Category Archives: Human capital

The Independent Contractor vs. Employee Issue Gets Kinky

Although some think whether an individual is an independent contractor or an employee is a new legal question brought about by the gig economy digital platforms like Uber, the truth of the matter is the issue has been around for decades. As I say in my new book, Thriving in the Gig Economy  due out in May , when the news of the Uber lawsuit first broke, my former CFO called me from Toronto just to reminisce about old times in the compliance wars.  It was remarkable to us, that so many people and the media for sure seemed to view the Uber situation as a new development.

Of course the employment lawyers in the crowd also appreciate how pervasive this problem has been.  In its recent blog post, Littler chose to honor April Fool's Day by recounting some of the more bizarre employment cases that occurred this year.  http://www.jdsupra.com/legalnews/these-foolish-things-the-oddest-56353/,  My favorite was the case of a strip club in Ohio, where an exotic dancer sued the bar on the grounds that she should have been classified as an employee rather than as an independent contractor.

Credit J.D.S. from Shutterstock.com

There were several considerations arguing for independent contractor status.  Dancers were not paid by The Brass Pole, but rather by its patrons for individuals dances.  Dancers also made their own schedules and provided their own materials/costumes.  The bar offered no training; only experienced dancers were engaged.  Whether they were able to work for other establishments was a bit murky, but there was no explicit prohibition.  The Brass Pole did have a number of rules  the dancers needed to abide by including no chewing gum on stage, never refusing a drink and no boyfriends/spouses in the bar during the performances. http://www.lazzarolawfirm.com/Lester-opinion.pdf These rules were not meant to impose direction or control, but rather to ensure the efficient operation of the establishment.

The definition of an independent contractor, or for that matter, an employee, is never simple.  The Sixth Circuit court in Ohio used what they refer to as an "Economic Realities" test.  The six factor test, as outlined in the legal opinion in the case is based on:  "1) the permanency of the relationship between the parties; 2) the degree of skill required for the rendering of the services; 3) the worker’s investment in equipment or materials for the task; 4) the worker’s opportunity for profit or loss, depending upon his skill; ... 5) the degree of the alleged employer's right to control the manner in which the work is performed[; and] ... [6)] whether the service rendered is an integral part of the alleged employer’s business."

The first five items seemed to indicate that the dancers could be valid independent contractors. The dancers were regular, experienced and supplied their own costumes.  They determined when and how long they performed, which determined their income, and little to no control was exerted over them.  The problem, however, was whether the dancers were an integral part of the business.  Apparently the proprietor did attempt to claim that they were a bar which happened to have exotic dancers, rather than an exotic dancing locale that served drinks.  The judge didn't buy that argument and ordered a summary judgement for the plaintiffs, saying, "“[n]o reasonable juror could conclude that customers primarily came to the club for its other offerings, which included beer, liquor, and frozen burgers from Sam’s Club.”http://www.jdsupra.com/legalnews/these-foolish-things-the-oddest-56353/

At least the Brass Pole case was resolved.  The larger Uber lawsuit still has yet to be fully argued.  I for one am hopeful that it will be put to the test, because it could be this high profile case which finally puts some clarity on this very ambiguous area of the law.

A Merger in the Gig Economy…Or Not

As part of my research for my new book, Thriving in the Gig Economy, which will be coming out next spring, I had the opportunity to interview Stephen DeWitt, the  CEO of WorkMarket. http://www.workmarket.com

Although it sounds banal to say it, Stephen is a visionary about the future of work and how technology will enable on-demand access to skilled workers globally  in a marketplace that many will find hard to _dsc5674imagine or even anticipate.  As I explain in my book, in today's environment, the immediacy of access to resources is highly conditioned by the skill set sought; I want my Uber driver right away, but I may be a bit disconcerted if my interim CFO showed up on my doorstep in 5 minutes.  Our mental models are not quite set at the right speed  now, for the way Stephen sees the future. Stephen sees that CFO, or chemical engineer or strategist arriving seamlessly when a company needs it  thanks to custom talent pools and the algorithms that will continue to evolve and load balance expertise levels.

