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Uber Class-Action Case May Hinge On What the Drivers Want

Posted by timothy on from the not-to-put-too-fine-a-point-on-it dept.

New submitter shanemccarthy writes with a story at Forbes that lays out a non-intuitive factor in the ongoing class-action suit over alleged labor law violations filed in the name of Uber drivers. Namely: how Uber drivers see themselves in relation to the company. While some drivers consider themselves, or would like to be considered, employees, and accrue the conventional benefits of employee status at a large company (and Uber, for all its crowd-sourcing, disintermediating origin story, is large enough to garner a valuation in the billions), a considerable number of the drivers do not want to give up their status as independent contractors. The rules of class action lawsuits, though, mean that if Uber's drivers are classed as employees, those who would like to remain independent won't have that option -- so the company is lining up examples of drivers who would seem by no one's definition to be employees, and who want to keep it that way. See also this earlier story about workplace classification for these drivers and others in non-traditional work arrangements.

11 of 88 comments (clear)

  1. Actor's agent is also an employer? by willworkforbeer · · Score: 2, Interesting

    The agent lines up work options, the actor decides to take it or not.

    - Actor pays her own expenses
    - Actor works whenever she chooses (or not)
    - Actor gives a percentage of her earnings to the agent for successful gigs.

    Is the agent her employer?

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    1. Re:Actor's agent is also an employer? by kamapuaa · · Score: 5, Interesting

      Drivers don't really have the option not to take rides...they have to accept 90% of rides offered, or they're out of Uber. Uber also doesn't let drivers see the routes they're going to take ahead of time, just where the pickup locations are. Uber also sets prices that the drivers are going to work at.

      So going with your analogy, imagine if the agent told the actor, "in order to remain an actor, you're going to work some unknown jobs at specific locations I give you, and I've decided you're going to do this work for 20% less than you received last time, and your only recourse it to quit." It sounds like a W-2 job to me.

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    2. Re:Actor's agent is also an employer? by Type44Q · · Score: 2

      Drivers don't really have the option not to take rides...they have to accept 90% of rides offered, or they're out of Uber.

      Don't be stupid: if they don't want to take rides, they have the option of not signing-on to the system.

    3. Re:Actor's agent is also an employer? by Goldsmith · · Score: 2

      This is a silly analogy, actors are unionized and the actor-agent relationship is mediated by the union, just as the actor-employer relationship is. Working through the union is such a big part of acting culture that Ronald Reagan ran it for a while. ... if you are going to make an acting analogy, Uber is more like SAG, than a super-agent. Sure, there are other unions an actor could join, but most actors are going to make the most money working under SAG rules. The difference here is that the actors get a vote in how SAG is run.

    4. Re:Actor's agent is also an employer? by gnupun · · Score: 2

      Is the agent her employer?

      In 99.99% of the cases, the public doesn't know the name of an actor's agent. S/he is just a middleman doing some specialized work like contract price negotiation.

      When you book a taxi, you choose the taxi based on Uber's reputation, and not on the driver's reputation. This is completely different in the actor's case where you don't care about the agent's reputation as much as the actor's reputation.

      Uber handles all these roles:
      a) agent of e-taxi drivers
      b) marketing and selling e-taxi services
      c) billing and payment processing for passengers and drivers
      d) hiring and firing taxi drivers

      The scope is much bigger than just an agent. Uber is just like any other employer except its employees come and go as they please, and work irregular hours compared to 9-to-5 workers.

  2. % whois llrlaw.com by tlambert · · Score: 2

    % whois llrlaw.com ...
    Registrant Organization:
    Registrant Street: 100 Cambridge Street, 20th Floor
    Registrant City: Boston
    Registrant State/Province: Massachusetts
    Registrant Postal Code: 02114
    Registrant Country: United States
    Registrant Phone: 6179945800
    Registrant Phone Ext:
    Registrant Fax:
    Registrant Fax Ext:
    Registrant Email: ssimpson@llrlaw.com ...

