An Ounce of Prevention is Surely Worth a Pound of Cure

One of the main jobs of outside corporate counsel is to manage risk along with handling the business of managing the entire spectrum of employer-employee relationship issues. From employee hiring, through to employee exit, being entrusted to manage the clients' most sensitive and complex issues. Good corporate counsel will also provide exceptional support by combining real-world human resource guidance, all informed by relevant employment law provisions.

The Shanker Law Firm, P.C. acts as outside corporate counsel and advises clients on the full spectrum of complex human resources and employment law issues. We provide strategic, operational and legally privileged advice to help our clients deliver effective business solutions to manage their employees. Clients turn to us to help them manage employee risks and provide strategic, board level advice on crucial employment-related issues, as well as counsel on day-to-day operational support.

Our unique business model allows The Shanker Law Firm, P.C. to provide clients with practical responses to new employment legislation, case law, and regulatory changes, and an ability to strategically advise on a wide range of contentious and sometimes non-contentious human resources and employment law matters, including:

  • Drafting and Negotiating Employment and Employee Documentation

  • Employment Disputes and Dismissals

  • Human Resources Policies and Procedures

  • Redundancies and Restructurings

  • Outplacement Services

  • Remuneration and Benefits

In the world of big business today, most corporate owners and CEO’s are just not as versed as they should be in the sensitive nature of employer-employee relationship and employment law matters. I always believe in the old saying that an ounce of prevention is worth a pound of cure. The only question is whether you, as a business owner or CEO, wants to pay now to protect your business later…or to pay later and hope that the problem, that could likely have been prevented, will be able to be ameliorated in the face of either costly litigation or the threat thereof.  

Why Wont the TLC Just Give the Industry's Solution an Chance

Check out my newest article on the TLC and the Wheelchair Accessible Problem that has plagued New Yorkers for decades. 

Click here:  http://editions.us.com/livery/14/

For the first time in history, a coalition of all sectors of the FHV industry in NYC have come together to resolve a decades old problem of proving real, vibrant and reliable wheelchair accessible service to New Yorkers, but the TLC is standing in there way of the biggest and brightest because the TLD wants to prove their solution is the best...or the TLC just can't accept that they may not be the brightest in the FHV world. 

 

Time for Companies to Utilize the Outside General Counsel.

The concept behind “general counsel outsourcing” is that a business organization may not need to hire a full time in-house lawyer to perform the services and functions performed by a general counsel. Some business organizations may be able to contract outside the organization, resulting in improved efficiencies and profit.

The concept of outsourcing certain business and services functions is not new. It has been used for years. For example, most companies do not maintain their own payroll function, they outsource it – there are specialists outside contractors who can manage the function more cost-effectively. For the same reason, many companies outsource most non-strategic functions – the annual report preparation; staff recruitment; insurance; public relations; advertising; internal audit; staff training; and information services.

Outsourcing of legal counsel has become a major response to the profit pressures on many businesses. In the past, companies have outsourced mostly functions considered non-strategic to the company, such as some of those listed above. However, due to increased pressures on profits and accountability issues with respect to corporate governance, regulatory compliance and risk management, there is a trend towards outsourcing “strategic” functions of business organizations, such as the general counsel.

The concept goes beyond the legal realm and also into the operational realm of a business as well. It involves the belief that services and functions typically performed by someone in upper level management should be performed by a general counsel and such functions includes legal analysis of business decisions, planning and other input that needs to go into the strategic planning process. Legal counsel along with the operational planning and review process can be outsourced to a lawyer who understands the company’s business and culture who, in essence, becomes a part-time extension of the company’s senior management team.

Most companies recognize that they need legal resources at a senior level to perform this strategic legal function to ensure that the company’s major assets and rights are suitably protected and its major exposures and obligations are suitably managed. In practical terms, this involves an on-going legal risk and opportunities audit, and an ongoing legal compliance program. Small to middle market companies must make tough decisions when addressing such strategic legal resources. Such companies are constantly seeking ways to obtain the strategic legal resources that their business requires while at the same time trying to save money and increase efficiency. Many such companies find that traditional methods of retaining counsel are not cost effective because traditional law firm overhead costs, for office space and support staff, limit a firm’s flexibility in fee-setting. When outside counsel fees climb, emerging companies consider hiring an inside counsel as an employee. With all the benefits that employee status entails, hiring someone to be an inside counsel can also be costly; such companies simply may not have the justification or the resources to hire a full-time in-house general counsel.

Outsourced general counsel services offer an attractive option to many companies. For a specified and agreed upon monthly fee, the company contracts with an experienced and well qualified attorney to provide strategic in-house counsel legal services. The outsourced general counsel is an independent contractor, not an employee. He or she may periodically work at the company’s site in order to provide the same high quality, high level of service of law firms or employee counsel. The outsourced general counsel becomes an extension of the company’s senior management team.

In no event, should any company buy the idea that the outsourcing of general counsel legal services decision is an all or nothing choice. Certainly, some legal services are best delivered externally, from law firms that offer specialized legal services. However, other legal services such as certain employment law and labor issues, legal day-to-day corporate governance issues and strategic functions, can be performed effectively by the company with the help of an outsourced general counsel who understands the company’s business.

As in most things, it is a matter of balance and the result of informed and objective analyses. The key issue of determining whether outsourced general counsel services are proper for a company is a question of balancing the delivery of the company’s needs for such services to ensure an ultimate advantage for the company against the cost of an outsourced general counsel. 

Most companies who I represent have addressed this question would agree with many of the following:

  • the ability to operate at a senior level in the company’s organization;
  • a close understanding of the company’s policies, strategies and objectives;
  • a close understanding of the company’s operating methods, processes, products, suppliers and customers;
  • the ability to manage legal risk, to analyze the company’s strategies and in order to identify legal issues, and to develop plans and programs to manage and, if possible, to avoid legal problems that arise;
  • the timely delivery of work of high technical quality that also provides practical solutions which meet the company’s business goals;
  • the ability to work closely and co-operatively with company personnel, suppliers and customers as may be required;
  • the ability to add value to the company whether this is by saving money, avoiding losses, solving problems, achieving their business objectives, by using knowledge and skills to improve the way the company manages its legal risks and pursues its legal rights and opportunities; and
  • the ability to manage external legal services for extraordinary legal issues that arise (e.g., litigation; public/private securities offerings; bankruptcy) in a cost-effective way that achieves optimum benefits for the company

Almost by definition, these qualities can only be performed by someone inside the company, who has absorbed the company’s culture and become part of the way the company does business. An outsourced general counsel can provide this level of service and resources for the company.

