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Brazil Judge Rules Uber Drivers Are Employees, Deserve Benefits (reuters.com)
An anonymous reader shares a Reuters report: A Brazilian judge ruled that a driver using the Uber ride-hailing app is an employee of the San Francisco-based company and is entitled to workers' benefits, adding to the global debate over labor rights for drivers on the platform. Uber said on Tuesday it would appeal the decision by Judge Marcio Toledo Goncalves, who issued the ruling late Monday in a labor court in Minas Gerais state. Goncalves ordered Uber to pay one driver around 30,000 reais ($10,000) in compensation for overtime, night shifts, holidays and expenses such as gasoline, water and candy for passengers. The consequences for Uber, if the ruling is upheld, could be far greater if more drivers follow suit and if state and federal regulators and tax agencies start treating it, as the judge suggested, as a transportation company rather than a tech firm.
More likely they will pull out of any markets that dictate this. They can't remain profitable doing that.
But this seems clearly different.
There are certain expectations of an employee, like working a set number of hours per month, or performing a fixed amount of work.
An Uber "employee" can decide exactly how much work to do each month. They are completely in control. (as far as I understand it)
Also, no one told the guy to buy candy. I can buy all the candy I want and say it's for customers, but if I go to my boss to reimburse me, he will probably pay me back since he is a pretty good guy, but still. My point is that if I keep making random purchases with no prior agreement at some point he will tell me to stop it.
Totally agree, I do part time driving for both popular companies and would not be able to do so if I had to meet specific hour requirements like an employee would. I wouldn't even want to try honestly. There is huge freedom in switching on/off driver mode. This is just gov money grabbing probably from either people planted by taxi businesses or a bunch of people that are miserable with their lives anyway.
Minimal regulations? Nice euphemism for shamelessly breaking the law.
"It's such a fine line between stupid and clever" -- David St. Hubbins, Spinal Tap
Other than the hundreds of industries that have thousands, if not millions, or independent contractors?
When I hire someone to clean my gutters, am I on the hook for their healthcare and matching their 401k?
“Common sense is not so common.” — Voltaire
Enlighten us.
When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
The way I see it, Uber isn't a taxi company. Uber provides a platform as a service allowing service providers (ride share drivers) to find customers (passengers). The service providers might count as independent taxi drivers and thus be taxi companies themselves.
If Uber drivers are Uber employees, then Uber is providing the taxiing service, and is a taxi company. That's a lot different.
In other words: Uber is basically a phone book and telephone rolled into one, with a listing of cabbies and their rates circulated periodically--although in this case the cabbies have agreed to take current market rates and pay a share of revenues to Uber for publishing their contact information in the circular, and the circular goes out pretty much continuously, every second. If Uber employs the cabbies, then Uber is the cab service provider.
If you were looking for independence, you want Uber. If you were looking for employment, you want Yellow Cab Company.
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I'm pretty sure if you're employing people in different countries you have to abide by their labor laws. You can't just push American labor laws on other countries. Cost of doing business there uber. Want to be a global multi-national company? You have to pay to play.
Or maybe we should just all agree on some global labor standards but I bet you America wouldn't like that one bit.
We'll make great pets
Minimal regulations? Nice euphemism for shamelessly breaking the law.
I think by "minimal regulations" he means that it's an easy thing to get into, unlike becoming an actual cab company driver.
The Daddy casts sleep on the Baby. The Baby resists!
Someone comes up with an idea that's pretty good, is designed for people to work part time to pick up some cash, minimal regulations, etc. and it's a pretty good thing for everyone all around.
Except there are regulations around offering yourself for hire for personal transportation. Just because you own a boat doesn't mean you can take up commercial fishing part-time to make some extra cash either without following proper regulations and licensing. If you want a part-time job to make some extra cash wait some tables, tend bar, be a bag boy at a grocery store, or work swing shift in a bakery. Just wanting to make a little extra money doesn't justify ignoring local, state, or federal laws and regulations.
The only thing necessary for evil to triumph is for it to be pitted against a slightly greater evil
The way I see it, Uber isn't a taxi company. Uber provides a platform as a service allowing service providers (ride share drivers) to find customers (passengers). The service providers might count as independent taxi drivers and thus be taxi companies themselves.
Drivers can't set prices, can't turn down (too many) customers, can't drive whatever car they want, etc. Uber drivers aren't contractors.
The only thing necessary for evil to triumph is for it to be pitted against a slightly greater evil
from the summary:
"A Brazilian judge ruled that a driver using the Uber ride-hailing app is an employee of the San Francisco-based company and is entitled to workers' benefits, adding to the global debate over labor rights for drivers on the platform...."
