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California’s gig labor bill hurts the people it’s trying to protect

(POLITICS) The law has loopholes for industries with good lobbyists, but it’s costing independent contractors, freelancers, and creatives their jobs.

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Uber subverts ab5 bill

So, there’s a new bill in California, Assembly Bill 5, that’s doing immense harm to freelancers across the state and throughout the country. The bill was intended to prevent tech companies from taking advantage of their employees by branding them as freelancers. But the thing took too wild a swing, and a lot of people have gotten hit by it.

We’re going to talk about how and why, but let’s get one thing straight, right off the bat:

We absolutely need something to help workers in this country. When we talk about why AB5 doesn’t work, I want to be very clear that I’m not turning my nose up at the idea of something like it. Rather, it’s this specific law that’s hurting a lot of people.

Let’s take a quick review at the environment that gave rise to Assembly Bill 5:

We live in an incredibly rough economy for most people. The stock market is doing phenomenally! But the stock market isn’t the same thing as the economy. The economy is made of people who are barely getting by, propping up a class of billionaires who are hording an amount of wealth that is increasing at a mind-boggling pace, instead of “trickling down”.

Productivity and wages used to rise together, but they got divorced in the 70s, and productivity’s been doing a lot for herself while wages have just sort of lazed around on the sofa, getting drunk. Productivity has grown 6 times more than pay since 1979. In the last ten years, the costs of education, housing, and medical care have ballooned, while the minimum wage has held steady at $7.25/hour. Not only is this financial climate hard for the average American, it’s going to be hard for a LOT of people, when the purchasing power of the middle class dwindles away to nothing and the bottom drops out of the whole contraption.

And there’s plenty of room for it to keep dropping! Because it turns out that a LOT of tech’s “innovation” just means “circumventing labor laws in ways that nobody’s made illegal yet”. Sometimes the tech world finds cools ways to get money and opportunities to people. Think of crowdfunding, or subscription services like Patreon that let middle-class artists do their thing sustainably.

But often, you instead wind up with companies like Uber, Lyft, and Favor. Rideshare apps view their drivers several different ways. They tell the government that they’re independent contractors. Drivers often claim that they’re running a small business, with the rideshare app’s help. Internally, (and to the SEC) they think of their drivers as the customers. The people who call for rides aren’t the customers—they’re the product that the app delivers to their customer, the driver.

What all of this means is that rideshare companies don’t have to pay minimum wage. They don’t have to offer benefits, like time off or healthcare. If the people who work for you are your customers, instead of your employees, you don’t have to take care of them the same way. (Funny how that works out, right?)
And in some ways, I can see the temptation to do things this way. Insurance is expensive, and it’s kind of wild that we make employers pay for it. Somehow saddling small businesses with that expense is considered the “conservative” option; I’ll never understand how that’s supposed to be good for the market. We’re the wealthiest nation in the world, and yet we’re just about the only country that puts the burden of healthcare on business owners instead of the government.

But here’s the thing: That’s how health care works in this country! It’s what we have. We have a public option, technically. But it’s been systematically gutted to the point of uselessness, intentionally, by people who resent it being passed in the first place. So until we get some kind of national healthcare system, it’s on business owners to make sure that their employees don’t die because they can’t afford medical care. That’s the law, and that’s the ethical thing to do in our current situation.

And tech companies tend not to like that. So we get situations like Uber, where people who are clearly employees are being framed as literally anything else. Because the companies hiring them would rather burn millions trying to render their employees obsolete than spend that money keeping them alive. (Fun side note: Remember when one of those self-driving cars killed a woman because Uber forgot to tell their AI that humans can exist outside of crosswalks?)

And just like I understand why companies would try to dodge those costs (even if it’s clearly wrong), I also understand what AB5 was trying to do. They’re trying to close that loophole. They’re trying to stop companies from BSing about who is an employee and who isn’t. That makes sense.

So the bill defines freelancers with help from a court case, Dynamex Operations West, Inc. v. Superior Court (2018). The main features are

1. Is the worker free from the control and direction of the hiring entity. Is the person who hired them telling them where, how, or when to do the work?
2. Is the work being performed outside of the normal course of business for the hiring entity?
3. Is this work that the worker normally does, independently of this one business relationship? Do they genuinely have their own business in this field? Or is this “freelancing” something they’re just doing for one company?