We have done this many times in the past and fortunately with great success for the companies we have and continue to represent. It is an alternative to hourly billing. It is an alternative to the lawyer as the enemy. It gives you a reason to call your lawyer without fear of being charged for every 6 minutes of time. Most of all, it give the business and its owners peace of mind that the company is in good hands.

One day, Hopefully soon...Uber Will Have Its Day of Reckoning

What does an Uber ride actually cost? That simple question is often lost among the many controversies facing Uber, but it is surely one of the most important question of all when it comes to determining the value of Uber which has built its business on massive subsidies to both riders and drivers, producing huge losses in the process, and has yet to show that it can maintain growth without them.

Although a private company dos not need to release its financial data, Uber has started releasing limited financial data, and in May reported a loss of $708 million for the first quarter, down from $991 million in the fourth quarter. While their upcoming financial report may show further improvement on margins, Uber continues to spend heavily on subsidized rides.

The question vexing everyone is what the company is worth. Truthfully, I really don't care. Not just because I am anti-Uber but because their entire business model is based upon explanation of persons and creating the myth of providing jobs when their true intent is to totally divest itself, in due course, of all drivers. How drivers do not see this and continue to driver for them is beyond me. Maybe I am wrong in my forecast or perhaps I just simply do not like illegal monopolies.

Uber’s losses stem from its drive to win global market share at almost any cost. That strategy was built on the assumption that Uber could achieve a dominant position in many big cities quickly and eventually raise prices. Kalanick himself said low fares were temporary. But eight years in, the strategy is now in doubt as competition in many markets continues to intensify. Uber must solve the problem of how to eliminate subsidies without losing customers and thereby undercutting its valuation.

At some point in time, Uber will have its day of reckoning as they will eventually have to raise prices and get rid of driver subsidies. And we all know what happens when you raise prices - demand goes down. And when you give up driver subsidies - supply of drivers goes down.

Regardless of their Valuation, in my humble opinion, Uber has become an illegal monopoly. I have conducted my fair share of research on the Sherman Act and its progeny since the late 1800's when certain monopolies were declared illegal. Monopolies are bad for the public, bad for the economy and bad for competition. Uber will eventually raise its prices and do away with driver subsidies...and then the riding public will see Uber for what it truly is. Not an aid to the Salvation Army, but a money hungry technological monopoly that is built on a house of cards. When one of the cards start to fall, the others shall follow. Then I hope to see Kalanick himself driving around in his own vehicle with the stupid "U" in the front window.

Disability Rights Advocates Should be Outraged Over the Actions of the NYC Taxi and Limousine Commission.

Anyone who rides in a NYC taxicab pays a 30-cent surcharge on each ride to help the city make the cabs more accessible to those with disabilities. So while the NYC Taxi and Limousine Commission (“TLC”) is busy making new rules placing the burden to provide more wheelchair accessible service upon car services, a new audit by Scott Stringer, the NYC Comptroller shows that the Taxi & Limousine Commission failed to collect $5.7 million in surcharges which is supposed to be earmarked for making more taxicabs wheelchair-accessible. This is an abomination and the public should be outraged.  

A hypocrite is a person who pretends to have virtues or moral beliefs, but they either do not actually possess them or they are feigning some publicly approved attitude. The hypocrite is also the person whose actions belie their stated alleged beliefs. If what the Comptroller is claiming is true, and there is no reason to believe it is false, then why doesn’t the TLC just admit their own errors and stop trying to place responsibility elsewhere. According to Stringer "When you don't collect the money, you are discriminating against people who need that lifeline, that ride, that opportunity," Watch the brief video here from News 4 New York. http://www.nbcnewyork.com/news/local/NYC-Taxi-TLC-Failed-to-Collect-57-Million-Dollars-Surcharges-Wheelchair-Accessible-Cabs-434343593.html

The TLC claims that it has a "more than adequate" reserve to keep the taxi accessibility program going, and that since medallion taxi cabs -- including wheelchair accessible cabs -- are "brought into service in a highly scheduled manner," the unpaid funds "would not have prevented even a single wheelchair accessible vehicle from being put on the road." This is incredible as it is akin to saying that it is OK to steal from someone so long as you give the money back before they need it.

This money is supposed goes into a fund called the Taxicab Improvement Fund, which subsidizes owners to put wheelchair accessible cabs on the road. Half of yellow cabs are supposed to be wheelchair-accessible by 2020. In this case, by failing to collect millions of dollars, the TLC is acting in a manner that is contrary not only to its public pronouncements on disability, but is in total abrogation of its duties and legal obligations.  According to the TLC, they are trying to be very thoughtful about how to begin enforcement, especially at a time when the industry is facing a number of challenges. The industry is surely facing a number of challenges and it is mostly because the TLC is taking the wrong approach to achieving the right goal.

On 9/21/17 the TLC will be holding a public hearing for the members of the public and industry stakeholders to speak their minds about the proposed rules requiring all For-Hire Vehicle  Bases to send 25% of their dispatched trips to wheelchair accessible vehicles by 2021 (starting at 10% and gradually increasing). This means that For-Hire Vehicles (“FHV”), including black cars, car services and luxury limousines, which transports approximately 400,000 passengers each day will have to send dispatches to more wheelchair accessible vehicles than are currently on the road today and more than are reasonably likely to be available anytime in the near future. According to the TLC’s own data, there are approximately 96,677 active FHVs. Of this, only 464 FHV are wheelchair accessible. In other words, only approximately 0.48% of the FHVs are currently wheelchair accessible vehicles. Obviously, something has to be done to make transportation more readily available to those persons using wheelchair, but there are extremely varied opinions on what the solution should be.

The TLC believes the key to real accessible service is vehicle availability. Their proposal is for each FHV base to be required to dispatch a certain percentage of its trips to vehicles that are wheelchair accessible. The TLC is making a leap of faith here and their stated solution will not solve the problem. The TLC believes if FHV bases must dispatch a certain percentage of its trips to wheelchair accessible vehicles then such vehicles will be on the road and available to pick up passengers that use wheelchairs who today are unable to get reliable for hire service. There are a number of flaws in this argument and a number of reasons why the TLC’s stated means will not achieve their goals, all to the detriment of the disabled community.

