As new platform companies like Uber and Lyft have people talking about the nature of work in the gig economy, the concept of employment has become more difficult to define. Recent research has shown that the number of workers who aren’t technically employees has increased significantly in recent decades. While this might not seem like a bad thing on its face, employment status has traditionally been tied to important protections and benefits, which may be eroding as these shifts affect a growing group of workers. While new tech companies get most of the attention as we debate the changing nature of work, it’s also important to realize that they are only playing a small part in larger trends. Read on to see how employment is changing, who is affected, and what that means for workers.

How Many People Are We Talking About?

While platform companies like Uber have gotten most of the attention lately, particularly in the context of labor disputes, it’s important to look at the scope of employment trends and the role that technology companies, and many others, currently play. Unfortunately, there isn’t a lot of available data on the growth of individuals with what are called “alternative work arrangements”–temporary workers, on-call workers, freelancers, contract workers, and independent contractors. What’s notable about these work arrangements is that they differ from traditional employment status, as they are typically less stable and include fewer protections and benefits.

The Bureau of Labor Statistics hasn’t conducted its Contingent Worker Survey (CWS) since 2005, which is where we would traditionally look to for a better understanding of how many Americans have non-traditional employment situations. However, economists Alan Krueger and Lawrence Katz sought to make up for the gap in data by partnering with the Rand Corporation to conducting a survey of their own, which could be compared with past versions of the CWS to see how things have changed.

Krueger and Katz designed their survey to mirror the CWS so that they could accurately track how the share of workers with these alternative work arrangements has changed over time. In their research, they find a significant growth in the number of these workers from 2005 to 2015 in terms of their share of the total labor force–from about 10 percent in 2005 to nearly 16 percent in 2015.

Importantly, the researchers note that the increase in workers with alternative arrangements, 9.4 million between 2005 and 2015, is actually larger than the total increase in total employment (9.1 million). This means that the number of people who have traditional jobs actually decreased slightly over the last decade, while the number of people who work as independent contractors increased–by a lot. As Katz and Krueger put it, “A striking implication of these estimates is that all of the net employment growth in the U.S. economy from 2005 to 2015 appears to have occurred in alternative work arrangements.” In 2015, the total number of these workers had grown to 23.6 million.

All Because of Uber?

While online platforms that match workers with temporary gigs–like Uber, Lyft, Task Rabbit, etc.–have brought the issue of nontraditional employment into the forefront, these companies actually play a relatively small role in the overall trend. In fact, Katz and Krueger estimate that these companies accounted for just 0.5 percent of the total workforce, or about 600,000 people, in 2015. While it’s likely that as these companies have grown that share has increased, they remain a small part of the shift toward alternative work arrangements.

Although technology platform companies account for a small share of alternative employment they have been at the center of the debate. Some see these companies as a great opportunity for people to use the resources that they have to easily and quickly make some money on the side or even full time. Others see the rise of companies like Uber as a problem–attributing their success to their ability to skirt or work around employment laws, not a triumph of new technology. There’s a notable segment of the population who may have an opinion about the quality of these services but haven’t given much thought to what they mean for their workers. Finally, it’s important to note that a significant percentage of people haven’t experienced or aren’t familiar with these services. According to a Pew Research Center survey from 2015, only 15 percent of Americans had used ride-hailing apps like Lyft and Uber, and one-third of Americans hadn’t even heard of them. While those numbers include important caveats–they focus on ride-hailing apps, not the gig economy as a whole, and more people have likely become familiar with these services since then–it’s important not to overstate the size of this phenomenon.

While the share of workers rose for all four of the alternative work arrangement classifications, there was a notable increase in workers hired by contract firms and temporary help firms, which according to Katz and Krueger account for more than half of the total increase between 2005 and 2015. Independent contractors still account for the largest percentage of people in these work arrangements at an estimated 8.4 percent of the labor force.

What Does it Mean to be an Employee?

In light of all of this, we should take a look at the differences between employee status and independent contractor status. Workers who have formal employee status with their employer are entitled to a range of benefits and are protected by several workplace-related laws. They can also collect unemployment benefits, disability insurance, and workers compensation. Contractors typically do not have these same protections and benefits and are responsible for the full share of their payroll taxes, while employers pay half of the tax burden for employees.

Being an independent contractor has its benefits, notably more control over your work, but that comes with fewer protections and benefits. There are several ways to determine if you are an independent contractor or an employee, but a lot of it boils down to how much control your employer has over what you do. Some people may prefer the freedom provided by contract work and freelancing, while others might prefer the stability and benefits involved with traditional employment.