You can immediately see some huge questions raised here. Among them:

– How strict do you define “telling someone how to do their work?” Because I’ve never had a creative assignment that didn’t come with some sort of deadline, right?
– How do you define “the normal course of business?” The normal course of business for a magazine involves hiring dozens of writers to write hundreds of pieces. Does that stable of writers suddenly get smaller if you can’t afford to give them all benefits?

And we’re already seeing fallout from this. Large multimedia platforms, from Vox to CollegeHumor, are laying off huge swaths of their staffs. Under the new law, writers aren’t allowed to submit more than 35 pieces in a year and still be considered freelancers. That means that these outlets were going to have to either cast a much wider net for their bullpens, or cut their staff and focus on a core group of (presumably grotesquely-overworked) people. Unsurprisingly, they chose the latter pretty universally.

And it’s not just writers. Musicians are getting hit, too. A petition to secure an exemption is nearing 50,000 signatures on change.org. Any creative endeavor other than “a day job with a desk at Disney” is going to involve a network of people floating in and out as projects start and end. There’s a lot of room for exploitation, and there’s a lot of room for quashing that exploitation. But right now, this bill is mostly just putting people out of work.

And just like California’s (much-needed, fantastic) privacy protection laws are having an impact across the country, (because you never know if the data you’re collecting is on a Californian!) so too is their (terrible) freelancing law rippling out. Because work doesn’t happen in offices anymore. It happens everywhere. I recently released a song with musicians from six countries performing on it. That wasn’t even something I was trying to do. That’s just where my friends were!

Now, my piece was just me getting together with some friends to have fun. But professional recordings happen that way, too, all the time. And right now, if the person on either the hiring or performing side of that equation is in California, that relationship is in jeopardy.

And of course, the really fun thing is, that a lot of the industries that were intended as targets of the bill are sidestepping it with court challenges. And many industries lobbied for exemptions, meaning that real estate agents, CPAs, lawyers, surgeons, referral agencies, and lots of others were exempt from the get-go.

So what we’re left with is a law that’s meant to protect people. But many of the people it should’ve protected aren’t covered by it. And many legitimate freelancers are getting screwed out of business relationships that they used to rely on. The big publications that they used as cash cows to pay their bills are either capping them at 35 articles, or letting them go altogether. It’s not hard to see that this is wildly misguided, and that it’s causing more harm than help. We’ve got to pump the brakes on AB5 and try to figure something else out.

Staff Writer, Garrett Steele is your friend. He writes lyrics, critique, and copy for ads, schools, health organizations, and more. He’s also a composer for film and video games, when he’s lucky. (One of his songs is an Xbox achievement!)

Politics

Texas overpaid unemployed residents by millions and now wants it all back

(POLITICS) Thousands of unemployed workers were overpaid in unemployment benefits by the State. Now Texas is asking them to return it all back.

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Texas needs money

46 million Americans have filed for unemployment in 2020 as a result of the current pandemic.

In April 2020, the United States saw its highest unemployment rate, at 14.9 percent, since 1933’s Great Depression. 46 million Americans lost their jobs and were forced to file unemployment claims after closures of workplaces were deemed necessary by government officials in response to Covid-19. Since mid-March, 2.7 million, a staggering 13 percent of its population, filed for unemployment in Texas. In hopes of preventing what would have been a devastating economic crisis, federal representatives created a relief package to aid states in taking care of its citizens. Now, states like Texas are demanding that 46,000 unemployment claimants give back any overpaid money they received.

Yes. You read that right.

Texas overpaid its citizens by $32 Million.

I hate to break it to you Texas, but that sounds like a YOU problem. It’s one thing to demand a refund of money given if the unemployment claimant falsified claim information, it’s another thing to request overpaid money from someone who, now dependent on the government, had no idea they were receiving any extra cash. One could however, argue that between the $600 per week given as a result of the Pandemic Emergency Unemployment Compensation passed under the CARES Act, in addition to regular benefits received, many Americans were and still are receiving well over their normal paycheck. This may be true, but for many others, unemployment benefits do not match their normal paycheck. Even so, stay at home mandates and closures of stores, parks, gyms and schools lead to unplanned spending!

A pack of 50 face masks cost $30 on Amazon compared to the normal $8. School closures obligated parents to stock up on school supplies, have food for lunch in the house, buy art, music and outside activity supplies. As many employers have lost the ability to provide health insurance for unemployed workers, a quick trip to the Emergency room will cost you an arm and a leg.