Did anyone notice the contradiction? The submitter reports a Brazilian judge requiring that mandatory entitlements be given to Uber drivers, then within the same sentence instead refers to "workers rights".
Entitlements are the opposite rights. An entitlement is prohibition of liberty; If the Uber driver is entitled to receive X dollars in compensation then the driver can not choose to work for less. A right is a grant of liberty; If I have the right to free speech then I can choose what to say without restriction.
Ceci n'est pas une signature.
If you only want them cleaned to your satisfaction - no. If you want them to wear gloves manufactured by your brother-in-law's company - yes. Any messing in the "how it gets done" is out of bounds unless it directly relates to the results. Sometimes there are grey areas - it's best to stay out of those or you could end up paying someone contractor rates and then providing benefits anyways.
Eu falo português.
“Common sense is not so common.” — Voltaire
Uber complies with state and federal laws. Local laws usually are silent on Uber until the Cab industry lobbies for changes.
See Austin TX. Urber was here, working quite well, people loved it. Taxi companies got one of their stooges on the city council to start passing regulations, Uber left.
THAT'S your fucking Precious Government.
When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
You mean how was my post relevant other than referring standard industry practices?
It may come as to a shock to the thousands of aspies on slashdot, but not every legal situations requires a formal mathematical proof in order to be supported.
“Common sense is not so common.” — Voltaire
It merely shows HOW STUPID the system of corrupt government corporate interaction is, and how the government takes any thing it touches and makes cost 10x as much.
Most of my friends cannot afford a taxi. Most taxis I've ridden in are disgusting. Uber, they can afford. And the vehicles are usually pretty nice.
Nearly EVERY taxi driver is a private contractor. A company owns the cabs, and the licenses. They then lease these out to the cabbies to drive. No benefits. No W2.
Second, why are these laws ignored? I work for a company on a government contract. We have dictated to us: where we sit, what machine we use, and when we have to be there for work.
"Specifying "you may only use DeWalt tools on this contract" can be enough to have your contractors qualify as employees."
But they're not specifying that. They're specifying that you need to have your own tools. And that they need to be contractor grade. You can't show up to work with a Black and Decker drill from Walmart and a battery that lasts 20 minutes. Nothing wrong there.
***
Let's get to the real crux of the matter, W2. I think we need to eliminate the distinction of W2 and contractors. I think we need to eliminate company provided benefits. Shift the entire benefit industry to groups. Trade groups. Regional groups. Whatever.
But let's have honest accounting. No more should our employers pay half the Social Security Tax. We should receive that money, and then we should pay the entire tax. Cause frankly, contractors get abused and the government is never going to protect the individual on those abuses. So let's end that distinction.
Most contractors don't set prices. They can accept the price or move on. Can't turn down too many customers. Well guess what, you can't go too many days without coding and remain a contractor either. Can't drive whatever car they want. Nope...you need to have a tool that meets a modicum of professionalism. Yes, you're a contractor...but when you go to meetings you are required to dress appropriately...or you lose the privilege of being a contractor.
But if I am the firm hiring the sub-contractors. Me saying that you have to show up to work and not be half-naked if you want to continue to be a sub-contractor is NOT outrageous. It's the norm.
If I work as a contractor through a management company and turn down projects, they're going to start paying someone else who actually wants to do the work.
And if I don't have the proper tools for the jobs, I don't get the jobs.
A 2 door car is not sufficient because the passenger is trapped until the driver lets them out.
A beat up junker isn't sufficient because passengers expect a car that will make it to the destination.
There's a very huge difference between not being available during certain hours and selectively saying "nope" to passengers.
Work Safe Porn
If they're Uber employees. Create a benefits package for Brazil. It can be utterly crappy and include pretty much nothing but a auto insurance discount.
Then mandate all uber employees have to be available from 8am to 6pm.
Most contracts give the client some control over "how it get's done". The contractor is being hired to perform a specific task, if I as the client have some stipulations then that is negotiated at the time the contract is signed.
Who provides and who decides the materials used? Who decides the hours to be worked? Can the work be done offsite or on?
All of these can be dictated by the client or left up to the worker and can have various degrees of bearing on whether they are employer/employee of client/contractor.
In most countries there is usually at least 5 or 6 primary criteria (often with several sub-criteria) for determining employee vs. contractor and the weights given to each are generally decided case by case.
Of course that's just my opinion...... you could be wrong!