As he shared with me as well as John Battelle in his great newco piece, A Total Rethink of How Work Should Work  https://shift.newco.co/a-total-rethink-of-how-work-should-work-5dc3980ea52#.76ychzmxi , to imagine the future you need to think of the futures you know.  Think Star Trek, for example, if Captain Kirk is in need of new expertise to make the next voyage, do you think he is just going to list it on LinkedIn?

Which brings me to the point of this post.  A major acquisition was finally approved last week to remarkably little fan fair, especially when compared to the press when the deal was announced. LinkedIn is now officially owned by Microsoft, an organization not known for successfully integrating acquisitions. LinkedIn is of course the largest talent marketplace  in the world, even if it doesn't operate like a digital talent platform. (With apologies, of course, to LinkedIn Profinder, which is trying. )

It has a significant role in the Gig Economy, though, since it is a key element of an independent worker's digital brand. Look at me -- I am posting this on LinkedIn in addition to my own blog as part of my own branding strategy. I even have a section in my book on how to optimize your digital image on LinkedIn. So will this primacy as a venue for independent experts to showcase expertise change in the new Microsoft world?

It is hard to say. An article on this topic by Dina Bass on Bloomberg yesterday https://www.bloomberg.com/news/articles/2016-12-13/how-microsoft-and-linkedin-can-make-this-expensive-deal-work said a key to the deal is to "let LinkedIn be LinkedIn." The public plan is to keep the two companies separate and develop those ever popular "synergies" to enable skilled professionals to be more productive.  As an Apple fan who has always thought apple design far superior to Microsoft and other platforms,  that didn't seem like a natural outcome to me.  (Let's face it the Microsoft stuff never works quite as well on a mac...)

But my bigger concern came from the video conference the day they announced the deal. Microsoft CEO , Satya Nadella, said he wanted to help make the LinkedIn members more successful in their "jobs".  https://www.linkedin.com/pulse/linkedin-microsoft-changing-way-world-works-jeff-weiner In the new world of work, the one that I see and the one Stephen DeWitt sees, it isn't about "jobs" it is about the work and skill sets and managing independent careers. Hopefully the new combined Microsoft and LinkedIn leadership will see that and plan accordingly.

The Entrepreneur’s Organization in San Francisco Turns 25

Entrepeneurs Organisation Celebrates 25 Years!

The Entrepreneur’s Organization, (EO) had a celebration last week to celebrate the start

Veteran Entrepreneurs Organization Reunion

Veteran EO Members at the Palace of the Legion of Honor

of its San Francisco chapter 25 years ago.  I was one of the intrepid founding members of what was then called the Young Entrepreneur;s Organization,  or YEO.

(As an aside, I was 7 months pregnant when I joined EO.  I remember the other  mostly single young members being shocked when they politely asked me if it was my first child, and I replied, “no, it is my third.”)

Back in 1991, you had to have sales of $1mil before you were 35,and you were kicked out of the organization at 40. Many members went on the the Young President’s Organization, (YPO), once they hit their 40s.  As one of my kids once said, who would want to be in the Old Entrepreneur’s Organization?

About 10 years ago, they got rid of the Young in the title and just branded the association as the Entrepreneur’s Organization (EO).  As one of those folks who made the transition to YPO, I have to say that EO was different YPO remains a wonderful organization for me and I am proud to be an active member, but it was not the same as EO.  In YPO, you could have members who were hired guns, presidents recruited to grow, turn around or manage an existing enterprise.  Similarly, there was the “lucky sperm” cohort, of those presidents who stepped in to a family business.

In EO, everyone was a founder.  Everyone had that experience of  having that kernel of an idea in your mind.  You kick it around, you nourish it, and ultimately you get it growing. As a female entrepreneur, I liken it to being pregnant.For awhile when you are pregnant, only you know what is happening inside your body  Chances are, your husband doesn’t even know for a few days anyway .  But slowly it becomes apparent to others.  At some point, i.e. the birth, to continue the metaphor, you let some others into the tent.  Still, you are very careful how it grows.  Over time more people become involved, but you  remain the one most involved with shaping the future of this enterprise.