Potential Challenges

While some may be willing to make the tradeoffs when opting for an alternative work arrangement, not everyone has that choice. In an effort to keep costs lower and more predictable, many companies have started to outsource tasks that would traditionally be done by employees to independent contractors. As a result, people looking for traditional employment may only be able to find contracting jobs, creating greater uncertainty for workers. While Katz and Krueger approximate that the shift to alternative work arrangements has been larger for high-income workers, examples of low-wage contracting abound and further research needs to be done to identify how the shifts contribute to wage inequality.

Work simply isn’t as steady and as reliable when you are freelancing or working as a contractor, and importantly, it is much more difficult for contractors to get benefits that are widely available to employees. These workers are also not protected by minimum wage and overtime laws and are typically unable to collectively bargain. And when businesses need to cut costs, they are more likely to reduce contracting expenses before they fire employees.

Many people actively decide to forgo those protections in order to have more control over their schedule and work, but given that this change has occurred during a period of high unemployment, workers may be taking these positions out of necessity rather than choice. While we don’t know exactly what prompted these larger trends, it’s fair to question whether workers in alternative arrangements would prefer to be traditional employees if they had the option.

Addressing Changes in the Nature of Work

As more and more people find themselves without the benefits and protections of traditional employment, many advocates and policymakers have proposed solutions to protect these workers. Some have called for the creation of an intermediate classification to help workers that are not considered employees. Alan Krueger, this time with Seth Harris, proposed a new classification that they call the “independent worker.” Sitting in between the existing classifications, independent workers would be able to take advantage of some, but not all, of the protections provided to employees. They would be allowed collective bargaining rights and could pool together to fund insurance programs. They would also be able to benefit from tax withholding in their paychecks and would have their employer pay its half of their payroll taxes. While this classification would give them civil rights protections, minimum wage and overtime laws would not apply to them. Proponents argue that amending employment laws could give employers more flexibility while still ensuring important benefits and protections to workers.

Absent a new classification, some local governments have already made efforts to expand certain protections to independent contractors. In 2015, the Seattle City Council passed legislation to expand collective bargaining rights to drivers who work for transportation network companies as well as online platforms like Uber and Lyft. This allows drivers in the city to form unions and negotiate for better wages and benefits with the companies that they work for. However, that legislation was temporarily blocked by the courts before it took effect.

Other proposals focus on creating portable benefits, which are not tied to employment status. An example of this came from the Affordable Care Act, which created exchanges for individuals to buy health insurance on their own. The law also provides premium subsidies to reduce costs for those with incomes below 400 percent of the federal poverty line. Additional efforts like President Obama’s proposed MyRA program would allow people in alternative work arrangements to have access to a simplified retirement account untethered from an employer. There is a range of proposals that would create systems for contract workers to buy benefits on their own or with the help of their employer.

Conclusion

As more and more people find themselves in alternative work arrangements, the traditional concept of employment  is changing. Many workers now have to manage work that is less stable and provides fewer benefits and protections relative to traditional employment. While these shifts likely reflect, at least in part, the changing preferences of workers, as people desire more flexibility and control, it is also likely that many people would prefer traditional employment.

Most of the recent discussion of these trends have focused on the rise of technology platform companies, which allow individuals to find short-term gigs as a new form of work. But that debate tends to mask the larger trend, as technology companies still account for a small share of the total labor force. In order to address this shift help the affected workers, policymakers will need to rethink how employment is connected to important benefits and protections. Proposals ranging from an entirely new employment classification to portable benefits, seek to address the needs of workers while ensuring that new companies have the flexibility they need to grow.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post The Gig Economy and the Changing Nature of Work appeared first on Law Street.

“Hamilton,” the smash-hit Broadway musical that has drawn universal praise for its diverse casting, may be in hot water over the thing that made it so special to begin with. CBS2 reports that the latest casting notice has drawn ire from a New York attorney over the fact that it specifically requests “non-white men and women” to audition for roles.

Randolph McLaughlin, a civil rights attorney, claims that the casting notice is in violation of the New York City Human Rights Law. The law declares it unlawful for any advertisement or publication relating to employment to express “directly or indirectly, any limitation, specification or discrimination” as to “race, creed, color,” among other characteristics.

While a press representative told CBS2 reporters that the ad was approved by Actor’s Equity, the Broadway union, an Actor’s Equity spokeswoman told Fortune that the ad was not in compliance with its standards and was not approved by the union.

Lin-Manuel Miranda, the show’s creator and star, has been outspoken in the past about the deliberate intention to cast minorities in these roles. He told The Hollywood Reporter:

In ‘Hamilton,’ we’re telling the stories of old, dead white men but we’re using actors of color, and that makes the story more immediate and more accessible to a contemporary audience. You don’t distance the audience by putting an actor of color in a role that you would think of as default Caucasian. No, you excite people and you draw them in.

