No, we were not dancing wildly this week on the WC Hot Seat. We were not hunting for frogs or flounder with a pointed stick. We were discussing the practice of short-term jobs.
April 21, 2021, brought another (the 17th) rendition of the Workers' Compensation Hot Seat. To say it was an animated conversation understates things a bit. We had two powerhouse guests from the American workers' compensation community. Professor Michael Duff brought his "Blue collar," Teamster shop steward, and progressive perspective. William Zachary brought his management background, legislative reformer experience, and workers' compensation passion. Each also has deep experience in the academic side of workers' compensation. They were a dynamic duo regarding the challenges of a gig economy and interrelationships with workers' compensation. Bob Wilson and I barely got a word in edgewise.
The program started with a realization that defining what "gig" means is itself a challenge. The term is used often in the press, some would suggest at times indiscriminately. The takeaway, from my perspective, is that there is nothing new about "gig" employment. For decades, people have been alternative ride service providers, babysitters, handypersons, yard technicians, and more who perform various tasks "off-book." There was always some degree of concern about the nature of the relationship (employee, contractor, casual) with these folks. There seems some consensus that the technology of our App-driven world has merely accelerated this labor method and thus exacerbated the need for some discussions about it.
Bob Wilson made an excellent point regarding the broader concern of independent contractors (a more long-term version of the same non-employee). The implication of misclassification hung in the air, but was not raised per se in the conversation. I have written about it before. See Misclassification - Is It in Trouble in Florida? (2014); Misclassification - What is it? (2015); and Misclassification and Regulation - Will Government be Nimble? (2015). There are challenges presented by those who avoid the protections of workers' compensation, to their personal financial gain and probable comparative advantage in competitive pricing.
The Hot Seat progressed past these definitional points to a discussion of both regulation and perception. Professor Duff noted that any gig solution must be accomplished transparently. Otherwise, he cautions, that the labor side will be difficult to engage for support and participation in that solution. He conceded that there is similar doubt about how workers' compensation laws generally are motivated and enacted, but that is a larger picture than this Hot Seat anticipated. Mr. Zachary stressed that some solution must come and that the volume/severity of injuries occurring in populations not covered by workers' compensation will undoubtedly stimulate discussions and change because otherwise, they are a taxpayer challenge. He oft repeated, "nature abhors a vacuum."
The discussion diverged a bit from the "gig" to a related topic when we were focused on change and transparency. This issue is essentially who will sit at that table to have these discussions? More pointedly, who will speak for the injured workers, or workers generally? There was mention of organized labor as well as attorneys. However, there seemed some skepticism, with suggestions that some may have misaligned financial incentives for behaviors regarding the vulnerable workers. There was consensus on one point, any process focused on addressing the gig concerns has to include those workers.
I was reminded of a couple of parables as the conversation continued. As we voiced realizations about the challenge of defining the gig, of prioritizing, of motivating change, of getting a group to sit down and go to work, there was some sense of the enormity of such an undertaking, the complexity of such an undertaking, and the potentials for failure. I found myself wondering quietly if anyone has the wherewithal to both get this party started and see it through.
The first proverb that came to me is Confucius: "The man who moves a mountain begins by carrying away small stones.” In other words, let's get started instead of focusing on how big it is. One of the panelists suggested that we "not try to eat the whole elephant in one bight"; there is merit to that. The other parable in my mind though was "The Starfish Story," which presents a youngster striving to save many beached starfish. Ridiculed for attempting to save them, he is told by a seasoned citizen: "there must be tens of thousands of starfish on this beach. I’m afraid you won’t really be able to make much of a difference.” In response, the kid picks up yet another and puts it back in the sea, saying with a smile “It made a difference to that one!”
There is no doubt that workers' compensation is a difficult subject. Discussions are often perspective-driven, self-interested, and acrimonious. Regardless of how one feels about the manner in which this legislative orchestra was composed, in the end, there will be injuries to workers. We cannot regulate the question of whether there will be bills to pay as a result. We may regulate only who will pay and under what circumstances. In the end, as I noted in 2016, Someone Has to Pay.
Another thought that crossed my mind was stimulated by Professor Duff's mention of rights generally and their foundational status in much of what we discuss in the law, a constitutional concern as a predicate. What he did not add, and what bears mention, is that rights are virtually never absolute, whether you label them "fundamental," innumerate them, exalt them, or even if you "hold these truths to be self-evident." They simply cannot be made absolute.
Our rights are in constant conflict with government powers and unfortunately the rights of others. I tell my students that rights are like a pie. We have but one, and every piece you eat is one that I cannot. We are, like it or not, in competition. I have a right to the quiet enjoyment of my backyard, and you have the right to have Twisted Sister come bellow in your adjoining backyard at 200 decibels (150 decibels is generally enough to burst your eardrums). In this illustration our individual rights conflict. But, one of us might recruit the government to support our preference, and that would add government power (state action) to this challenge, in favor of one and opposed to the other. Almost all protection and recognition of rights is subject to the fact that there has to be inherent compromise in the process. That truth is immutable and inherent in our human nature.
Mr. Zachary touted the solution of surcharges and coverage which is the hallmark of the Black Car Fund. I have written about this organization in The Gig Economy - Can it be Socialized (2018) and shortly thereafter Gig Economy Post - Redux (2018). The Black Car has a couple of things going for it. First, William Zachary is a fan, and having a scholar like that endorse your idea is a phenomenal advantage. Second, Professor Duff is not a critic, though he has questions about details and implementation decisions, he is not a critic. Third, it is not hypothetical and proposed, but a working model that is out there enjoying success and proving it can work. If it is merely a starting point, it is admittedly still a starting point.
The Hot Seat ended with some critical points. There were divergent views expressed on employment, rights, and even the role of government, some liberal and some conservative. People are different. There is an opportunity now to seize the day and brainstorm some ideas to build a better array of potential outcomes from injury, perhaps not utopian but better. Notably, there was consensus on some points despite the very different perspectives that were represented. We've proven that collective and collaborative discourse is possible. Now can we find some time to sit down and really talk?