    % lynx llrlaw.com ...
    Welcome to Lichten & Liss-Riordan, P.C.
    The Labor, Employment & Class Action Specialists
    Lichten & Liss-Riordan, P.C. is a plaintiffs’-side employment and union-side labor law firm, whose attorneys have achieved national recognition for their work representing employees and unions in wage and hour, discrimination, and other employment-related litigation. ...

    So.

    Is it an ambulance chaser that's trying to assemble a class for a class action lawsuit?

    Not sure. But indications from the original link are that they are not stating the primary plaintiffs, they aren't stating a docket number, and they aren't stating the percentage they will be taking of any settlement.

    They also, as madsenj37 has previously pointed out, made claims on forced class membership based on a misinterpretation of the provisions of the Fair Labor Standards Act.

    But it will be fun to sit back and watch them go fishing in deep pockets that don't exist in terms of Uber not yet having IPO'ed, but the timing is a bit coincidental, isn't it?

    1. Re:% whois llrlaw.com by tlambert · · Score: 4, Informative

      I'm sorry, what is that supposed to be telling us? What do you think you added to the conversation?

      A couple of things:

      (1) There isn't actually a class action lawsuit yet, since there are certain legal disclosures which must be made in order for it to legally qualify as a class action lawsuit. Among these, is going to a court, and getting a registered class.

      (2) It's a solicitation for business; the article attempts to make it look like Uber drivers spontaneously banding together, but the domain name is registered to a lawyer at a Boston law firm. The Boston law firm, incidentally, went to the trouble of anonymizing who registered the domain where the domain contact from the lawsuit site has their email address, but they forgot to do the same thing for the lawsuit site.

      (3) If you want to unionize Uber drivers, which would have long term benefits for the Uber drivers (assuming the courts hold them to be employees; the case in question applied only to a single person, not all Uber drivers, as a class), then by all means, attempt to unionize them. Just don't try and backdoor it as if this were a collective bargaining situation, collect a single class action payday, and then leave the drivers high and dry.

      (4) They lied about opt-out for the class, rather than opt-in.

  3. Re:Precedent by Spazmania · · Score: 4, Insightful

    Typically "when is a contractor an employee?" hinges on three primary factors:

    1. Who sets the hours? Company? Employee. Worker? Contractor.

    2. Paid by the task? Contractor. Paid by the hour? Employee.

    3. EIN on the 1099? Contractor. Social Security Number on the 1099? Employee.

    The IRS has a page describing the myriad other factors that are considered, but if answers to the three above all agree with each other, that's generally what you are.

    http://www.irs.gov/Businesses/...

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  4. Why does it have to be one or the other? by LogicLoop · · Score: 3, Interesting

    Years ago, I worked for an IT consulting company that gave its workers the option of being full employees (with a standard benefits package including 401K, health insurance, paid time off, etc.) OR contractors who received no benefits, but a significantly higher wage. The client paid the same rate either way, the workers got to choose which arrangement worked best for them, and the consulting company (presumably) got their cut ... a true win-win.

    I'm sure the trade-offs with Uber aren't exactly the same, but I still don't see why they can't offer their workers more than one option.

    1. Re:Why does it have to be one or the other? by Danielsen · · Score: 2

      I'm fine with upper middle class professionals trading some financial risk, with the prospect of earning more money by being an independent contractor.

      But I don't like this being used to generate a class of working poor that sits many hours in the car, in order to get some rides, earning (on average) much less pr. hour than the minimum wage.

  5. How about common sense? by jopsen · · Score: 2

    One of the things people seem to forget is the "common sense" argument that labor laws are here to protect employees.
    If you try to make an organizational-construct where by the small people (who needs this protection) is denied status as employee, you are working against the spirit of the law/regulation.
    It's common sense to argue that the regulation was meant to protect your "contractors".

    So all the technical arguments about hours, paid by task/hours etc. might not be important at all.

    Ideally, though regulation could be clarified to avoid lawsuits like this.