A publicist for the show later provided a statement to Fortune that emphasized that the show did not break any laws through this posting. He said:

 The producers of Hamilton regret the confusion that’s arisen from the recent posting of an open call casting notice for the show. It is essential to the storytelling of Hamilton that the principal roles—which were written for non-white characters (excepting King George)—be performed by non-white actors. This adheres to the accepted practice that certain characteristics in certain roles constitute a ‘bona fide occupational qualification’ that is legal.

So, there you have it: it looks like “Hamilton” fans need not be too concerned. And considering the intense demand for tickets (seriously…good luck getting tickets before 2018) it is doubtful that the show’s future will be affected by this controversy. With fans like President Obama, Beyonce, and practically any other famous person you could think of, it seems like the “Hamilton” train isn’t slowing down anytime soon.

Mariam Jaffery

Mariam was an Executive Assistant at Law Street Media and a native of Northern Virginia. She has a B.A. in International Affairs with a minor in Business Administration from George Washington University. Contact Mariam at mjaffery@lawstreetmedia.com.

The post “Hamilton” Accused of Reverse Racism with Casting Call appeared first on Law Street.

The National Collegiate Athletic Association (NCAA) has ruled college athletics in a manner that would make dictators green with envy, and each decade under its rule seemed to indicate the increased power they’ve gained. In 1976 the association was entrusted with the authority to penalize schools directly. In 1988, the Supreme Court held that despite its quasi-governmental makeup, the NCAA was not a state actor and therefore need not provide procedural due process. Throughout the nineties and into the present day, the NCAA brokered broadcasting deals for more and more money, resulting in a body that generated more than $750 million as of 2013.  But as any powerful politician knows, you can’t stay on top forever.

On August 8, 2014, Judge Claudia Wilken of the Northern District of California held in O’Bannon vs. NCAA that the NCAA’s current structure violates federal antitrust law. Specifically, Judge Wilken found that the NCAA can’t forbid schools from providing marginal compensation to their student athletes. For now, the ruling only approves of a $5,000 yearly allowance to an eligible NCAA basketball or football player’s trust fund. But the old guard should be nervous, as this decision is just one of several recent (and well-designed) attempts to wrestle power away from the NCAA. Earlier this year, Northwestern University football players successfully petitioned the NLRB to form a players union. Around the same time, famed labor lawyer Jeffrey Kessler filed suit against the NCAA, which essentially seeks to remove all caps on a college athlete’s earning capacity. Some journalists have indicated this is the beginning of the endfor the NCAA, but if that’s so, what lies ahead?

The good news is that courts are unlikely to reverse the advances made by the students. The NCAA has already indicated its plan to appeal O’Bannon, but since the Ninth Circuit is generally labor friendly, it’s unlikely the decision will be overturned at the next stage.

A reversal at the Supreme Court isn’t likely either. Despite a recent trend of being generally unfriendly to labor (e.g., this and this), SCOTUS is unlikely to decide O’Bannon purely on employment/labor law grounds. O’Bannon is an antitrust case, and plaintiffs in antitrust cases generally argue to oust a singular bully and restore free market principles. This is a notion most friends-of-management favor, perhaps especially in the Supreme Court’s case considering they’ve restored free market principles against the NCAA in the past.

The bad news for the student-athlete revolution is that their respective schools may have conflicting interests, and they may continue to thwart any effort to provide meaningful pay to students. Not too long ago the NCAA attempted to pass a resolution whereby student-athletes would get a stipend in addition to their scholarships. The schools, not the NCAA, pushed back against the idea.  Essentially, the schools that generated less sports-related revenue believed they would be unfairly burdened if they were forced to offer stipends in equal proportion to money makers like Texas and Wisconsin, especially after considering Title IX funding requirements.

Okay, so tax-paying Americans live with a progressive income tax rather than a flat tax, why can’t NCAA schools construct something similar with regard to student-athlete trust funds? Because the aforementioned money makers in college sports are already positioning themselves to avoid it. The day before the O’Bannon decision came down, the NCAA voted to allow the richest schools in D-I sports to have more autonomy. The autonomy could enable big schools to provide their students with more financial aid and could allow students to receive money through other pursuits (something former Colorado receiver Jeremy Bloom would have enjoyed).

The possible downside to the autonomy is that it becomes less likely the richest schools would be forced to comply with a graduated trust fund plan akin to a progressive tax. The richest schools would pay their recruits what they wanted, while the less-flush schools would be forced to pay the same amount, or risk losing even more recruits to bigger schools. This dichotomy could widen the income gap between large and small schools.

So why would the NCAA do this? Because the NCAA was a puppet government all along, man. Unlike sports oligarch FIFA, the NCAA doesn’t have a lot of disposable income. Ninety-six percent of its annual revenue is returned to charter schools, which is disproportionately given to the moneymakers of football and basketball. This money, AKA leverage, forced the hands of the NCAA and smaller schools to vote for the power-five conference autonomy, because they were scared the big schools would split off and create their own league.