First the overwhelming majority of FHV bases do NOT own vehicles. Requiring bases to dispatch to FHV vehicles will not cause nor require a driver to purchase a wheelchair accessible vehicle. FHV bases have no ability to place more wheelchair accessible vehicle on the road. Unless the TLC plans to provide subsidies to FHV vehicle owners, they are unlikely to voluntarily go out and purchase a more expensive vehicle that can provide wheelchair accessible transportation (or buy a vehicle and pay the added costs associated with outfitting it to be wheelchair accessible). So then where are all these wheelchair accessible FHV’s going to come from…out of thin air? The business model of a FHV base is not that of an owner of a fleet of vehicles. Placing the responsibility on bases to somehow ensure that there are more wheelchair accessible FHV’s on the road is placing responsibility in the wrong place.

Next, even assuming there are sufficient wheelchair accessible FHV’s on the road to enable bases to dispatch 25% of all its calls to wheelchair accessible FHV’s, this means that a base can be in compliance with the law, but never have provided a single trip to a person who needs a wheelchair accessible FHV. What is the sense in making a rule that even if complied with, does not help the wheelchair community in any real and meaningful way. As it now stands, such a rule cannot be complied with and TLC has no real plan set out to enable bases to comply with such rule.

Moreover, by requiring that more wheelchair accessible FHV’s be placed on the road, the TLC will be limiting the choices and desires of the rest of the riding public. They conveniently forget that some people seek transportation in a sedan or a mini-van or SUV. If more wheelchair accessible FHV’s are somehow placed on the road, then there will be less sedans, mini-vans and SUVs. There are only a finite number of drivers and vehicle owners and as such, the more that bases have to dispatch to wheelchair accessible FHV’s, the less likely a person seeking a trip in a sedan or SUV is actually going to be able to get one. So the TLC is seeking to limit the travel options of 99% of the riding public all because the TLC has not thought this idea through and have not sought a balanced solution.

After the City realized it was about to lose a federal lawsuit filed by Disability Rights Advocates they agreed to make at least 50% of all taxis wheelchair accessible by 2020. Prior to the settlement of the federal lawsuit, the TLC’s solution has been and remains with the TLC as the manager of a program that provides wheelchair-accessible yellow taxi dispatching services. See the following link for more information. http://www.nyc.gov/html/tlc/html/passenger/accessible.shtml.  This program was set up in June 2012 to enable wheelchair users to request accessible taxicabs via 311. Back in 2012, there were approximately 13,000 yellow taxis, out of which about 230 taxis were wheelchair accessible taxis participating in the program. In other words, the TLC’s solution was using approximately 1.77% of the taxi fleet to answer the wheelchair accessible taxi demand. So far there have been no complaints that this program is not operating properly.

Based upon the above, why should the TLC not create and manage a program that provides wheelchair-accessible FHV dispatching services similar to the taxis. How about trying this solution out first before implementing an arbitrary rule that will not solve the problem. The difference here is that medallion owners own the vehicles that have the medallion on it and as such, the TLC had the ability to mandate such action be taken by the taxis and the medallion owners had the ability to comply, especially with subsidies from the City. So once again, unlike medallion owners, base owners do not own vehicles and have no ability to add wheelchair accessible FHVs to the marketplace. If FHV bases have no ability to add wheelchair accessible FHV to the marketplace, then how can the responsibility lie with them. The answer is it can and should not.

Dr. Avik Kabessa, the CEO of Carmel Car and Limousine Service (“Carmel”) and myself as the Executive Director and Counsel to the Livery Round Table, Inc. (the livery industry trade organization) do not deny that wheelchair users lack adequate access to this crucial part of New York's transportation network. Dr. Kabessa, as a longtime leader in the FHV industry and a founding member of the Livery Round Table, Inc, will continue to advocate for a solution that ensures affordable, reliable transportation to every single person who requires a wheelchair accessible vehicle. But both Dr. Kabessa, Carmel and the Livery Round Table, Inc. believe that there are a number of other more viable and realistic options available to meet the City’s stated goals. So why is the TLC in such a rush to make new regulations? Does it make sense to rush to make a regulation rather than discuss the issues with all industry leaders and stakeholders so as to find a meaningful and viable solution rather than utilize the first solution that comes to the mind of the TLC? Dr. Kabessa and I will surely be present at the public hearing on 9/21/17 to express our views and opinions. Hopefully the TLC will not give such options and ideas short shrift.

So in the end, the hypocrisy of the TLC is multi-fold. First, they are making arbitrary and unworkable rules that will not solve a very real problem that the disabled community faces. Next, rather than come up with a real solution that involves the input of the people who have the most knowledge and experience in the FHV industry in creating solutions to problems, the TLC will make rules that only make it look like they are doing something for the disabled community. In essence, the TLC will make these new rules as window dressing for the disabled community, just like they promulgated the driver fatigue rules (limiting the number of hours an FHV driver can operate), to serve as window dressing for the Mayor’s Vision Zero plan.

Finally, lets go back to the $5.7 million dollars the NYC Comptroller found lacking from the TLC’s “30 cent surcharge account”. The TLC made nothing but lame excuses for their failure to collect such monies that are earmarked specifically for the benefit of the disabled community and now they want to promulgate rules to help the disabled community? Unfortunately, they do so in a manner which shows their lack of understanding of the FHV industry. Perhaps the TLC should tend to their own house and make sure they collect the millions of dollars it is owed for the benefit of the disabled community before it goes on to make new rules that will be unable to be complied with and which will not provide the disabled community with adequate access they deserve to this part of New York's transportation network. 

 

 

 

HR Departments Should Review Uber's Conduct as a Precautionary Tale.

We have all seen the news coverage of the sexual harassment and discrimination problems at Uber. According to reports, Uber has long suffered from a culture of pervasive sexual harassment and discrimination toward female employees. The issues first came to light publicly in February, when one former Uber employee published a blog post about the sexual harassment that she and other women experienced at the company.

