Unprotected: Freelancing in Portland Lacks Safeguards From Workplace Discrimination

This week's cover subject, James Luu, lost his job selling sex toys when the company where he contracted was bought by a rival—one that doesn't allow men to sell its products. Luu's job is unusual. But the lack of workplace protections is common.

The problem for James Luu is one that affects up to one-third of American workers, according to surveys by the Brooklyn-based Freelancers Union, which advocates protections for contract workers.

"There are so many protections that exist in employment that just don't exist for freelancers," says Caitlin Pearce, director of membership engagement for the union. "We know that discrimination against gender is a big one."

That makes the question of who's an employee and who's a contractor one with high stakes.

"Here's the rub: Technically, the employment laws only cover employees," says Clarence Belnavis, a partner with Portland and Seattle law firm Fisher & Phillips, noting that in a case like Luu's, freelancers can be considered employees and protected by emploment law "if the majority of what they sell is from one company."

The state decided recently that Uber drivers may have the civil rights and other protections of employees because the workers and the business are dependent on one another.

The same logic may apply to Luu. But there are few guarantees for Luu or any other contractor or freelancer.

Government contractors are forbidden to discriminate on any basis. Some states, such as California, forbid discrimination against contractors, says lawyer Sonia A. Montalbano of Portland's Elliott, Ostrander & Preston firm. Oregon does not.

"If [Luu] was not an employee, it would appear he has no recourse against the company," Montalbano says.

The state labor bureau says it can only help employees.

"If an individual is truly a contractor and not misclassified, they're on their own," says Charlie Burr, spokesman for Oregon Bureau of Labor and Industries, noting some businesses try to avoid accepting the restraints of the law and pass workers off as freelancers where possible. "We see it with barbers. The issue comes up in the tech sector, with exotic dancers, very frequently with the construction sector."

The "gig economy," as it has come to be called, has long included strippers, seasonal farm hands and temp office workers. But as Portland has opened its doors to Silicon Valley's app-based ventures, with Uber now cruising our streets and Airbnb renting out available housing, the ease of finding work and employing freelancers has reached new heights.

There are no official economic statistics that can provide a full picture of how many in Portland are freelancers, say economists with the state's Employment Department and the Office of Economic Analysis.

But some indicators suggest Portland is more dependent on contractors than any other city in the country.

The 2015 Freelancers Union survey found that Portland "has a higher percentage of independent contractors (49%) than any other top metro surveyed in the U.S. (compared to 36% national)" by its broad definition, which includes moonlighting, working temp jobs, freelancing full-time or owning a small business. The union puts the number at a half million freelancers in the Portland metro area.

"If half the people on the boat don't have life jackets, the odds of drowning go up," says Luu's attorney, Lake Perriguey, noting freelance workers in Portland have "a lot less rights and a lot less recourse in the event of problems."

Willamette Week