CONTENTS Designated academic journal: “Redefining ‘employee’ in the gig economy: Shielding workers from the Uber model” 1. OVERALL VIEW OF THE JOURNAL 2. MAIN ARGUMENTS OF AUTHOR 3. ANALYZE 4. IMPLICATIONS OF THE ARTICLE 5. ABOUT WHAT WE LEARNED 1. OVERALL VIEW OF THE JOURNAL In the gig economy, workers are not treated as traditional employees. Traditional employees are guaranteed minimum wage and safe working conditions by law. However, workers in gig economy can’t be protected by law. Just through that explain above, you could think that ‘Gig is a trash’. But even that, Gig has some advantages. Someone who has a main job could make some money with extra time and workers could increase work flexibility because they regulate their own working time. In the view of company, it could efficiently finish a project with workers who are hired provisionally. But in the Gig economy, there should not be exist a misfortune that companies do not concede workers who work enough to be treated as traditional employees just to cut costs and avoid liability. You may be unfamiliar with notion of Gig economy. However, there is already grievance with Gig economy in Korea. Recently, workers of a large delivery company did strike. Reasons that they did it are various. In short, they who made contract with company as independent contractor wanted to be treated as employees of the company. Now, the strike ended but what they wanted is not concluded. As that, our society is not ready to embrace Gig economy. In America, there was a trial whether running a gas station is working as an employee of the company or making a contract with company. Likewise, about Uber’s drivers. Though the court’s decision about that was different at each state. This academic journal suggest how we deal with Gig economy with specific conditions. And it warns us if we cannot establish societal agreement that of relationship of employer and employee, of company and independent contractor, we will spoil law which was made to protect workers. Gig economy is worldwide trend, so we, in Korea, soon encounter it. Especially, irregular worker is sensitive problem in Korea. Despite some advantages of Gig, many people would take it as not very good thing. But, in Korea, after covid-19, delivery system has been developing. With that, many offices workers are participating in delivery when they get off work. And companies in the industry and workers advertise how much they earn and about work flexibility. So, it may soon appear discussion to enhance their working condition. 2. MAIN ARGUMENTS OF AUTHOR It said we need to have an alternative test for independent contractor in gig economy instead traditional test which has a limitation to put them. Because of changing the shape of economy, it is hard to exactly define the worker base on traditional employment test. That is why it is necessary to taken in a new test way. So, as a solution it proposes five factor tests to solve this kind of restriction. We must consider the extent of control the company may exercise, the employee’s relying on proceeds, the company’s relying on the workers, the company’s operation in an industry that utilizes employees or independent contractors and the presence of a contract of adhesion with unsophisticated party. The author says that employees are protected by the law in many ways, but independent contractors aren't. However, there are struggles to distinguish between the two. This is because courts apply and weigh the current test's factors differently, which only adds confusion. In the gig economy, these discords have much increased. The paper is mentioning Uber as an example, showing conflicting positions on drivers. The position indicating that Uber and the drivers share an independent contractor relationship says the company doesn't control over many parts of work, such as time, cars, or uniforms. On the other hand, the position indicating that they share an employer-employee relationship says there are several requirements for drivers, which can be seen as control. Therefore, to determine accurately whether an individual is an employee or independent contractor, it is essential to carry out a new test. In this note, a new test for courts is proposed. The first factor is whether the company exercises significant control over the details of the work. To explain with Uber, the company gives access only to drivers who complete an onboarding process. Moreover, it regulates and monitors them, so we can say they form an employer-employee relationship. Whether the worker is relying on the proceeds of the work as a primary or sole source of income is the second factor. As some drivers don't have alternative source of income, they would be called employees of Uber. The third factor is whether the company relies on the workers, collectively, as a significant, consistent revenue generator. If it were not for drivers, Uber would lose its major source of revenue. In this case, they cannot be seen as independent contractors. Whether the employer is operating in an industry that traditionally utilizes employees or independent contractors is the fourth factor. This involves companies' endeavors to reduce costs, asserting themselves as platform companies. The last factor is whether the arrangement is defined by a contract of adhesion with an unsophisticated party. Mentioning the same example as above, drivers in Uber must agree when revising the contract. Additionally, the author is suggesting a legislative solution. It