As the business grows, your entrepreneurial role is akin to  parenting.  Gradually, other people begin to influence the development of the company.  At some point, you realize you are no longer in total control, and then there is the moment when the company is growing in ways that you had never envisioned. Hopefully you imbued it with the right core values to ensure that this maturation is true to your original vision.

EO was a great support while making this journey.  Sharing concerns, opportunities and problems with a like minded group of peers was a tremendous learning experience.  I grew in ways in those years that I did not appreciate at the time. Along with MIT and Inc. Magazine, EO put on the Birthing of Giants Program.  This was an amazing  program for a cohort of 40 young entrepreneurs.  We would spend a week together each spring for 3 years. In the intervening years, many things would happen to the fortunes of these young firms and their founders. Companies, went public and bankrupt, firms were merged, rolled up or sold. And through it all, we learned lessons from each other that would stay with us through the years.

So I was grateful to be able to attend the wonderful 25 year celebration at the Palace of the Legion of Honor last week.  The EO chapter put on a terrific program with 4 different speakers, all of whom were inspiring and provocative. One lesson EO taught me is we can never stop learning, so it was wonderful to continue my education at this event.  Thanks EO.

The Gig Economy Eco System

Employment in the Gig Economy

As the politicians debate the implications of the gig economy, they typically just talk about jobs.  They lament that so many gig workers don't have benefits and are being taken advantage of by those running the powerful digital platforms. As I have said here often, they seldom mention the professional gig economy workers, 91% of whom have self selected this career path.  But perhaps the bigger oversight is that they fail to recognize the jobs that are being created serving the new needs of the gig economy and its workers.

Take a recent press release from ShiftPixy. http://www.shiftpixy.com This app is a way for

From the ShiftPIxy website

From the ShiftPixy website

companies in need of shift workers to recruit contingent gig workers to fill their scheduling gaps. This means that a small business can use this app, rather than trying their luck at all the digital sites. what Kayak did for travel, it is doing for low-end contingent labor.

Employment Laws and the Gig Economy

Moreover, the Shift Pixy guys have paid attention to the employment law issues that have bedeviled some of the large talent platforms like Uber and Handy.  ShiftPixy employs the gig workers on behalf of its clients.  By employing them, it enables them to accrue enough part-time hours from various clients to qualify for benefits typically only accorded to full-time employees.

In case you are wondering, I don't have an investment in Shiftpixy so this is not a commercial.  It is recognition that someone has solved not just one but two key problem with the gig economy. First they just bit the bullet and made the employment call. Since the laws are murky ( another favorite subject of mine) they built an employment infrastructure that is easily accessible via an app that takes the employment risk away from their clients.  "You want a shift worker to bag groceries, great, they would have to be an employee.  Since you don't want them to be your employee, we will handle that. " Most of the digital platforms put the onus on the buyer to figure out the employment law issues, so ShftPixy took that off the table, making it safe for any size company to engage a gig worker. In the spirit of full disclosure I  think that is especially brilliant idea, since I did the same thing 15 years ago, when I started Collabrus, a company designed to employ consultants when they need to be employed by nature of the work or as a risk management strategy.

ShiftPixy is solving another more intractable problem though, by creating a structure that consolidates part-time hours to enable benefits eligibility.  It sounds straightforward, but it is actually a pretty complicated business model.

In the end, Shift Pixy is a small start-up with a little staff, but none the less, they are themselves a job creator.  They have their own employees, but they will also be creating opportunities for various part-time workers to get additional shifts in a way that suits their lifestyle and financial needs.

So as the politicians lament the loss of traditional jobs, I say lets applaud the innovators who are creating the economic infrastructure to strengthen the new world of work.

The Name Game in the Gig Economy

Catalants and the Gig Economy

I love to be right.  A few months back I blogged about my amusing experience applying to join the Hourly Nerd  digital talent platform.  I asked the question, "$22 million in funding and they couldn't come up with a better name?"  This week they announced a new name -- "Catalant".