Based on the information available, it appears that the problem at Uber did not stem only from the harassers themselves. Rather, the problems stemmed from a misguided Human Resources department that allowed the problems to go unchecked, despite receiving multiple reports of sexual harassment and discrimination from female employees.

According to reports, when a female employee reported harassment or discrimination to Uber’s Human Resources department, she was more likely to be chastised by HR than to have her concerns addressed. According to allegations, HR representatives told employees who reported such issues that, because the conduct complained of was the harasser’s “first offense” and the harasser was a “high performer,” he would receive a warning, nothing more. HR allegedly told one woman (the author of the February blog post referred to above) that the fact that she had made multiple complaints indicated that it was she, not the male employees she was reporting, who was the problem.

If true, these allegations suggest that Uber’s HR department believed that its highest priority was to protect “high performers” at all costs, even if that meant allowing sexual harassment to run rampant within the company. Generally, when an HR department adopts such an outlook, it comes from the top. HR staff who believe that management expects them to protect harassers and sweep complaints under the rug will, quite often, do so. Like any other employee, an HR rep wants to keep his or her job.

That is why it is imperative that management sets the tone for a company’s culture. HR must receive clear directives that harassment and discrimination are not to be tolerated, and employees must be made to feel that any issues they report will be taken seriously and dealt with appropriately. These messages must be conveyed through both the words and actions of management. HR must understand its role to be a watchdog for compliance issues and an advocate for employees, not a puppet of management.

Uber has terminated at least 20 employees in the fallout from the sexual harassment and discrimination scandal, and its CEO has resigned. Clearly, the company will be feeling the impact of the scandal for quite some time. Any company that has not taken proactive steps to assure that its HR department understands its true purpose and role should view this story as a cautionary tale.

Your Corporate Counsel…Doctor Or Fireman?

I believe in the old saying that an ounce of prevention will prevent a pound of cure. A little precaution before a crisis occurs is preferable to a lot of fixing after afterwards.  To put it another way, I believe a lawyer can either serve a corporation as being a doctor or fireman. If a corporation looks at a lawyer as a doctor, then they will seek effective legal counsel before there is a problem for the specific purpose of preventing a problem before it occurs. This is akin to yearly checkup at your internist’s office. On the other hand, some corporations treat a lawyer as a fireman. In other words, some corporations only seek out legal counsel when there is a problem (a.k.a. fire) and then the lawyers placed in the difficult position of having to act like a fireman, triage the problem, act quickly and effectively and hopefully put out the fire. Of course, is much more expensive to have the fire department responded fire than it is to go to your doctor's office for periodic checkup. There is no difference in the corporate world. If you want to prevent the problem, then the leaders of the corporation must decide whether they want to ensure compliance with the law by hiring the proper professionals or if they want TO take the risk of noncompliance and deal with the prospect of costly lawsuits. While the cost of compliance with the law is never cheap, the cost of noncompliance is often greater than the cost of compliance

 

Companies Should Consider Outsourcing Their Organizations HR Compliance Functions

For both small and midsized companies, effective human resource management is critical to success — especially in today’s competitive business climate. HR management is a complex, ever-changing discipline burdened with trials that impact employee productivity, HR compliance, and ultimately, the bottom line. Company HR managers and those who deal with HR corporate compliance must look at six key areas: hiring, payroll, benefits, employee relations, risk & safety and employee relations. Since HR compliance lies at the heart of effective human resource management, it is alarming to discover that most HR managers either express concern about their ability to comply with HR laws and employment laws or know that they are not in compliance with the law, but do not know what to do about it.

 

Companies Often Lack Confidence in their Organizations’ HR Compliance Capabilities

Locating and hiring qualified HR Managers should be a top business concern for many corporations.  Most companies have a moderate or slight level of confidence — or even no confidence at all — in their ability to comply with important HR and employment laws, rules and regulations. This is very troubling, especially considering the fact that most legal problems can be avoided with an ounce of prevention.

 

HR Compliance Challenges Are Expected to Increase Moving Forward

HR managers should expect the compliance legal landscape to become even more challenging over the next one to three years. Given their compliance concerns — both today and looking forward — it’s not surprising that the vast majority of companies seeks professional legal advice to address compliance issue and would even consider outsourcing their HR function entirely.

Where HR Managers See Room for HR Compliance Improvements

In my experience, many HR managers are less than confident with regard to compliance in noteworthy aspects of hiring, employee relations, and risk & safety. Non-compliance in these areas could put small and midsized businesses in jeopardy of FLSA and OSHA violations, as well as employee grievances. 

 

Taking Steps to Minimize HR Compliance Risks

Given the risks associated with non-compliance, companies should consider taking steps to address any HR compliance issues sooner rather than later. With employee litigation — and compensatory awards — on the rise, companies face major potential legal liabilities if they fail to comply with HR and employment laws, rules and regulations. Statistics compiled by Jury Verdict Research show that employment lawsuits have risen 400 percent in the last 20 years, with the average compensatory reward in federal employment cases now exceeding $490,000. For small to midsized businesses, these statistics highlight the need to address any compliance concerns, even if that means seeking guidance from third-party professionals or outsourcing the HR function entirely. 

 

Addressing HR Compliance Issues is Key to Effective Human Resource Management 

In order to achieve a competitive edge, today’s business are striving to operate as efficiently and cost-effectively as possible while maintaining HR compliance and attracting and retaining top talent. However, HR managers are recognizing the challenges of complying with complex, dynamic HR laws and employment laws. Since shortcomings in key areas of HR compliance can put businesses at a competitive and financial disadvantage, it only makes sense that small and midsized companies use the many effective tools and services available to become — and stay — compliant.

 

Conclusion

A little precaution before a crisis occurs is preferable to a lot of fixing after afterwards.

 

Time for the Public to see Uber for What they Really Are.....and to go elsewhere

Uber’s global pattern of driver mistreatment, corporate bullying and legal transgressions should be tolerated no more.  For years, Uber managed to conceal its bad behavior with expensive P.R. campaigns and by claiming they are a technology company and not a transportation provider. Their games may have worked for a while, but their grand plan is quickly unraveling.

Uber is convenient and fast in New York City. The combination of cashless transactions and location technology make for a great service. But no amount of convenience can cover up the toxic culture that has taken hold at Uber. This hold true now not only in the treatment of its huge driver workforce, but at the company’s headquarters as well. Uber’s CEO has finally been forced to resign, but this is simply not enough.

