Twenty-one years ago, Fortune boldly declared “The End of the JOB.” Thanks to rapid advances in technology, people had been freed from the tyranny of the nine-to-five workplace. Now they could set their own hours and schedules, do without constant oversight and supervision, and concentrate on a more powerful objective: not just “doing their jobs,” but finding better and more innovative ways of “doing what needs to be done.”
In today’s world, Uber Technologies Inc. stands as a perfect example of a “post-job” success story. It is now serving millions of hugely satisfied customers and providing part-time or full-time work for 200,000 active drivers in 311 cities around the world. Its app-based method of connecting users and providers of taxi service is the feather that has knocked a whole industry on its ear—an industry that had been doing the same things in the same way for three-quarters of a century.
One can also cite the sprouting of dozens of major franchise operations like Two Men and a Truck that have combined to provide millions of new jobs through thousands of small business startups over the past two decades. Like Uber, they have discovered work that clearly needed to be done—once people hit upon the right way of doing it.
But none of that cuts any ice with the Obama administration and its appointed chieftains at the Department of Labor and the National Labor Relations Board. Far from applauding greater freedom and creativity in the workplace, they want to restore the old-fashioned job to something like its former prominence, but with a raft of new government-imposed rules and regulations. By limiting the growth of independent contracting and other means of farming out work to individuals or small businesses, the Labor Department wants to herd as many workers as possible back into the corral of corporate employment—with Big Brother there to watch out for their best interests.
Former college professor David Weil, the Labor Department’s top wage-law enforcer, explains the broad thinking behind such policies in his book The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It, published last year. Weil blames decades of outsourcing or subcontracting for deteriorating conditions in the workplace. He argues that big companies have tried to have it both ways—on one hand, making harsh or impossible demands on subcontractors; on the other, taking no responsibility for the plight of workers. The solution that follows from Weil’s analysis is to force big employers to bring many jobs back in-house—and then subject them to farther-reaching and more stringent rules and regulations.
But if the analysis is faulty, the solution is no good. Why should we suppose that it is so easy for companies to mistreat or abuse subcontractors, or be motivated to do so? Should we always assume the worst of capitalist enterprise?
In public statements, Weil has complained of “jaw-dropping” violations of standard labor laws and accused employers of “finessing” job descriptions and duties in order to miscategorize workers who remained under their supervision as independent contractors rather than employees. He claims this practice has caused many dispossessed workers to incur expenses related to their jobs while losing access to overtime pay, vacation pay, and other benefits.
While waiting for Labor Department lawyers to bring forth the proof behind such accusations, you can expect to witness a good deal of hair-splitting over the legal definition of an employee. On July 15, Weil released a 15-page memo that was supposed to “clarify” the Labor Department’s stance regarding “employees who are misclassified as independent contractors.” The memo concluded that the “ultimate determination” would turn on “whether the worker is really in business for himself or herself (and thus an independent contractor) or is economically dependent on the [putative] employer (and thus an employee).”
But that surely is a false dichotomy. For example, does an Uber driver automatically become an Uber employee because he chooses to drive 40 or more hours a week and gets most or all of his income from the company? Or does he remain an independent contractor
(1) because he picks where and when he works, (2) because he (like other Uber drivers) is free at any time to accept work from Lyft, its chief competitor, and (3) because he has no wish to be an employee?