I have been involved as a client in several corporate naming exercises.  With only good thoughts for my old friends at Landor Associates, I just love the whole explanation about why a certain combination of letters will be a good new name.  Now that owning the URL is paramount, most existing English language words are taken, as are well-known Latin or foreign terms.  (My son who was a Classics major could be a source of some good ancient Greek phrases though...)

So Catalant is a combination of catalyst, talent and brilliant, or so they say.  The name change theoretically ushers in a new future for the well-funded digital talent platform  where they tout the new world where " companies can instantly access the precise talent they need  when they need it." The video is lovely, despite its obvious overstatement.

The world they describe is not that new.  I am fairly sure I had virtually that same verbiage in the marketing  materials of my company, M Squared,  25 years ago.  Similarly, other firms that have been around a while, like The Business Talent Group (BTG) and Cerius Executives are demonstrating how companies are using on demand expertise.  Maybe this model is new for Catalant, but it is not so new for the world.

In an article in BostInno, the founders mention that the original intention was to go after small businesses but now they see that big companies can use them as a source of flexible talent. Their algorithms are key to that value to large companies. Their platform can index all skills and find the right person.  That may be so. For me, it is all about trust.

My former company -  and BTG and Cerius for that matter -  provide  our big company clients more than algorithms; we provide trust and judgement.  If I told a client he really should talk to Harry for a sensitive, strategic project even though Harry may not seem on point, they did it because they trusted me and my understanding of the consultants, the gig and their environment. Perhaps algorithms may get there, but as someone in the Hourly Nerd, excuse me, Catalant network, I have yet to be matched with a project appropriate to my skills. As such, I am still a bit of a skeptic about the perfection of the algorithm.

And by the way, I learned from the Bostinno article, Hourly Nerd isn't going away entirely.  It will be the product offering to the small business marketplace So big companies get brilliant talent and little companies get nerds...go figure...

Wrestling the independent contractor problem

Independent Contractors and Entertainment Law

This week  World Wrestling Entertainment (WWE) was sued on behalf of dozens for former wrestlers who claim the company hid the adverse neurological effects of repeated poundings received in the wrestling ring. This misrepresentation and concealment of the potential injuries faced was compounded by the fact that the wrestlers are not employees, but independent contractors  who are not covered by insurance .images

In the spirit of full disclosure, I must first say I have never understood why wrestling is considered a sport. ( Similarly I never understood why boxing is  in the Olympics either. )

The truth of the matter is  WWE is not a sport, but rather  entertainment. They are not legitimate contests, but rather scripted promotions, with specially choreographed moves designed to titillate the  audience.   These intentional moves are part of the reason the plaintiffs are seeking to be seen as employees; they were required to do these moves , hence WWE exerted direction and control, ergo there is an employment relationship. 

Of course, it is not that simple.  This claim has been made several times over the years , yet the issue has never been resolved.  The claims were not dismissed, but settled which means the body of law governing the relationship has never been addressed. In other words, WWE has successfully avoided the legal determination of  the employment status of the wrestlers.

As a rational and fairly non violent person, it is hard for me to believe that any entertainer engaged in body slamming and head bashing moves would be unaware of the inherent physical and neurological risks involved.  Given the litigious nature of America, entertainment and sports, it is also hard to believe that the contracts committing the talent were silent on this subject. None the less, it does appear this suit could have merit.

In response to an earlier lawsuit in 2007, the WWE replied that its talent were independent contractors because they could negotiate their own contracts aimages-1nd had no corporate duties.   They were much like the talent on soap operas, the company argued. However, the argument is specious on several counts.  First, employees can also negotiate their agreements, so that is not a differentiation.  Second, they have duties in terms of dress code and appearance requirements.  And although a comparison could be made to soap opera talent, that  talent is unionized.  Jess Ventura tried and failed to unionize the WWE talent, but perhaps that is another option.

