The key is that gig companies will have this protection from misclassification claims so long as they
- Avoid unilaterally prescribing specific hours during which drivers should be logged into the digital network;
- Permit drivers to work for other ride-sharing services and engage in any other occupation or business they desire; and
- Agree in writing that the driver is an independent contractor.
Two of the three of these requirements echo the factors that led the 2nd Circuit Court of Appeals to rule in favor of independent contractor status just two weeks ago in the Saleem v. Corporate Transportation Group, Ltd. Case, where the court was swayed by the fact that:
- The workers had “entrepreneurial opportunities” not available to employees, including the ability to work for direct competitors;
- The workers had to make “a heavy investment” in their business through the purchase of something above negligible items; and
- The companies provided the workers with “a high level of flexibility” in their schedules, namely their ability to accept or reject work, their driving locations, etc.
These are two different situations, of course. One is a state law that only applies to ride-sharing drivers, and the other is a federal case that only holds sway over New York, Connecticut, and Vermont and was labeled by the court itself as “narrow” in scope and applicable only to the specific situation at hand. However, it seems like there is some momentum behind these concepts. Gig businesses across the country should take heed of these standards and incorporate as many as possible into their working arrangements while waiting for the Florida law to expand to other states and the 2nd Circuit decision to be followed by other courts.