Limo Firm To Uber: You Misclassify Your Drivers As Contractors, Which Is Unfair (arstechnica.com)

An anonymous reader quotes a report from Ars Technica: A Southern California limousine company sued Uber in federal court earlier this week, alleging violations of state unfair-competition laws. While a company suing Uber is not new, the proposed class-action lawsuit appears to rely on a recently decided California Supreme Court decision that makes it more difficult for companies to unilaterally declare their workers as contractors, which effectively deprives them of benefits that they would otherwise receive as employees.

In that case, known as Dynamex, the court came up with a three-part test to figure out whether companies can assert contractor status or not. The new case is called Diva Limousine v. Uber. Some legal experts say that the earlier decision in Dynamex may bolster an argument in this new case around unfair competition that has previously been difficult to win on in federal court. In short, Diva Limousine just might succeed where other federal lawsuits have failed.

Comments

This did not work out Well For Microsoft Either

[TechnoGrl]

TECHNOLOGY; Temp Workers At Microsoft Win Lawsuit

or Fedex...

<a href="https://www.oasisadvantage.com/blog/risky-business-misclassifying-workers-may-be-more-costly-than-ever"> risky businessnmisclassifying workers may be more-costly-than-ever </a>

or Mears Limousine

<a href="https://www.orlandosentinel.com/business/os-mears-lawsuit-settlement-20180905-story.html">Mears settles lawsuit with hundreds of chauffeurs who claim they were underpaid </a>

or Apple

<a href="http://www.mondaq.com/unitedstates/x/217738/employee+rights+labour+relations/Staffing+Agencies+Using+Independent+Contractors+Face+Misclassification+Liability+And+Expose+Clients+To+Undue+Risks">Staffing Agencies Using Independent Contractors Face Misclassification Liability And Expose Clients To Undue Risks </a>

Re:This did not work out Well For Microsoft Either

[TechnoGrl]

sigh.... why me can no do html any more :(

Re:This did not work out Well For Microsoft Either

[Uberbah]

Looks fine to me, check what your posting it as (drop down next to Preview button)?

Re:This did not work out Well For Microsoft Either

[PPH]

Contract the html out.

Re:This did not work out Well For Microsoft Either

[ClickOnThis]

Somehow your less-than and greater-than delimiters were posted as their character-entity-reference equivalents in html (e.g., ampersand-lt-semicolon for less-than.) I saw this by examining the "quote parent" text. Not sure how it happened, but the relevant keys on my keyboard appear to work fine for me.

Re:This did not work out Well For Microsoft Either

[TechnoGrl]

Of course :) .

It;s been ages since I posted a comment here - thanks :)

Re:This did not work out Well For Microsoft Either

[LinuxIsGarbage]

sigh.... why me can no do html any more :(

Upper right: Click username-account-Posting-Comment Post Mode

I usually set Plain Old Text so I don't have to deal with line breaks.

Re:This did not work out Well For Microsoft Either

[Daralantan]

No, it has to be full time employment.

Re:This did not work out Well For Microsoft Either

[hey!]

The fact that other employers lost their cases has almost no bearing on this case. In a lawsuit, specifics matter. In this case, everything depends on exactly what business Uber is *really* in.

Uber's position amounts to this: it is NOT in the business of providing rides, it's just mediating a transaction between people who need rides and people who are willing to provide rides. Were that true, the drivers would be contractors. But their actions contradict that position in a number of ways.

First, Uber sets the prices riders will pay. If this were a transaction between the rider and the driver, the driver would offer his services at whatever price he wanted.

Second, Uber brands the drivers' cars; if you drive a luxury sedan it gets branded and sold to the rider as an "Uber Black". It sets minimum standards for cars. You can't pick up an Uber passenger in an old jalopy. If they were connecting riders to contractors, they could reasonably offer the riders a choice of how new or nice a car they were willing to settle for.

Finally, it supervises and disciplines its drivers. If your rating drops below a certain level, they will call you in for a meeting or deactivate you. It'd be one thing if they deactivate drivers with very low ratings -- drivers who are dangerous or threatening. But you can get in trouble if your rating drops to 4.6 on a scale of 1 to 5.

All this stuff suggests an effort by Uber to create, control, and market a consistent customer ride experience. In that case they're not just mediating transactions between riders and drivers, they're in the business of providing rides. That's what makes Uber drivers employees.

Re:This did not work out Well For Microsoft Either

[oh_my_080980980]

This and that a UK Court said the same thing.

Re:This did not work out Well For Microsoft Either

[zidium]

I used to be able to bold text directly, without changing any settings.

This must be a new change.

I could also include links, like this one to Slashdot, but not as an AC.

I *never* worried about line breaks, either.

Good

[Anonymous Coward]

Deliberately mis-classifying people as contractors is one of the biggest scams perpetrated on workers.

There should be an even simpler test:

If you're doing something, on a regular basis, that is part of a company's core business, you're an employee, not a contractor

Uber's business is providing rides. If you're a driver providing rides, you're an employee.

Re:Good

[Rick Zeman]

That's step A) of California's test. I find that argument impossible to argue with, but I'm not a bribed politician.

Re:Good

[olsmeister]

Connecting riders with drivers. But not just any drivers. Uber's drivers.