Various legal experts have chimed in on the independent contractor issue. Since independent contractor is an undefined term in the law, it is typically governed by the IRS 20 points.  These 20 conditions need not all be true to make one an independent contractor, which adds to the ambiguity.  According to a recent University of Louisville Law Review study, the  consensus seems to be that WWE wrestlers meet the employee criteria in 16 of the 20 points. Most legal experts seem to see it the plaintiffs way.

Many of the wrestling cognoscenti have lamented the fact that few wrestlers wanted to challenge their employment status in the courts.  Well that day has now come.  I can’t help but wonder if all the focus on uber drivers and independent contractor status didn’t prompt some additional discussions. WWE says the suit will be quickly dismissed.  I am interested to wait and see.

 

Hollywood and the Future of Work

Stephen Kasriel the CEO of Upwork just wrote an article in Fast Company called "Why the Future of Work will Look a lot like Hollywood."   I agree wholeheartedly and in fact wrote a similar piece years ago on the movie model. I pointed out that It is no surprise, that  in the business analog, the first players  to become independent were the stars,  just like in the movie model. Back in 1988  ( before the internet...ouch!) it took me no time to build up a strong network of consultants numbering in the 1000s.  Independent expertise of the most credentialed sort  has been around for decades, well before the advent of what people typically think of as the gig economy,  i.e. the uber drivers or free-lance workers on the  Upwork platform. It's the stars, the highly accomplished independent consultants and interim managers,  who wanted to to take control of their careers and make choices about how they would use their talents.

 

But there are two salient  but potentially related differences  between the movie world and the high end of the gig economy.  The first is that no one seems to take issue with the movie model.  The fact that talents of all sorts, from cinematographers to actors to musicians, come together for a one year gig  to make a movie and then disband is not derided as a dangerous model. This gig economy is accepted for what it is - the best way to complete a large scale cinematic project. However the other key difference is the fact that  Hollywood is a land of unions. The  writers, composers, actors and directors are all in a union or guild.  Additionally, the agents who represent them are also union members.  Is it this labor affiliation that spares the movie model from criticism?

Just today, the AFL CIO declared that gig workers should be employees.  They implied but did not suggest outright that therefore they should be union employees.

I can't speak to the low level roles in the gig economy, but I can speak to those who represent the most skilled, the consultants who have gone independent by choice.  One once told me she never wanted to be an employee ever again.  I will extrapolate that she wouldn't want a union card either...

 

A Gig Economy Downside No one Mentions

I saw a blog post today from DCR Workforce announcing that there will finally be a "reckoning " of the gig economy.  http://blog.dcrworkforce.com/finally-official-reckoning-gig-economy Like most people who question the value of the gig economy, the author's concerns were about the  lack of a safety net for the workers.  There was also apparent relief that perhaps, in this reckoning, we would also "weed out cases where employees are being misclassified as independent contractors by businesses."  

I too think it would be valuable to have such an accounting  for what is becoming an ever-growing proportion of the labor force.   I too recognize that may of these workers are not doing gigs by choice but out of necessity.

That said,though, so many pundits and economists often overlook the fact that for so many the further maturation of this marketplace is not pernicious but empowering.  Many professionals have self selected into this gig economy labor force, because they can; they have the expertise that will command a market rate that will support their lifestyle.  And now, with the increasing sophistication of search algorithms, the ability to parlay that expertise to the market place is so much  more efficient.

It is not a free market, though, because legal obstacles especially in employment law around independent contractors and employees frustrate the free flow of talent. Yes, some players may inappropriately classify workers, but the flip side is true as well. Many companies are so worried about the employee independent contractor issue, that they refuse to engage anyone who is paid on a 1099, the tax form used to report non wage income.  It is not illegal to work on a 1099 basis, yet many consultants have been forced to change the way they do business to deal with this heightened risk profile. I should know, in 1992, I started a firm, Collabrus,  to employ consultants  for the duration of a consulting project, if  the nature of the work or a risk averse client required it. Similarly, many senior level consultants are forced to work through master vendor arrangements, where they become the employee of someone in order to complete a consulting project.

