The gig economy is getting some pushback from workers who claim that they’re actually employees rather than contractors, and thus deserve some of the rights normally afforded to workers. Notably, Uber has lost such a case in England, and in 2013, the Eleventh Circuit Court of Appeals ruled against an employer based on six criteria:
- does the employer exercise control over how the work is performed?
- does the employee risk profit or loss depending on his/her managerial skill? (Note that key word managerial. Not technical, but logistical and supervisory.)
- does the employee provide materials and equipment necessary for the job?
- does the service provided require a special skill?
- how permanent is the presumed working relationship?
- to what extent is the service provided a core element of the employer’s business model?
No legal case is a clean 100% slam-dunk; that’s why we have lawyers and judges. But look at this list and think about the lives of adjunct teachers.
- The college sets the curriculum, often sets a lot of the course content (especially for lower-division courses), sets the time and location and number of students.
- The teacher’s contract is renewed based primarily on showing up, lack of complaints, and student performance. Is this a managerial skill or a content skill, or something other altogether? Not too much different than the criteria for Starbucks baristas, after all.
- The teacher does not provide the campus, the classroom, or the learning management software. The lab teacher does not provide the lab equipment nor the experimental materials. The music teacher does not provide the instruments nor the music stands nor the CD player.
- The teaching of upper-division specialty courses by one-off adjuncts requires a special skill: contract law, say, or clarinet performance. The teaching of lower-division general education courses is much more commodity-based, with thousands of people in the Boston metropolitan area who could provide freshman comp or a western history survey.
- Again, the professional who stops in and teaches a specialized course every so often is really a la carte. But lots of schools have armies of reliable adjuncts whom they turn to over and over and over for those core classes.
- Classroom teaching is the fundamental product of the higher education business model.
Call me crazy, but I think that rather than fighting for better stipends for adjuncts, unions would be better served by filing a federal suit claiming employee status for a sizable proportion of adjuncts.
Just for fun, here’s the Form SS8 that the Internal Revenue Service uses to determine contractor or employee status for tax purposes. Fill it out and see what you think.