You're only partially correct I as a salaried employee could technically set my own hours but If my employer pinged me at 2am and asked me to do something and I said no I wouldn't have recourse if they fired me. If I'm a contractor I can set those hours in the agreement with the company with legal backing if I then refuse to work during hours I've said I do not wish to work.
But you're debating regulation in general and I'm specifically arguing AB5 is overly restrictive.
Edit: I can clarify as well, it may very well be the case they are employees but this isn't the regulation to do it because it is actively harming workers in multiple industries besides ride sharing.
I’m confused, what does Uber have to do with salaried employees?
This is the workflow.
1. Gig worker applies for Uber in the app.
2. Uber approves the employee as a W2 employee. Their schedule is...whatever they want. They never get scheduled for a shift. They never get “fired” unless they do something that would get them get kicked off the platform just as it works today.
3. When the driver starts the driving mode, they start the clock on their shift. This counts the number of hours for the purposes of healthcare and other benefit requirements. Perhaps if they deny a ride request, the clock stops or considers the previous ride to be the end time.
There is no legal requirement for an employer to fire a W2 employee over being unwilling to work a shift. There’s no legal requirement for a W2 employer to set a predetermined schedule.
Uber would set hours because they would only hire people to work at times when there is demand. You would not be able to "clock in" at will, because there might not be any rides for you to take, and thus no reason for you to get paid.
I wonder if Uber has filed SS-8 to have the IRS evaluate the situation.
They have fixed performance guidelines (star ratings) and fire employees for not picking up jobs (rides). The employee also only works for Uber (not the individual customer, who is anonymous until the job is accepted), who determines the rate and is the ultimate decider if the completed work is accepted (they resolve all customer disputes and are the final say on whether you get paid, not the customer). Uber determines the method of completing work (e.g. how long you have to wait for customers before canceling).
Critically, these “contractors” are integral to Uber’s regular business operations. 100% of Uber’s product relies on its drivers.
On the other hand, they don’t provide equipment or set schedules. Clearly their mode of work blends aspects of W2 and 1099. But also, because these drivers are integral to Uber’s business, it’s possible they’re in violation by not compensating for/providing equipment. Again, the drivers are told who to pick up and where to go, and if they don’t do it while they’re on shift, they get “fired.”
The only factor that comes close to making them a contractor is the lack of schedule, and maybe the fact that they can go work for Lyft too. But every other aspect of the job looks like W2 to me. More checkboxes are on the W2 side of the guidelines.
So, California’s law fills in that logical gap by determining that, in this scenario, the workers are W2 employees.
If the IRS has a problem with the law in California, I assume they might have said something by now, or sued the state?
But you're debating regulation in general and I'm specifically arguing AB5 is overly restrictive.
Edit: I can clarify as well, it may very well be the case they are employees but this isn't the regulation to do it because it is actively harming workers in multiple industries besides ride sharing.