the law of the changing landscape

Our JILLS have great things to say and we're so happy to share it! 

In this post, Paloma Kenney, JILLS Member and Attorney and Principal at Kenney Law LLC discusses the explosion of the Freelance Economy and the legal and legislative conundrum this future of work is having in the U.S.  

"Legislative Changes to Transform the Corporate Gig Economy Leaving Some Workers Out in the Cold"

In May of 2017, an estimated 85% of workers had at least one side job, and, among them, 54% worked two. (1) A trend that's likely to continue; LinkedIn predicts that, by 2020, 43% of the U.S. workforce will be freelancers enabled in part by technology. (3) The desire to increase earnings or gain unique work experience helps drive the gig economy; and, for many young people, it's often a way to make ends meet. (4)

The sudden explosion of the "side hustle" has, in some ways, made the gig economy the wild west of flexible employment. States lack dedicated laws to help govern and protect freelance workers many of whom lack benefits and health insurance. In response, many workers' groups are beginning to lobby for new tax legislation. (5) Earlier this year Washington introduced a bill that would require employers to pay into a benefit fund for independent contractors. Similarly, New York is beginning to introduce a ride-transaction fee for the same purpose. 

This new tax may be beneficial for gig workers "employed" by large umbrella corporations, such as Uber and Airbnb, who can afford to pay the tax and would be required by law to contribute to the fund; however, for those out on their own, there's only more uncertainty.

Will solo gig workers have the option or be forced to pay the tax/fee like a corporation in order to gain access to the larger benefit pool? Or will solo gig workers fall outside the tax/fee requirements leaving them to continue to fend for themselves as self-employed?  

Even if legislation is successfully passed, the new tax/fee may cause a widespread shift among those corporations already dipping their toe into the gig economy. Corporations may decrease their use of gig workers in an effort to avoid paying a tax similar to worker's compensation for a group of transient and often rotational workers. 

For example, if a corporation often hires giggers to write blog posts or modify their graphics, would that corporation simply begin to look internally for talented employees interested in garnering company-wide recognition for such a unique and visible project? 

One of the largest legal issues pertaining to the gig economy is worker classification. Dan Eaton from the San Diego Tribune argues that regardless of whether legislative changes are made on a state or federal level (a separate topic up for debate) lawmakers should resist making a classification that falls between employee and independent contractor. (6) He believes this change could cause a cascade of legal claims since workers already litigate for employee re-classification. Unfortunately, re-classification may be the only way a line can be drawn for tax or fee purposes.

The inability to classify solopreneurs, giggers, and freelancers has implications beyond employment taxes or benefit fund fees. For instance, reporting employment history and making sense of wages is key when filing for unemployment, renting apartments, purchasing a home, and applying for loans and credit cards. While Eaton may have good reason to warn against a third classification, it may be a necessary evil to help alleviate the uncertainty and inability that gig workers have in legitimizing their work for important applications and governmental purposes. 

Brian Chesky, Airbnb CEO and co-founder, hopes that the company will one day have created millions of new entrepreneurs worldwide. While the gig economy may at times appear to be a disorganized conglomerate of individuals all seeking to provide a unique, on-demand service, it's thoughts like Chesky's that may eventually transform the traditional definition of entrepreneur. For many, entrepreneur still connotes an individual that raises money, headquarters in a physical location, and helps create jobs for the local economy.

Chesky's vision, along with the millions of individuals inventing their own positions, expands this definition to include those who have never sought funding, but rather built their business from savings or pure sweat equity. It includes individuals who will never have a brick and mortar location beyond their home office and those who will never hire additional employees. One day soon the majority of workers will have a string of roles, proficiencies, and skills that follow their name in place of the traditional one-profession title. For most states, the law cannot evolve quick enough to resolve the complexity of fluid, non-standard employment sweeping the nation.

Reposted with permission by Paloma Kenney. Original link found here.