This is not to say that it doesn’t suck for Texas that they overpaid on benefits, but, it’s also not most of those claimants faults. Chances are, any extra money is long gone and to expect people to come up with money they never knew they would owe back…is rude, quite frankly! Doing so also defeats the purpose of unemployment benefits in the first place, which is to help keep afloat those who lost their jobs through no fault of their own.

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Politics

The White House pushes for $450 per week return to work bonus

(POLITICS) The Trump administration wants people off the unemployment $600 per week, and they want people getting back to work with a $450 per week bonus.

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unemployment

In an update to our previous story on the next piece of proposed stimulus legislation, the White House is looking at options for a return-to-work bonus, making clear their preference for incentivizing reopening the economy rather than extending unemployment benefits for the time being.

CNBC reports that the Trump administration has, according to Larry Kudlow, voiced their disapproval of the proposed extension of the extra $600 per week for families on unemployment, opting instead for a smaller temporary weekly sum for people returning to work.

To recap, the current bonus of $600 per week for those on unemployment is scheduled to expire after July 31st, but the HEROES Act from House Democrats proposed extending it through the end of the year; the notion attracted criticism for several reasons, the most notable of which included waning unemployment numbers and some viewing the idea as an incentive to continue collecting unemployment rather than actually stimulating the economy.

An ancillary proposition to decrease the amount of extra aid per week incrementally as unemployment numbers fall was mentioned, but the Trump administration appears to stand firm on their counterproposal involving the aforementioned return-to-work bonus.

It’s not unreasonable for this administration to want to incentivize those who are reluctant to return to work, especially when unemployment numbers in the last few months have been the highest since the Great Depression; in any event, it seems that, whether or not the HEROES Act passes, folks on unemployment will most likely stop receiving that extra $600 per week at the end of this July.

We recognize that a little over a month isn’t a supremely generous amount of time with which to prepare for a sharp cut in income, and there are only a few things you can actively do to ensure that you’re adequately prepared for the proposed incentive.

Firstly, if you’re furloughed for now, there isn’t much you can do other than wait for your place of occupation to open; however, if you were laid off, actively seeking a job opening in your field–or any field, at this point–will be enough for you to qualify for the bonus.

More importantly, however, is that you start looking at how the lack of funding will impact you in the short-term. Remember, 63 percent of Americans on unemployment were actually making more money with the bonus $600 per week than they were while working, so while the impact of losing that bonus come August won’t be negligible, hopefully unemployment is enough to cover the necessities.

Unfortunately, aside from “go back to work”, there isn’t a whole lot to do besides hurry up and wait. We’ll know more about this round of proposed stimulus activity in the coming weeks.

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Politics

Why DID Gorsuch uphold Title VII for the LGBTQ+ community?

(POLITICS) Conservative SCOTUS justices rely on textualism to hand down landmark ruling in favor of LGBTQ rights in Bostock v. Clayton County

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Title VII LGBT equality

I have to admit that my liberal proclivities were offended when Neil Gorsuch was confirmed to the Supreme Court. But the notoriously conservative Justice has followed his professional training to hand down a clear, concise, and logical landmark decision this week in Bostock v. Clayton County. The 6-3 ruling is a major win for the LGBTQIA++ community. Gorsuch is an unexpected champion of the landmark case as the author or the majority opinion.

The case concerned instances of employment discrimination based on sexual orientation and sex identity. In Bostock v. Clayton County, Gerald Bostock asserted he was fired for expressing interest in a gay softball league. The case called into question whether sexual orientation was a protected classification under Title VII of the Civil Rights Act of 1964.

The Eleventh Circuit – which hears cases for districts in Alabama, Georgia, and Florida – had relied on a precedent that sexual orientation is not protected by Title VII. The Civil Rights Act of 1964 prohibits an employer from discriminating against an employee, “because of such individual’s race, color, religion, sex, or national origin.”

Gorsuch’s opinion relies on “textualism,” which is the interpretation of the law based strictly on the written language of a law. This approach to the justice system does not consider the original intentions of the law’s authors, therefore rendering irrelevant whether or not the authors intended to exclude sexual orientation from the list of protected traits. Based on the language of Title VII, the opinion is clear:

“In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Gorsuch also provides examples to illustrate how discrimination against sexual orientation falls under discrimination based on sex:

“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

A clear example of discrimination on the basis of sex. RBG must be proud.

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