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Distributed work presentation 5.10.10 slideshare

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Delivered at Crowdflower Distributed Work Meetup, San Francisco CA 5/10/10.

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Distributed work presentation 5.10.10 slideshare

  1. 1. Regulating Distributed Work<br />Alek Felstiner<br />5/10/10<br />
  2. 2. Problem: Old, Stale Law <br />Physical workplace<br />Long-term, stable employment<br />One to many<br />Contractors vs. Employees<br />
  3. 3. Looming Problems<br />Jurisdiction<br /> Location of Parties<br /> Location of Work<br />
  4. 4. Jurisdiction Hypo<br />AMT<br />Worker<br />Firm<br />Crowdflower<br />
  5. 5. Looming Problems <br />Jurisdiction<br />Employment Status<br />
  6. 6. Employment Status<br />Terms of Use<br />Terms of Use<br />?<br />
  7. 7. Terms of Use (excerpts)<br />As a Provideryou are performing Services for a Requester in your personal capacity as an independent contractor and not as an employee of the Requester. (AMT)<br />Each user acknowledges and agrees that this Agreement does not constitute an employment agreement or create or acknowledge an employment relationship (neither with LiveOps nor with any other User.) (LiveWork)<br />Each User acknowledges and agrees that the relationship between Users is that ofindependent contractors. (Freelancer)<br />Employer and Freelancer each acknowledges and agrees that their relationship is that of independent contractors. (Guru)<br />Provider's relationship with Buyer will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. (oDesk)<br />Providers acknowledge that they are not employees of OnForce and will not indicate to any third party (Buyer, Provider, unemployment agency, etc.) that they are an employee of OnForce. Providers are completely independent contractors. (OnForce)<br />
  8. 8. Independent Contractors<br /> Not covered under the FLSA, NLRA, etc.<br /> Not covered under most state laws<br /> Etc.<br />
  9. 9. Labels Aren’t Everything<br />“Where the work done, in its essence,followsthe usual path of an employee, puttingon an ‘independent contractor’ label does nottake the worker from the protection of the [law].”<br /> Rutherford Food Corp. v. McComb<br />331 U.S. 722, 729 (1947).<br />Justice Stanley Reed<br />
  10. 10. FLSA Test: “Economic Realities” <br />1) The extent to which the services rendered are an integral part of the principal’s business.<br />2) The permanency of the relationship.<br />3) The amount of the alleged contractor’s investment in facilities and equipment.<br />4. The nature and degree of control by the principal.<br />5) The alleged contractor’s opportunities for profit and loss.<br />6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.<br />7) The degree of independent business organization and operation.<br />
  11. 11. Looming Problems<br />Jurisdiction<br />Employment Status<br />Group Rights<br /> Defining Community & Property<br /> Protected activity<br />
  12. 12. Potential Regulatory Responses <br />Direct Incorporation<br />“Employee” Presumption<br />Agency Rulemaking<br />Regulate Vendors<br />
  13. 13. The End.<br />

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