In sum, the students won the day on August 8, but the real war could pit wealthy schools against not-so-wealthy schools. And in the end, the tyranny felt under the NCAA may not compare to the misery that the students and administrators of less fortunate schools feel when they try to compete against the power brokers of college sports. But ya know, viva la revolution.

Andrew Blancato

The post Watch the Throne: Who Succeeds if the NCAA Loses Power? appeared first on Law Street.

Happy November, folks! Has everyone ditched their spooky, jack-o-lantern-themed front door decorations for some good, old-fashioned hand turkeys? Yes? AWESOME.

Feels good to start fresh, am I right? Post-Halloween, fall takes on a whole new aura.

And the Senate seems to agree! They’re not swapping out their seasonal front door decorations (or are they?), but they are introducing a new piece of legislation! Yay!

Well, sort of, at least. The Senate’s about to vote on the Employment Non-Discrimination Act, affectionately termed ENDA by those of us who talk about this shit all day. It’s not actually a new piece of legislation, since it was first introduced in 1994, and passed in 1998, under President Clinton. But after this vote, it might have some important new provisions.

Specifically, this week’s vote is about adding protections that would benefit the LGBT community, so that all of us non-breeders don’t have to worry about getting unceremoniously fired. That would be good, right?

Absolutely! Except here’s the problem—this new and improved version of ENDA doesn’t have great prospects in the House. A bunch of Congress-people down there are planning to vote against it.

We’re looking at you, Boehner. You are just not a likeable guy these days, my man.

He’s publicly opposed the bill, sending one of his henchmen (I mean, spokespeople! Freudian slip, my bad), Michael Steel, to tell the press, “The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”

So, passing a bill that will prevent people from getting fired will magically make jobs disappear? Oh, Boehner, you silly goose. You’ve got it backwards! When people don’t get fired, they get to keep their jobs, meaning less unemployment and a better economy for everyone. But you knew that, right?

Right.

Also, frivolous litigation? So, when people sue their employers for wrongful termination, you would consider that to be frivolous? Interesting.

I think what Speaker Boehner is getting at here, is the idea that adding the LGBT community to ENDA is unnecessary. According to him, us queers don’t have a problem with employment discrimination, and if we do, there’s other legislation that can handle it for us.

By that line of reasoning, if we get more laws protecting our employment prospects, queers would pretty much be unfire-able. Every time one of us faces termination—no matter how warranted—we’ll threaten our employer with a discrimination lawsuit, and wind up either suing people left and right, or never being unemployed again.

Ah, if only life were that simple, Boehner. Here’s the reality for queers in the workforce.

Thanks Upworthy!

In the 29 red states on this map, it’s completely legal to fire someone from their job because of their sexual orientation.

Literally. No exaggerations, no equivocations. For real.

In the 29 red states, if your boss does not approve of who you like to fuck in your spare time, he or she can fire your ass, no questions asked.

That is a major problem.

And it’s worse for trans or gender-non-conforming people. There are 33 states where it’s totally legal to fire someone based on their gender identity.

Seriously. And, up to 43 percent of lesbian, gay, and bisexual people have experienced harassment or discrimination at work because of their sexual orientation. Ninety percent of trans folks have had these experiences.

Is it just me, or are those some extremely depressing numbers?

For starters, it sucks being harassed or discriminated against at work. And that’s putting it lightly. We all spend the majority of our lives at work—imagine spending that time getting treated like shit by your boss and/or coworkers, just because of who you are? That shit’s soul crushing.

And that’s if you’re lucky enough to have a job at all. At least in this bummer-town scenario, you’re earning a paycheck.

But what happens when the abuse gets to be so bad that you’re forced to quit? Or when your boss decides that having a fabulous, queermo, rainbow butterfly on his payroll isn’t acceptable, and fires your ass?

Then you’ve got no way to pay your rent. No wonder queers face higher rates of poverty and unemployment.

So, Speaker Boehner, here’s the thing.

Adding sexual orientation and gender identity to ENDA, as two reasons that are NOT legal grounds for firing someone, is a good thing. At the end of the day, it translates to less unemployment, less poverty, and generally, less douche-iness.

So let’s get it done, Congress! Add us queers to your list of legally protected citizens who can’t be discriminated against in the workplace.

Then, maybe next week I won’t write a follow-up piece about how you’re all assholes.

—

Featured image courtesy of [Philippa Willitts via Flickr]

Hannah R. Winsten

Hannah R. Winsten is a freelance copywriter, marketing consultant, and blogger living in New York’s sixth borough. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow. Contact Hannah at staff@LawStreetMedia.com.

The post Congress, Make it Stop: You Can Still Get Fired for Being Gay appeared first on Law Street.