We all know by now that Uber’s wrongdoing does not end at the door of its corporate headquarters. Just as evil is Uber’s model of “employment”. In my opinion, under New York law, Uber is an employer, but offers no employee benefits to its drivers and does not pay the taxing and regulatory costs associated with employing persons. In the vast majority of cases, Uber drivers are offered low pay, no sick pay, no vacations, no 401K. In return, they are promised “flexibility”, or the freedom to work whatever hours suit them. In practice, many Uber drivers are working long, long shifts for extremely poor pay in order to try to make ends meet. On the other hand, Uber continues to operate outside of the law with impunity.

Politicians are yet to condemn Uber. Perhaps their political contributions are just too large to refuse. I am at the point where I refuse to believe politicians will intervene and Uber is surely not going to change its business model on its own volition. But not using the app will surely send them a clear message. The consuming public needs to use its power as customers to force Uber to change their behavior. The workforce of drivers need to stand up to Uber and say “no more”, by disaffiliating with them and refusing to accept their dispatches.

 While Uber is convenient and fast in New York City due to their combination of cashless transactions and location technology, there are plenty of other car services in New York City that do the same exact thing. The only difference is that Uber operates outside of the law, while the car services that provide the same type of service in New York City have been in business for decades and know who to operate a transportation business. The consuming public and the drivers affiliated with Uber should use their collective power and go elsewhere. Uber is not going to change on its own, but you do have the power to “vote” by not using their service. Uber is no longer the sexy newcomer with a cool service. It is a lawless entity that uses drivers like slaves and laughs at the consuming public along the way. Why should anyone put up with this type of service. The time has come for the public to consider that Uber did force many of the incumbents in the industry in New York City to revolutionize and create their own technology to meet the demands of the public. It is now time to go back to these companies and use their service. You deserve better

The Gig Economy Is Here to Stay

Lets face it. The gig economy is here to stay. If it was not a good idea, then the entire market of new companies that have been created would not be flourishing…and they are not all flourishing because they are taking advantage of loopholes in the law. When something does not go the way they expect it, the layperson calls it a “loophole in the law”. When someone or some company escapes legal liability on a “technicality” the public calls it unfair. It is almost always an afterthought reaction when a group of persons file a class action lawsuit against a company alleging that the company misclassified them as independent contractors. Of course, they don’t seek “justice” by making the market reform to the existing laws and they don’t petition their elected leaders to change the law, but they seek the usual object of a lawsuit….MONEY (compensation for missed lunch breaks, minimum wage compensation, reimbursement for business expenses, and overtime, in addition to other penalties). While a lawsuit and the payment of money may have the unintended result of making a company reform its business practices, the current wave of class action lawsuits will not change an entire industry that has been created in the past 5-6 years.

Lawsuits against companies utilizing the “gig economy” are like a threatening cloud in a brewing storm. People who provide services surely deserve respect, fair treatment, and open communication, but that does not mean that all persons who provide services are employees, as opposed to independent contractors. Yes, there surely are many companies that misclassify their workers as independent contractors as opposed to employees in order to avoid the legal and financial liabilities associated with hiring an employee. But there are also many who follow the law and do utilize independent contractors, but still have to navigate the legal maze of bottom feeding lawyers that seek out these class action lawsuits, not to reform an industry or a market, but to get money.      

This rising legal retribution is a huge threat to the gig economy. Not being responsible for employees’ taxes and benefits allows companies to operate with 20% to 30% less in labor costs than the incumbent competition. If they lose this workforce structure either via class-action lawsuits or intervention by regulators, or through the collective action of disgruntled workers, and you will surely lose the gig economy.

The lawmakers may need to alter the very definition of “employee” in order to meet the demands of the in a tech-enabled, service-driven economy in the 21st century American Gig economy. Many companies do not own cars, hotels, or even their workers’ cleaning supplies. What they own is a marketplace with two sides. On one side are people who need a job done–a ride to the airport, a clean house, a lunchtime delivery. On the other are people who are willing to do that job. In the middle is a broker. This is the one that puts the two parties together and takes a “piece of the action”. Little or no direction and control over the means by which a person provides their service is the legal equivalent of an independent contractor. If you don’t like being an independent contractor, then go out and get a job as an employee, which involves more supervision, more direction and less autonomy. There is nothing wrong with that, but just don’t complain later on that you were cheated after you speak to a scum sucking ambulance chaser.

Some say a new deal has to be worked out and one that squares the legal rules governing work with new products and new services. Some believe the gig economy created a marketplace where people who provide services do not fit neatly into the traditional definition of employee or independent contractor. Right now, one who provides services is not sure what benefits to expect from a quasi-employer. For those who want to know, all you have to do is ask. If you don’t like the answer, then don’t accept the job or don’t provide the service. I believe one can be both independent and tethered to an app-based company. The social contract between gig economy workers and employers may be outdated, but it is far from broken. Who will fix it, and how, will determine the fate of many thousands of workers and billions of dollars.

Thanks to these new on-demand startups, though, whether you’re a stay-at-home mom with a few odd hours to spare or a recently unemployed fast-food worker who needs to make ends meet while looking for a job, you can work whenever you want, doing whatever you want. Many like the flexibility and feel like it gives them a better work and life balance. In the gig economy, you’re better than an employee; you’re a little business. We now live in a world where people can be entrepreneurs or micro-entrepreneurs, Just like the government didn’t begin to regulate the Internet before it became a behemoth, regulating this new economy before it’s fully created could halt innovation. Perhaps I just don’t have much faith in regulators whose job is not to ensure a properly working system, but to regulate for the sake of regulation by implementing more and more rules of operation to the point of choking a business to death. Just like the New York City Taxi and Limousine Commission did to the for-hire vehicle industry in New York City.