So the downside that many never seem to mention, for what is albeit the upper end of the gig economy labor pool,  are the marketplace inefficiencies  that institutionalize risk and increase costs to practitioners  who are forced to operate differently with  different clients.

So my question is this --  when the reckoning of the gig economy is done, will they also identify those workers who were misclassified as a temporary employee, when they could have operated as a 1099?  It seems only fair.

The Freelance Marketplace Platform Race

Now that I have embarked on my research for the next book on the high-end of the on demand expertise marketplace, I am having a lot of deja vu moments.  Certainly, there is the fact, that though I have been gone from my old firm for several years, things have not changed that much. Tremendous, credentialed  expertise of just about any type is available on demand. Companies continue to avail themselves of this resource in new ways, and new competitors continue to arrive touting different points of differentiation.

It is this last area where the deja vu comes in, because the new platform competitors appear to be cropping up everywhere.  My twitter feed is cluttered with entreaties from one firm to beta test a new platform that "won't suck." (I couldn't help but wonder if they shouldn't get a free

ipo-flops3-1

The Pets.com sock puppet

lance copy writer to come up with a better ask...) Quite frankly, I am reminded a bit of the frothy days of the internet when pets .com  became the 4th ( yes 4th) online pet supply store.  Despite the fact that dog food is not a high value shipping product, the firm had an amazing IPO valuing it at close to $100 million  in 2000 and was out of business 9 months later.

 

I am not suggesting that the online freelance marketplaces are headed for the same fate.  Indeed, I think technology is creating the platform to enable a market to be made in talent, in the true economic sense of the word market. I look forward to better understanding these business models to see how differentiated they really are.  Certainly, some are defined by the type of talent they seek to attract; the sites working with copy writer won't appeal to CFO's, but dancers will do... Interestingly, one in the UK, combines a totally automated service with consultant mixers, so freelancers can gather together.   I can't help but wonder if freelancers will subscribe to all that operate in their area of expertise, or if they will  choose just one.  If it were me, I'd definitely go for the one with the mixers...I am a sucker for cocktails...

 

 

The “Gig Economy” and the employment data problem

A recent news item little noticed apart from gig economy wonks like me was the fact that  the government is planning to get data on how many workers actually populate the "gig economy."  Labor Secretary, Thomas Perez, announced at the end of January that the department would team up with the Census Bureau and  restore the Contingent Worker's Supplement  as part of the May 2017 Current Population Survey.

It is being restored because in 2005, in the infinite wisdom of governmental agencies, the decision was made to discontinue data collection in this area. The Supplement had only been published 5 times and in fairness, it had its share of critics.  A major failing, was the fact that  it aggregated all contingent work arrangements, from  senior management consultants to security guards to cab drivers.  As such, drawing conclusions about income trends, potential wage and hour infractions or economic security was difficult.  Similarly, no attempt was made to try reconcile the differences between the self employed - a broad category which  consultants, architects and dry cleaners - and 1099 tax filers.

Now that the gig economy appears to be fundamentally redesigning work and income structures in the US economy, the Labor Department  wants to try to get a handle on the phenomenon in large part to better inform policy decisions. They do acknowledge that it will be difficult, since just the definition of what qualifies as contingent work is controversial. Additionally, one would hope that they will make strides to refine the data to be able to draw more meaningful conclusions.    That said, we should not get too excited, since this  there won't be data until early 2018 at best.

What is ironic to me, as someone who has been involved in the  high-end of the contingent work force for nearly 30 years,especially now in this political season is the constant emphasis on jobs creation as a metric of economic success.  When you consider 53 million people, according to The Solo Project, have chosen to define  themselves as  independent consultants , free agents or free lancers, the magnitude of the data problem becomes apparent.  These people do not want traditional jobs. What labor statistics are capturing this? Lets hope Perez can fix the data problems inherent in the Contingent Workforce Supplement, because the world of work is being redefined quickly and the government needs to catch up.

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