is because courts are hesitant about carrying out the new test, so the legislature should provide an adequate solution to protect employees, especially in the gig economy. There are more important roles for companies that just taking company profit. Such as minimum wage, safe working conditions, and welfare, employees have the right to be protected. For this, jurisdictions should feel the need to adopt the new test. 3. ANALYZE The topic of this paper is to distinguish whether drivers of Uber's taxi platform development company are employees or individual contractors and discuss the gig economy. To suggest this, this paper uses the evidence that various precedents based on the difference in definition between employees and individual contractors listed in the U.S. Code. First, through oil station case, the author gives an example of companies which examined similar facts and circumstances, came to opposite conclusions. Humble oil and Sun oil had a similar legal problem, whether an individual is and independent contractor or employee. In Humble oil case, the court pointed that the employer exerted considerable control over its gas station attendant, so the court judged that the attendant was an employee. However, in Sun oil case, Hoover court held that there was no employer-employee relationship because the court emphasized the property owner’s control over the work and the property owner did not have a significant control. Second, the author compares with California and Florida state courts’ judgments on Uber employment issues. Florida courts agreed with the arguments that Uber’s drivers were not employees for the purpose of reemployment assistance; drivers were engaging in no direct supervision, the lack of any extra benefits from Uber to the drivers and concluded that the drivers were not employees of the company. On the other hand, California courts focused more on the fact that drivers provided services to the company and the court could not conclude that the drivers were Uber’s independent contractors. At last, the author mentions a city that adopted a new test: Seattle. Seattle is one city that has taken legislative action by passing an ordinance that permits for-hire drivers to collectively bargain with the companies “that hire, contract with, and partner with them.” 4. IMPLICATIONS OF THE ARTICLE “Gig Economy” which refers to an economy in which companies tend to hire people as contract workers or temporary workers as needed rather than regular workers are spreading all around the world nowadays. As we can see in this academic journal, opposite to gig economy, traditional existing labor market was in the form of companies signing formal contracts with employees and providing products and services to customers using hired employees. The opinions are divided on how the spread of the gig economy will affect society as a whole. The biggest advantage of the gig economy is that workers can work as much as they want at the time they want, which is receiving positive reviews in that full-time housewives and retirees can re-enter the labor market. On the other hand, there is a problem that it is difficult to receive social and institutional guarantees, such as a decrease in the proportion of regular workers and workers working in the gig economy cannot receive the minimum wage or health insurance benefits. In the existing Restatement Test, courts in each state have conflicting precedents about employer-employee relationship even in the same situation and environment. This is because the criteria for judgment are ambiguous and focused on the old economy. In particular, in the gig economy, companies tend to increase the proportion of contract workers to reduce costs and ease employment responsibilities. So, Restatement Test is even more limited to clarify their relationship in the modern economy. In Uber, an example in this article, drivers act as employees, but the company argues that the drivers are contract workers to purse their interests. Therefore, a New Test must be prepared to prevent this situation and protect workers especially contract workers beyond the limits of existing tests. The new test consists of five components: Whether a company exerts considerable control over the details of the work. Whether a worker relies on profits as the main or the only source of income. Whether a company completely relies on workers to generate profits. Whether the employer is originally engaged in the business of hiring employees or contract workers. Whether an agreement has been defined by a contractor and an adhesion contract. (Whether there is a difference in actual labor with the contents of the contract between a company and a worker.) There are frequent cases in the gig economy in which Uber and many other companies, especially platform companies, treat workers who act as employees as contract workers to reduce their costs and employment-related debt. If workers work as independent contractors, they will not be protected by law in many ways. In this paper, in order to prevent this problem, a new paradigm is proposed to clarify the relationship between employers and employees and suggest solutions that can accurately judge employees and contract workers. It also calls for improved treatment and legal protection for contract workers who perform labor equivalent to employees. In real life, it is argued that Uber drivers should be recognized as employees in the UK. In order to do so, as stated in this article, it is noted that