 

I believe the gig economy has been improperly interpreted as a loophole for avoiding labor laws. There is little economic security or predictability in being an independent contractor, but then again, there is the promise of starting off with your own small entity and creating something new and ever bigger and better than before. If you want security and predictability, then go get a job teaching 4th grade in an elementary school. If you want to take a risk and be your own boss and possibly fulfill your dreams, then start your own business and make it rain…and don’t come complaining later when your own ideas and inventions don’t work out because it is not the fault anyone other than you and your own choices. Some don’t like the gig economy because there is no power among workers to get a fair share of the profits. For those who believe this, take a step back and realize that you don’t get the profits of a private company by being an employee or a person that provides services.  Many people try and fail to make money with gig economy jobs, and then complain that their legal rights were violated. Why did they not think of this when they signed on to be an independent contractor in the first place

It’s safe to say that there are advantages to being an employee (security, safety laws, minimum wage, benefits) and that there are also advantages to being an independent contractor (freedom, independence, opportunity for more profit). Similarly, there are advantages to hiring employees (quality control, dependable workers) and hiring contract workers (cheaper, don’t need to guarantee work). Where platforms and new markets get into legally dubious territory is when they try to claim the advantages of both systems at the same time. But just remember that simply because you utilize the platform of another company does not mean that you don’t have control over the work you did. If the company that provided the platform or means to access the marketplace, then you would not have the option to be an independent contractor.

The laws that determine independent contractor and employee status vary from state to state and from situation to situation, but many of them focus on the question of how much control workers have over their work. If their employer is mainly focused on the outcome of that work, there’s a very good chance they’re fairly being classified as an independent contractor. When their employer begins to control not only what work they do, but how they do it, that classification gets murky. Giving persons suggestions for how to do their work should not made the company more vulnerable to a lawsuit. Similarly, though traditional taxi drivers are often independent workers rather than employees, a platform like Uber takes a certain amount of control when it fires them for low ratings or changes their fare prices. Some don’t like the idea of going into work one day and your “boss” telling you that you’re going to have to do the exact same job you did last week but make less money”. But ”firing” someone for low ratings does not necessarily make them an employee, it may just means that the company no longer desires to utilize their services.

Right now, our legal system only has two buckets for workers who aren’t volunteers or interns. You are an employee. Or you are an independent contractor. The risk of being sued has led many in the gig economy to place workers into the employee bucket. This also drives costs to the consumer up because the cost structure for these companies increases by about 30% by paying for taxes and benefits that they may not have to, but they just want to be cautious. Other companies in the gig economy place workers into the independent contractor bucket, which entails the risk of worker misclassification claims for disgruntled persons who formerly provided services and/or tax hungry governmental entities that have every intention of finding an employer-employee relationship so they can increase revenue for the city, state and/or federal government. The legal risk, the risk of being asked to pay back-taxes by the IRS or Department of Labor is a battle that everyone knows is coming and each entity that utilizes independent contractors should make budgetary preparations, emotional preparations and legal preparations to fight and defend.

The pressure in the marketplace right now is to push workers into one bucket or another (employees or independent contractors). This creates an inherent fear of the governmental fines if you are wrong and the fear of the cost of defending a class-action lawsuit where a group of former disgruntled persons allege that a company misclassified its workers. But on the other hand, classifying a person as an employee will raise the cost to consumers in many situations when the worker is not an employee and thus, the increased cost to the consumer for no good reason.

But some wonder if there is some room for compromise in this system. The question is whether there is some sort of a new middle ground that works for everybody. Forcing all companies to use these old constructs (employees or independent contractors) may not quite be the right thing for the worker and for the growth of the economy. After all, the answer to decreasing employment is not to get more people deemed as misclassified.

One answer, of course, is that the gig economy should be destroyed if it can’t follow existing labor laws. These legal protections have been put in place for the protection of workers and have evolved over a century and surely were not accidental. Others call for change where parts of the sharing economy could self-regulate, with oversight from the government. Others have supported creating a third category of worker that falls between an independent contractor and employee, which would allow companies to give their independent workers some benefits without fear of being sued for treating them as employees.

Lawsuits are a big, visible threat to the gig economy, but even if none are successful, there’s another, slower-burning problem that will corrode the gig economy if left unresolved. It’s a problem that gets worse every time a worker completes hundreds of jobs via a platform with nearly unanimous perfect reviews of his work, is let go and then the person becomes disgruntled and there is nothing that the company could ever do to win him back as a dedicated service provider.

In my humble opinion, the most important thing a corporation can do is to have an experienced lawyer perform a full exam of your corporation to see if it is properly classifying its workers/service providers. Do not wait until you are sued or the government performs an audit. By that time, it is too late to do anything other than damage control. The most important thing a person can do before they take a job, is to determine whether they will be classified as an employee or an independent contractor. Go into the job with your eyes wide open, knowing what your benefits and rights are based upon who you are being classified. Speak up and ask questions and make a fully informed decision before taking the job. Don’t cry the blues later on because you were fired and failed to do your homework before taking the job. Finally, the most important thing is what the government can and should do. This means to stop the audits and put aside the money grab for the moment. Take the time to involve leaders and stakeholders in each major industry that straddles the line between hiring employees and utilizing independent contractors. Figure out a way to make the line clearer for businesses and help them understand their potential legal liabilities all while another last option is pursued. That option is to bring the same leaders and stakeholders in each major industry together with the government regulators to figure out a way to find a middle ground that works for everybody. Utilizing old constructs of what it means to be an employee or an independent contractor will not work when analyzing the new gig economy. We have to come up with new constructs and figure out a way for the companies of the nation to know its legal rights and responsibilities all while giving the independent contractor some benefits that they ordinarily would not be entitled to under the current system.

There is middle ground and finding that middle ground will be a better solution for the worker, the business and the economy in general. To do otherwise is to be trapped by dogma, which is living life with the results of other people’s thinking. 

