If you do the work, does it matter what you’re designated?

The California Labor Commissioner recently ruled that an Uber driver was an employee, not an independent contractor.  The chairwoman of New York’s Taxi and Limousine Commission took the opposite view.  The issue is now being considered by more than one US court, with some Uber drivers suing for employee status in order to gain extra rights and benefits.  TaskRabbit, Lyft and AirBnB may soon face similar demands.  The law, it seems, is not clear, opening up the opportunity to fiddle with definitions and thereby shape employment reality.

The so-called “freelance economy” is not the only story challenging our conception of what it means to be an employee.  Before Uber came along and disrupted everything, 88% of taxi drivers were already contractors.  FedEx and McDonalds have recently been accused of misclassifying thousands of workers in order to avoid labour law requirements, taxes and benefits.  Microsoft did something similar in the 1990s.  In the UK and elsewhere, laws are frequently enacted and amended to address the tax implications of professional workers turning themselves into limited companies which are then hired by their former employers.  Over 1,500 BBC workers, including Jeremy Paxman and Anne Robinson, were found to be using service companies, saving the broadcaster from paying national insurance contributions.  Zero-hours contracts have become a toxic issue in British politics.

Governments need to be able to collect payroll tax, but if tax codes are well crafted it should be irrelevant whether it is paid by the employer or the worker.  If Uber is forced to designate its drivers as employees and start paying social security contributions, then they will simply pay the drivers less.  This should have no impact on the take-home pay of law-abiding drivers who have been paying their own self-employed taxes and levies.  As the Economist puts it, “conventional economics says the burden of a tax cannot be altered just by changing which party writes the cheque.”  The same could be true for pension contributions and health insurance: there’s no reason in a well-functioning market why the sensible freelancer can’t make the same provisions as an employer from their higher wage packet.

As new business models proliferate and go global, national lawmakers will struggle to keep up.  So what should they focus on?  Probably not the labels.  People need stable paid work, pensions and insurance against misfortune; governments need taxes.  So long as these can be achieved in one way or another, it may not matter whether we are employees, contractors, franchisees or freelancers.

Is a false memory a true memory?

Fans of crime fiction and keen observers of the law courts will be familiar with the idea of False Memory Syndrome (FMS). Witnesses and crime victims make statements that turn out to be untrue — not, it seems, because they were lying, but because they genuinely seemed to remember something that hadn’t happened.  In quite a few cases, these false memories appear to have been suggested by psychotherapists, counsellors, police interviewers and other professionals seeking to help troubled individuals remember difficult circumstances.  So serious have the resulting miscarriages of justice been that victims of FMS have set up the False Memory Syndrome Foundation and the British False Memory Society.  Examples of false memories of sexual abuse are discussed in this article.

As this is a blog devoted to competing truths, one might think false memories need not concern us.  They are, surely, by definition not true.  Yet in a fascinating Radio 4 documentary, Past Imperfect, FMS expert Professor Elizabeth Loftus challenged this basic conception of false memories: “Memory does not work like a video-recording device, where you just record the event and play it back later.  It’s a little bit more like a Wikipedia page, where you can go in there and change it… but so can other people.”  All memories are “reconstructive”, because our brains aren’t designed to capture every detail of an event, but rather to recall the broad brushstrokes and then fill in the detail in a plausible manner.  Do you really remember what your daughter was wearing and which way she was looking when she spoke her first word? Even if you can picture it, you may not be right.  Inevitably, most memories will include some distortions, which means false memory is not black and white: some memories will be more accurate than others, but a false memory is as real as any other memory you hold.  It is a fragment of your mind and therefore a kind of truth.

Certainly, false memories have real consequences.  Several researchers have shown they can reliably implant false memories in the lab, making their guinea pigs believe they have seen or done things — even in the very recent past – which they have not.  This can lead to significant behaviour modification.  For example, a subject implanted with a false memory of getting sick from eating turkey became significantly less keen on the meat.  Some researchers suggest this kind of false memory could be deployed to steer us away from poor nutritional choices: if you can be convinced you were once made ill by fatty, sugary foods, you may be more likely to choose fresh vegetables in the future.  Would you rather your child had obesity or a few benign false memories, asks one advocate.  Needless to say, this is a very slippery slope.

False memories, like other competing truths, can fundamentally shape our realities — and could be used to manipulate our beliefs and actions.  Whether or not you view false memories as “true”, they are manifestly real enough to take seriously.

The least untruthful answer

Official portrait of Director of National Inte...

Official portrait of Director of National Intelligence . (Photo credit: Wikipedia)

James Clapper, the US director of national intelligence, was asked in March, whilst under oath in Congress, “Does the NSA [National Security Agency] collect any type of data at all on millions or hundreds of millions of Americans?”.  He answered, “No, sir.”

The recent revelations of ex-NSA contractor Edward Snowden suggest this was a straightforward lie.  But was it?  Clapper has since said that he “responded in what I thought was the most truthful or least untruthful manner”.  The phrase has been much mocked, but was he in fact offering a form of the truth?  As senior intelligence officers aren’t supposed to lie to Congress, it’s a very important question.

This is how the congressional transcript goes:

Senator Wyden: “Last summer the NSA director was at a conference and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, ‘… the story that we have millions or hundreds of millions of dossiers on people is completely false.’
“The reason I’m asking the question is, having served on the committee now for a dozen years, I don’t really know what a dossier is in this context. So what I wanted to see is if you could give me a yes or no answer to the question: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper: “No, sir.”

Wyden: “It does not.”

Clapper: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”

Clapper’s defence is that he was referring to the putative “dossiers” that Senator Wyden mentioned in the first part of the question.  It is true (we are told) that the NSA does not hold detailed dossiers on millions of Americans.  It does (we now know) record at least the communications metadata (numbers called, call duration etc) for millions of Americans, but it doesn’t listen in on their calls or read their emails.  Clapper offered a metaphor of a vast library of data on Americans, for which the NSA only kept a record of book numbers, not their contents: “What I was thinking of is looking at the Dewey Decimal numbers of those books in the metaphorical library.  To me, collection of a U.S. person’s data would mean taking the books off the shelf, opening it up and reading it.”

So the issue becomes one of definitions.  What do we mean by “collect”, “dossiers” and “data”?  Whether or not you think the DNI was lying to Congress depends on how flexible you believe the meanings of these words can be.

What’s interesting about this case is that the truthfulness of the response (“No, sir”) is determined by how the question that came before might reasonably be interpreted.  As long as people disagree about the question, Director Clapper can maintain he was offering a form of truth in his brief answer.