the actual labor status should be examined rather than the contents specified in the contract. It corresponds to No. 5 of the New Test method referred in this article. This new test actually involves the method used in each country to determine whether a worker is an employee or not. Therefore, the writer's argument that the New Test should be adopted by the court is valid. This paper can be helpful for workers when writing labor contracts with companies. In addition, if there is a contractual problem between a company and a worker, it can be a good reference material for workers who lack expertise in revising contracts and litigation. In this respect, this paper is important and valuable. If this new employment test method is adopted by courts and applied to companies to clarify the employer-employee relationship, companies may have some burdens, such as an increase in employment costs and employment liability obligations from a short-term perspective. However, as shown in this paper, consumers do not only want cheap services. They argue that they are willing to pay more for proper treatment of workers such as wage and employment environment. Therefore, if companies conscientiously and honestly clarify the employee-employer relationship, improve workers' treatment, and protect them, they can give consumers faith and instill a good corporate image in the long-term perspective. Furthermore, it can be a good example of leading the right corporate culture. Therefore, it can be recommended as a good solution to improve and mitigate the adverse effects of the gig economy on modern employees by adopting and applying New Test written in the article. It can also be a good criterion for what actions companies should take against workers. We believe that this will not only help alleviate conflicts between companies and workers, but also allow workers to receive sufficient legal protection through the conversion of contract workers to employees who work equivalent to employees. 5. ABOUT WHAT WE LEARNED Hwang Jeongeun - Through reading this journal, I realized again the change of economy especially in social of labor. And I also understand that why we need a different solution which is proper in now working condition. Fortunately, many people try to make their voice for protecting worker’s right and live. I think this is important and necessary for both of worker and company’s good society. Gu Minwoo - In an era where corporate social responsibility is becoming the standard for corporate valuation as a non-financial factor, labor and management problems adversely affect not only employees but also corporate growth. Therefore, legislative solutions should be considered to protect not only workers but also corporate and shareholders. Lim Chaelin - As the introduction and spread of the gig economy accelerates, creating new jobs would be clearly a favorable function. However, there are serious problems increasing labor-management problems, such as low wage unstable labor. Accordingly, it is necessary to actively prepare and seek development measures. In addition to the new test mentioned in the paper, practical systems should be in place to minimize side effects and properly guarantee both the company and labor rights. Han Yijung - In the gig economy, the direction companies are currently pursuing, such as hiring more contract workers than employees, can benefit companies in the short term. However, today’s criteria for judging a company are not limited to its merchantability and sales. Recently, consumers have begun to pay attention to the working conditions of workers. Therefore, it is urgent to adopt new methods and legal measures to protect them sufficiently. If the company takes five new tests in this article to clarify the employeremployee relationship and treat workers well, in the long run, it will not only instill a good image of the company but also increase their profits. It will also have a good influence on other companies so that they can lead the corporate culture. Kim Soochang - As technology advances and numerous jobs are created, the type of economy is also changing. Thus it was interesting to read a paper on the gig economy, one of them. The gig economy, of course, increased market efficiency and found that was made by someone's needs but there were many things that needed to be improved. I also realized that efficiency is not the only thing important in the economy. The treatment and situation of workers are as important as efficiency. Ryu Kangheun - The world we live in is constantly changing and moving in unpredictable directions. It is no exaggeration to say that the ‘Gig Economy’ has also become active in the process of bringing many changes to work life due to the COVID-19 pandemic. The gig economy is characterized by a kind of sharing economy in which companies hire temporary workers rather than regular workers, which has many advantages but also causes various problems related to workers. Nevertheless, efforts such as devising legal alternatives are being made to solve this problem. As such, I realized that the world would continue to derive new forms of economy in the future and that we will have to make efforts to solve the problems that arise in keeping with it. Won Taeyeon – It is important for society to ready a rule that is understood by the majorities of people. However, it is also important for us to ready for being a person who is needed by Gig economy. World changes relentlessly, and we are part of World.