TNC’s ARE DRIVING THE TAXIS INTO EXTINCTION

Transportation Network Companies (TNC) are companies that use online-enabled platforms to connect passengers with drivers. While connecting passengers with drivers is nothing new in the for-hire vehicle (“FHV”) industry, the use of high tech software to do so is a more recent phenomenon. The TNCs initially sparked controversy with the FHV industry because TNCs came into the marketplace, especially in New York City (“NYC”), and operated illegally for such a long period of time. During this period of time, when the TNCs operated without license and without being subject to regulation, gave them an unfair advantage. Regulations, especially in NYC, are costly and very burdensome. Some regulations are good because they protect the public, but others are nothing more than bureaucratic red tape that is created and used to justify the existence of certain people who are employed by the governmental regulatory agency. In NYC, the Taxi and Limousine commission (“TLC”) has become an albatross crating regulation upon regulation, much without any need or justification. These regulations place the traditional FHV’s (car services, luxury limousines, clack cars, etc.) in a world in where they are not permitted to operate outside of. When Uber first hit the scent in NYC, they claimed to be a technology company and not a transportation company. Time has proven that Uber and other TNC’s are surely transportation entities, albeit very sophisticated ones. But the TLC regulators in NYC bought into the Uber Kool aid and let them operate for so long and without any restrictions to the point that once they came under the regulatory umbrella of the TLC, they already created a massive network of users that is virtually impossible to duplicate. Putting aside, for the moment, that the TNCs have billions of dollars to literally buy drivers, subsidize rides for passengers and pay of politicians (oh…sorry…I mean donate to their political reelection campaigns). The lack of regulation of the TNCs and the unconscionable delay of the TLC in regulating the TNC’s created an unfair competitive advantage that, at this point in time, has caused the demise of the taxi industry in NYC. The taxi industry deserves some fault in their demise because they refused to innovate by embracing new technology and/or because they refused to see that technology would one day be used to provide a similar but better service that would eventually lead them down the path of the dinosaur (i.e. extinction). I focus this piece on the effects of the TNCs upon the taxi industry and not the rest of the FHV industry in NYC. I do this because while the TLC does regulate all FHV’s, the NYC government has a massive financial interest in the taxis and since the advent of the automobile, the taxi medallion was sold to investors with the virtual guarantee that money would be made. Today, the City of New York and its elected leaders have turned their backs on the taxi owners and the banks and credit unions that lent money to the medallion buyers. They are all failing and the City of New York takes the hands-off approach, not because they want the free market the rein and work out the kinks, but because the elected leaders have a financial interest in seeing the TNCs prevail. Remember, TNCs bring in a massive amount of money via sales tax. While TNC’s provide transportation in areas of New York state where less than desirable and plentiful transportation was previously available, the focus of this piece is on the NYC market because taxi medallions in NYC are like no other taxi in the world.

No one can deny at this point in time that TNCs generally have shorter wait times, cheaper prices, and increased convenience, aspects that appeal to consumer preferences. But keep in mind that the cheaper prices are mainly due to subsidies from each TNC that artificially lowers the cost of the trip. Once the taxis and other FHV’s are driven out of the market, what do you think the TNC’s will do with their prices. If you think they will keep prices the same, you are sorely mistaken. Also, increased convenience is due to the fact that TNCs can afford to pay driver subsidies. These subsidies put more money directly in the pockets of the FHV drivers. Once the taxis and other FHV’s are driven out of the market, what do you think the TNC’s will do with their driver subsidies. If you think they will keep paying subsidies to drivers after the marketplace for competition has significantly decreased, you are sorely mistaken. Once the driver subsidies are gone, the drivers may seek alternate jobs b3cause as it is now, some drivers are actually making a bit more than minimum wage. The benefits of driving for a TNC are illusory……..but the public simply ca not yet see the forest from the trees. TNCs have billions of dollars to burn and will keep burning them until the competition is driven from the marketplace. When competition is significantly lessened or extinct, then a monopoly is created. Remember, the U.S. Supreme Court broke up Standard Oil over 100 years ago because monopolies are a bad thing.

Since the emergence of the TNCs, the taxi industry fought to increase TNC regulation, but has done little to create innovative technology and had done nothing to modify its service to appeal more to consumers. Why stand in the street like an idiot and wait to hail a cab when you can use your smartphone, which you were already probably using, to virtually hail a cab, but instead of hailing a yellow cab, the public is virtually hailing an Uber.

In NYC, the night takes on a different meaning. Dinner turns into drinks, drinks turn into the club, and the club turns into wherever the night ends. Instead of spending an arm and a leg on metered city parking or waiting to hail an overpriced taxi, partygoers now catch a ride with Uber and/or Lyft. The TNCs appeal not only to partygoers, but also a wide range of other groups including families, businessmen, and travelers. An innovative blend of technology, transportation, and low-cost convenience, Transportation Network Companies (TNC) appeal to the interests of all people with a smartphone, which is virtually everyone. TNCs utilize three major technologies: GPS navigation, smartphones, and social networks, each serving a distinct purpose. GPS navigation systems provide ride efficiency in both distance and time, smartphones allow for convenience and accessibility, and social networks build trust and accountability for both the drivers and the riders. These companies operate similar to a taxi service, however they differentiate in that TNCs use online-enabled platforms to connect riders to. Providing a service called “ridehailing”, the user-friendly apps operate with only one click, locating not only the location of the potential rider, but also the density of drivers nearby and the wait time for the closest driver. They also provide driver information and a method of contact in order to arrange the one-time ride. The payment system is simple—price is calculated with respect to speed and distance, and customers are billed directly, with receipts sent via email. Convenient and fast, these apps remove stress from both the driver and the rider, providing a very strong incentives for riders to switch from taxis to TNCs.

However, accompanying all their success, TNCs confront controversy and outrage from the taxi industry. Even though TNCs promote their service as a way to fill up empty seats in passenger cars, they function similarly to a taxi service, and as such, they are a massive threat to traditional taxicab drivers competing for the same consumer base. The biggest complaint the taxi industry has is that TNCs operate without proper regulations, avoiding the licensing costs, driver insurance, standard employee training, and routine background checks that taxi drivers are subjected to. Taxi drivers argue that since TNCs and taxis serve an almost identical purpose, they should have the same restrictions and costs. This argument surely makes a great deal of sense. But the law does not always keep up with the times and the law will always be behind advances in technology. As such, legal action against TNC’s and the government relators have failed. In the end, TNCs have acted as a price and quality substitutes for taxicab service and thus have lead us all down the path of elimination of the taxi industry.