You know people are becoming Uber drivers just so they can get women alone in their cars right? Surely there is something Uber could do to increase the barrier of entry for a driver and vet them a little bit. All they have to do is make it as hard or harder to become the operator of any other kind of private vehicle.
Laws are rules for the court, but merely a bottom bar to hit for life. Think beyond laws in your actions always.
How does it make any sense that Uber should pay a driver overtime pay when the driver is fully in charge of how many hours they work per day or week?
That makes no sense at all.
Where are we going and why are we in a handbasket?
Isn't all that secondary to the fact that they can work any hours you want, at any location they want, they provide your own tools, and they can turn down customers? I disagree with your assessment that they cannot turn down too many customers. They can turn down as many customers as they want by not signing in to the app. They can't sign-in to the app, mark that they are open for business, then turn down customers. But that's just being an jerk.
There's lots of professions where the fees are fixed. Consider this: If uber added a bidding process, so that prices aren't fixed, would that be enough of a change that they are now contractors?
The linked article didn't say what the basis for the decision was. And it only applied to one driver. It does not say they had to reclassify all their drivers as employees.
I think you're posting in the wrong discussion - because there's considerable regulation both when it comes to hiring labor and when comes to transporting paying passengers. Regulation that Uber has consistently tried to circumvent, first with their nonsensical "ride sharing" claims, then with their equally nonsensical "we're just a tech company" claims. The only people it's "pretty good" for are Uber's investors, because they collect all the profit and shove all the risk onto the drivers.
Drivers may not be "independent contractors" in the same way that a programmer might be (for example, depending where you live, you might only have one ride share service you can work for), but they absolutely are not regular employees.
They have 100% control over schedules, and a very low bar to getting hired (for many places, it seems like you just download an app, fill out some info, get a rudimentary vehicle inspection and an automated background check and you are ready to start driving...no need to actually demonstrate that you are a friendly person or a skilled driver). Maybe there needs to be some new legal framework for these people, but it seems absurd that a company should have to pay perks and benefits to a person that they have no direct authority over. All uber can do is remove your access to the platform. They can't tell you "work this shift" or "work this neighborhood" or "we are busy, you need to stay on another hour"...
It is almost like if you said that ebay was responsible for paying benefits to powersellers...Sure, ebay is in a position to cut off their livelyhood by banning them from the platform, and sure, for some people there might be no alternative viable market to hawking their wares on ebay, but nobody would ever call a powerseller an ebay employee.
Bottles.
Here in Brazil the vast majority of Uber drivers are so because the recession the country is going through destroyed the companies they worked for and they've been unemployed for several months without perspective of becoming employees again for a long time. It has literally saved many people from foreclosure and from being ejected given there's no barrier to entry: just take your car and go earn money.
If this rule sticks, guess who will be back in the queue for non-existing jobs?
Conservatism: (n.) love of the existing evils. Liberalism: (n.) desire to substitute new evils for the existing ones.
Uber's drivers are prohibited from subcontracting others to do multiple jobs for them at the same time, so uber is exerting too much control over them, causing the drivers to be employees.
File under 'M' for 'Manic ranting'
It's not being prided / getting miles for on call wait time / drive to call time / drive back to base after long ride time. Paper work / other admin time.
Also maybe big time drivers can bill for the oil change time / car cleaning time / etc.
Yeah well your problem is with the government failing to stimulate the economy then, not your government failing to allow Uber. Seems to be a common case in many countries.
Laws are rules for the court, but merely a bottom bar to hit for life. Think beyond laws in your actions always.
uber leasing cars / cell phone costs / etc are also issues.
Uber push for control with them renting out the tools needed for the job is not a good thing to have with contractors or even employees. Even said that you can rent ours or use your own is iffy. Other "contractors" have been forced to rent stuff like fedex like with there scanners.
There was a time when benefits were optional or rare. Then price and wage controls were introduced and the only way employers could attract good talent was to offer them "benefits". Now they are mandatory. Things might be better if people got more money and chose their own health plan outside of work just like car insurance. (Along with being able to buy across state lines and tort reform but that's a story for another time.)
For those who can read Portuguese: Sentença.
It's pretty good.
The judge says that according to Brazilian Labor Law (CLT), employee is "any natural person who provides services on a regular basis to an employer, under his or her dependence and on a salary basis", so the elements to recognize the employment relationship are: natural person (i.e. not a company - legal person), personal relation, regular nature of the relationship, onerosity (I've never seen this word in English, in this context means that there is payment for something) and subordination.
