Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “How DoorDash's New Pay Policy Muddies Gig Worker Debate,” by Daniela Porat. (Read the full version – subscription required.)
Following is an excerpt:
DoorDash's new compensation model allowing workers to earn hourly wages during active trips disrupts the already-complicated legal landscape of employee classification and portends new legal battle lines, attorneys say.
As part of its 10th anniversary, DoorDash officially announced in June that it would allow "dashers," the workers who make deliveries, to toggle between the traditional earn-by-offer scheme and an earn-by-time option — meaning they could earn a form of an hourly wage based on time spent in an active delivery, according to the company's website. …
Optics of Hourly Work
The option of hourly pay may lend support to the argument that dashers are employees instead of independent contractors, said Paul DeCamp, member of management-side firm Epstein Becker Green and former administrator of the U.S. Department of Labor's Wage and Hour Division.
"The optics of hourly pay lean more toward employment than nonemployment," he said. "More often than not in independent, arm's-length relationships between a hiring entity or a business and a worker, the pay is arranged based on the task as opposed to the time spent on the task."
However, that is not always the case, DeCamp said, because there are many instances of independent contractor relationships where compensation is based on time required.
"One has to look at all the other factors, all the other aspects of the relationship to make a full assessment of the legal status of employment versus not employment," he said. "But this is one piece of the relationship that I think will be an important aspect of the argument in court about whether the dashers are employees or not." …
There is a recognition that the current statutory structures do not address the gray areas of employee classification that have arisen in the gig economy, DeCamp said. While these tensions will continue to play out in litigation, it is ultimately a question of public opinion, he said.
"We have to decide as a society, is this a good thing or not? And the courts will have some say in this, but this is an issue that goes way beyond the law. This is largely a political question," he said. "Eventually, society is going to be what decides whether the gig economy survives."