Similar in method of transportation, TNC services follow a point-to-point route of travel; therefore these services are often perceived as entrants in the taxi market. However, there are contesting opinions on the debate between taxicabs and TNC services. Supporters of the latter service claim that TNCs such as Uber and Lyft fulfill a previously unmet demand of quick and convenient mobility, as TNC services require as little effort as the tap of a button. This opinion suggests the consumer base of TNCs is not identical to that of traditional taxicabs. Instead, people entered this transportation market specifically due to the unique and convenience of app-based mobility. In opposition, critics claim that TNCs serve identical roles as taxi drivers, but without proper regulations that are used to counteract negative externalities such as “job misconduct” in taxi services. While some may believe TNCs and taxicab companies operate differently, I believe in equality and that TNCs should be regulated the same as other FHVs. To do otherwise may not be illegal, but it is surely a distinction without a difference. My prediction is that in the long term, TNCs will be fatal to the taxi industry, acting as a substitute and not a complement.

Regulations are used to be favorable for taxi drivers. Generally speaking, government regulation is implemented because it is demanded by the regulated industry and provides favorable gains for the industry. Economic regulations in taxicab markets exist because of the presence of negative externalities such as air quality, traffic congestion, and asymmetric information. With an unlimited amount of taxis, quality is bound to decrease which is bad for the consumer and incentivizes taxi companies to cut corners when it comes to costs such as vehicle maintenance. Favorable to cab companies, government regulation theoretically allows for higher fares than those that would exist in the free marketplace. Regulation of Taxis and other FHV’s is fine, but when all other FHVs are heavily regulated and TNCs are not regulated or regulated with minor disruption, then there will be an oversupply of drivers and the devaluation of taxi licenses. This is exactly what happened in NYC.

While it still claims to be simply an app-based technology rather than a transportation company, Uber is essentially a modernized version of the traditional taxi. Operating free of regulations, Uber and similar companies compete against the taxi industry at a lower cost, making each ride cheaper for the consumer and more profitable for the business. The increase in supply makes each taxi medallion license lower in value and each taxi driver less profitable.

By nature, TNC apps have an advantage due to accessibility. With the exception of upfront costs such as the purchase of a smartphone device, these transportation apps are free to download and easy to use. In order to reach a driver, a rider simply opens his app and taps “set pickup location.” The app uses GPS services to locate the exact location of a smartphone, send the location and contact information to the nearest driver, and notify riders of the remaining time before a car arrives. Fast, reliable, and efficient, TNCs take the guesswork out of transportation. One of the top reasons people use a TNC service is the ease of payment. TNC’s provide an added convenience by allowing consumers to pay directly from their phones. At the end of a trip, the rider is billed directly to a preset card in the app, and both parties are ensured that payment has been received. For some, this method of payment is definitely preferable, however it is less attractive to others. The perception of these services is likely to be linked to the use of technology, and younger populations associate technology with efficiency. Older generations who have not grown up in a technological world are often less trusting of online payment methods, generally find it more convenient to pay manually at the end of a trip, with the option to use alternative forms of payment. But the baby boomers are getting older and older and the millennials are soon going to be running the major corporations of the world.

At the very least, TNCs have provided consumers with the freedom of choice. These companies expanded quickly and have made an impact within a matter of years, however this impact is not solely positive. Although TNCs have the potential to improve welfare for some individuals, it is likely to be at the expense of others. To gain a thorough understanding, it is important to weigh the costs and benefits associated with the eventual demise of the traditional taxicab and the taxi driver.

While my opinions on the impact of TNCs on the taxi industry is not conclusive, it does lean towards one particular outcome. The combination of minimal regulation, low prices, short wait time, and certain preferences gives TNCs an enormous advantage over taxis. And although TNCs have come under fire recently, the barriers to entry have been and remain relatively low. Additionally, the new age of technology refuses growth to taxicab companies, who have made few technological changes throughout the years. Despite their success, TNC’s continue to find new ways to innovate. Recently, Uber introduced UberPool, a carpooling services that allow riders to share rides and split costs with others traveling a similar direction. Uber has also introduced Uber for Business and UberRush, each with features that appeal to different demographics. Assuming that TNCs continue to function under current circumstances, I predict they will drive out the taxi industry.

The taxicab industry is heading towards extinction; but I believe that certain modifications could change its direction. First, regulation for TNC must be the same as other FHVs. Without the same level of regulation, taxicabs and TNCs are competing for a similar consumer base on uneven playing fields. Next, taxis must improve their technology and communication methods—an update that is long overdue. By evolving with the general population’s interests, the taxi industry is more likely to be successful. It would be beneficial to create an app similar to those created by TNCs. Lastly, the taxi industry must seek innovative ways to re-recruit riders. Taxis have the advantage of time and experience, and unlike TNCs, they have been around for over a century, surviving through the darkest economic times. In order to stay competitive with a company like Uber, taxi companies must be innovative and strategic in their methods.

Since their inception six years ago, TNCs have already made a significant impact on the taxi industry. These companies entered the market without the restrictions and regulations that serve as barriers of entry for traditional taxicab drivers. As a result, this advantage allows TNCs to operate with lower costs, and therefore provide better prices to consumers. Like all other service-oriented industries, the transportation industry is reliant upon consumer demand. Riders will always choose the service that provides them with a higher utility based on individual preferences. For transportation, the top three preferences are variations on speed, convenience, and low pricing. Weighing the evidence, I predict that TNCs will eventually cause the taxi industry to go the way of the dinosaur. Despite the odds, traditional taxicabs do have the power to stay competitive as long as changes are made. Unfortunately, the odds of such change being made is minimal, if at all. The elected leaders in NYC and New York State are heavily in favor of TNC’s and governor Cuomo’s budget bill that legitimized Uber all across New York State will cause the demise of taxis throughout the state. Time will tell, but one thing I believe for sure is that while the needs and desires of the marketplace created an opportunity for TNC’s, the elected leaders of NYC and New York State have turned their backs on traditional FHV operators. And remember, these FHC operators in NYC who are now facing foreclosure and extinction are the ones who provided transportation in NYC at a time and place in history when it was not so pleasant to do so. (i.e. remember the crack epidemic of the 1980’s and the scene on 42nd Street before Rudy Giuliani came to town). Also, many traditional FHV operators are immigrants who came to this country to live out the American dream. For decades, immigrants lived out the American dream and used their taxi medallions to pay for their kids to go to college. Now, these same immigrants are facing foreclosure of their taxi medallions and financial ruin, all because the NYC regulators failed to do what they were supposed to do in the first place, which is to regulate for-hire vehicles, including Uber. The regulators failed in their jobs and the effects of such failure, whether good or bad, will not be fully known for decades to come.