1. The driver is a natural person.
2. On the personal relation the main points the judge makes are: 1. That Uber requires previous registering from the drivers. The drivers have to send several documents, not have criminal antecedents, etc and, at the time, the driver had to pass an interview to be approved by Uber. 2. That the driver cannot give his account to another person in any way (rent, cede). He can only share his car with other uber approved drivers. In this point Uber defense was that the users cannot chose the driver, so it was not a personal relationship. The judge dismisses this argument by pointing out that the personal relation in question is not between the driver and the user, but between uber and the driver, just like the user doesn't choose the cook in a restaurant, but the restaurant chooses the cooks that will work for it.
3. On onerosity, the defense argues that the driver is paying uber, and not the opposite. So it is Uber that is providing a service to the driver and being paid. The judge dismisses this argument by pointing out that it is untrue. The facts he pointed are: there are several promotions where the user doesn't pay for the ride, but Uber still pays the driver; There are "promotions" where Uber pays the driver to be available, even if there are not enough rides; and the most important that the users pay Uber, Uber receives the payment, removes it's percentage e retain the rest, passing them along to the drivers at the end of the week. That shows that Uber not only mediates the businesses between driver and passenger but the opposite, receives for every service realized and later pays the worker.
4. On the regularity of the services, the judge points that it is a complicated matter, points some theories and ends up with pointing out that: 1. this driver was working regularly; 2. that if drivers are not available for long periods of time they are excluded from the platform; 3. that one of the drivers received an email threatening being excluded from the platform if he didn't make any rides in the following week. With this he points out that the defendant demands frequency from the drivers. Then he points that the non-eventuality of the relationship was even more evident by the theory of the ends of an enterprise. He questions what are the ends of the defendant? Is it a technology company that only makes the interface between people or a modern passengers transportation company? Then he gets the definition of a transportation service... It goes on for a while, it's late here...
5. On subordination he says it's the most important in the employment relationship. He says it is the most complex to identify. So its very long and I'm sorry. He talks about how the drivers cannot chose prices, cannot refuse rides, cannot hand out personal cards (I didn't know that), etc. Then he talks about how the control over the employees occurs in a different way nowadays, fact that was included in Brazilian law in 2011 (electronic means of control and supervision are equivalent to personal control and supervision he quotes from the law). He points that the control is diluted between the users and the algorithm, and that drivers are punished for being under 4.7 stars, or automatically terminated if under 4.4 stars or committing severe infractions (like handing personal cards).
With this he decided that there is an employment relationship, it's probably going to be appealed.
Good night.
Uber's business model is to pretend ride-sharing and car-for-hire are the same thing until some government or private entity challenges that obvious falsehood in court.
What about an open-source free app that simply connects drivers with riders in a distributed, non-centralized way, where any fees are negotiated exclusively and privately between each driver and rider, where no money goes back to the app writers and where they exercise zero control/restrictions over drivers? When it's simply individuals with no business like an Uber or Lyft involved at all? Would that be OK in your opinion?
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
While there are some Stockholm syndrome poor and middle class people who might balk, the majority of us WOULD like the health and safety regulations in place worldwide, mostly because it would be a barrier to the cost effectiveness of domestic firms outsourcing to foreign locations.
It's really those other countries who would object strenuously. In most of the developing world, the only competitive asset they have is low-cost labor. If you could legislate that away from them, they'd have nothing, no way to lift themselves economically. All of the education resources, all of the intellectual capital, all of the big markets... they're all in the rich world, especially the US and EU. We have every possible competitive advantage, including much higher per-hour productivity, the only thing they have is being cheap because their standard of living is so low.
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In many countries drivers for hire must have a professional driving licence and a professional car insurance. And don't give me the crap about the Uber insurance, it covers far less than even a private car insurance in several European countries. Feel enlightened already?
"It's such a fine line between stupid and clever" -- David St. Hubbins, Spinal Tap
To answer a simple question with another, would you be okay with alcoholics who have lost their license half a dozen times offering taxi rides on Craigslist, when they're driving a car with no license and no insurance? Would you expect minimum professional standards from a taxi service, or expect Joe Blow Consumer to do a full background check on Billy Bob for DUI's before getting into his car for a ride to the airport, least it be Joe's own damn fault for the ensuing car accident?
No.
Laughable.
No. That's you being a corporatist bootlicker, for a corporation that DGAF about you.
If you're not negotiating for your prices, then you're not much of a contractor: a person who produces results for a fee.
What you're describing is an employee, not a contractor. If your employer is setting conditions on what tools you may use to produce the results and a dress code, you're an employee.
Some countries have limits on working time, to stop employers abusing workers by paying them extremely low wages and then offering overtime to make it up. In other words, to stop exactly what Uber is doing.
const int one = 65536; (Silvermoon, Texture.cs)
SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
great loss for uber drivers and customers alike.
If you don't like conditions that Uber provides, don't freaking work for them!
That would cause without doubt untold suffering in developing world. You'd make all those people virtually unemployable. There's for example quite solid evidence that child labor laws in Bangladesh forced children out of sweatshops into prostitution and beggary. Hardly positive result.
It's sometimes difficult to grasp, but you cannot legislate prosperity. If you try to, you cause misery. Every. Single. Time.
Me saying that you have to show up to work and not be half-naked if you want to continue to be a sub-contractor is NOT outrageous. It's the norm.
That's still within the boundaries of "getting it done" as a form of risk management. A worker that shows up inappropriately clothed is at risk of being arrested or being kicked off site by a helicopter mom. That's similar to a requirement for a contractor to have proper insurance. The insurance doesn't affect the result of a typical job, but is does affect the result of a job that has gone wrong.
Also, as I said earlier, there are a lot of subjective areas to contract law in almost all jurisdictions. Since the penalty for imposing a restriction that isn't allowed is so great, it's best to steer very clear of the line.
To answer a simple question with another, would you be okay with alcoholics who have lost their license half a dozen times offering taxi rides on Craigslist, when they're driving a car with no license and no insurance? Would you expect minimum professional standards from a taxi service, or expect Joe Blow Consumer to do a full background check on Billy Bob for DUI's before getting into his car for a ride to the airport, least it be Joe's own damn fault for the ensuing car accident?
So what stops anybody from doing that now? I've seen ads on the local CL by individuals for ride-sharing in the local area before Uber/Lyft came along. With a driver-rating system that passengers can use to see what others thought of prospective drivers integrated into the OSS free app this can be mitigated greatly. Besides, Uber/Lyft are/were setting standards for drivers, but abolish them and you'll have just what you describe.
As others have pointed out, the current taxi system (at least everywhere in the US I've been, and I'm fairly well-traveled) is fundamentally broken and horribad in many ways and on many levels. Are you saying we're simply doomed, DOOOOMED! to suffer the existing broken, too-expensive, and corrupt system?
The current taxi system in many, many places, including where I live currently, is a 'private contractor' system as well. Drivers are not employees of the taxi companies, they simply temporarily lease a cab. The taxi companies don't do any screening other than checking for a valid license and maybe a basic check for outstanding warrants. Why is it that taxi drivers being 'contractors' is fine, but Uber/Lyft drivers are 'employees', other than being interpreted as such as a weapon to be used against ride-sharing?
AFAICT, Uber/Lyft actually screen drivers more stringently than the taxi companies do. Uber/Lyft vehicles are far and away better quality than typical taxis. Not everything needs to be controlled by the government, as often that control actually ends up degrading safety, utility, and efficiency.
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
Are users of Amazon's Mechanical Turk also Amazon employees? They can't set prices, but they can take work. In this case, the Uber Mechanical Turk allows clients to offer work (seek ride) and to provide that work (provide ride); the difference is that the client offering work (ride seeker) sets the price on Amazon's Mechanical Turk.
Neither of these lets the contractor set the price.
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To scale the sheer volumes of drivers to field the demand fares have during heavy events is not possible if everyone has to drive a black limousine and only work as a driver 30+/hours per week with bureaucratic registration regulatory license. Same thing goes for AirBnB and other gig / excess capacity platforms. So I respectfully disagree that ride share drivers should categorically be employees.
Analogy: Lots of beaches and pools have signs indicting swim at your own risk. Must all beaches provide life guards or disallow anyone to swim upon penalty of jail? Who's going to pay for the life guards? Why should skilled safe swimmers pay to subsidize risks of unwise, unskilled, or reckless people with poor swimming skills? The are community pools that do have full life guard staff, but it can not scale to all swim-able bodies of water.
If people want to hitchhike, and a platform makes it easier to match up parties - embrace it. That parties reputations are closely tracked and bad apples are proactively pruned, even better. Lyft pioneered it, Uber copied it, and now Waze/Google is joining the fray. If people want expensive, poor quality, unresponsive taxis and limousine service, well those business are still around and no one is stopping you from using those. But if you want affordable, demand based, agile transportation, or short stay guest rooms, or other sharing resources and you are a consenting adult who understands the term and conditions, let innovation ride and businesses evolve.
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