Re:Good

[Anonymous Coward]

But it was touted as a "ride-sharing" app. It's not sharing, it's selling

It's enabling a market to exist that's unfeasible without them (selling rides on an individual basis wasn't really possible before their app). Just like short term room rentals (outside of hotels) wasn't possible without Airbnb.

These companies aren't being clever, they are openly flouting regulation.

Re: Good

[Anonymous Coward]

Uhh, bullshit.

If you pick your hours and bring your own tools, you're a contractor. If you show up on your employers hours and use his tools, You're an employee. If you can turn down tasks, you're a contractor, if you have to accept tasks, you're an employee.

Uber is a shifty company, but their drivers are clearly contractors. They bring their own vehicle, they pick their hours, and they can turn down fares. They're clearly contractors. Limo drivers, on the other hand, work,when they're told to, drive the company's limo, and get fired immediately if they decide not to take the passengers.

Re:Good

[AuMatar]

If the drivers were able to price their own rides and market their own brand through the app, then you'd have a point. If they're taking the prices they're told and are treated as "an uber" rather than "BillyBob's Ride Co", then they're employees. Guess which one it is?

Re: Good

[Nidi62]

So the guy that pulls a morning shift at McDonalds and stocks shelves at night at Walmart isn't an employee of both companies?

Re:Good

[AuMatar]

I know plenty of people with 2 jobs. Sometimes at competitors. They're still employees.

Re:Good

[ShanghaiBill]

This story is a RRSM (regularly recurring Slashdot meme), so lets get some facts straight. The IRS publishes a 20 point checklist to determine if someone should be an employee or contractor.

Every time this story comes up (about once a month) we get people claiming that ONE of those criteria is all that matters. This is nonsense. You need to look at all 20, and even then it isn't always clear.

There is also often an assumption that it is always "better" to be classified as an employee, and that Uber is screwing people buy not doing that. That is misleading. There are advantages and disadvantages to being either an employee or contractor.

Here is the list:

1. Profit or loss. Can the worker make a profit or suffer a loss as a result of the work, aside from the money
earned from the project? (This should involve real economic risk-not just the risk of not getting paid.)
2. Investment. Does the worker have an investment in the equipment and facilities used to do the work? (The
greater the investment, the more likely independent contractor status.)
3. Works for more than one firm. Does the person work for more than one company at a time? (This tends to
indicate independent contractor status, but isn’t conclusive since employees can also work for more than one
employer.)
4. Services offered to the general public. Does the worker offer services to the general public?
5. Instructions. Do you have the right to give the worker instructions about when, where, and how to work? (This
shows control over the worker.)
6. Training. Do you train the worker to do the job in a particular way? (Independent contractors are already
trained.)
7. Integration. Are the worker’s services so important to your business that they have become a necessary part of
the business? (This may show that the worker is subject to your control.)
8. Services rendered personally. Must the worker provide the services personally, as opposed to delegating tasks
to someone else? (This indicates that you are interested in the methods employed, and not just the results.)
9. Hiring assistants. Do you hire, supervise, and pay the worker’s assistants? (Independent contractors hire and
pay their own staff.)
10. Continuing relationship. Is there an ongoing relationship between the worker and yourself? (A relationship can
be considered ongoing if services are performed frequently, but irregularly.)
11. Work hours. Do you set the worker’s hours? (Independent contractors are masters of their own time.)
12. Full-time work. Must the worker spend all of his or her time on your job? (Independent contractors choose
when and where they will work.)
13. Work done on premises. Must the individual work on your premises, or do you control the route or location
where the work must be performed? (Answering no doesn’t by itself mean independent contractor status.)
14. Sequence. Do you have the right to determine the order in which services are performed? (This shows control
over the worker)
15. Reports. Must the worker give you reports accounting for his or her actions? (This may show lack of
independence)
16. Pay Schedules. Do you pay the worker by hour, week, or month? (Independent contractors are generally paid
by the job or commission, although by industry practice, some are paid by the hour.)
17. Expenses. Do you pay the worker’s business or travel costs? (This tends to show control.)
18. Tools and materials. Do you provide the worker with equipment, tools, or materials? (Independent contractors
generally supply the materials for the job and use their own tools and equipment.)
19. Right to fire. Can you fire the worker? (An independent contractor can’t be fired without subjecting you to the
risk of breach of contract lawsuit.)
20. Worker’s right to quit. Can the worker quit at any time, without incurring liability? (An independent contractor
has a legal obligation to complete the contract.)

Re:Good

[oh_my_080980980]

And a Court in Great Britain said Uber drivers were in fact employees not contractors. Funny how that works, real court cases.

Re:Good

[oh_my_080980980]

People make less working for Uber.

Re: Good

[oh_my_080980980]

Tell that to a court in the UK.

Re:Good

[ShanghaiBill]

And a Court in Great Britain said ...

A court ruling in the UK has absolutely no bearing whatsoever on whether Uber drivers are contractors or employees in Southern California.

private cause of action???

[mschaffer]

I don't know much about CA law, but not all statutory violations give rise to a private cause of action in civil court. Does the CA's "unfair labor" laws allow this? I wouldn't be surprised if this one gets thrown out.

Re:private cause of action???

[phantomfive]

This case is complex, and depends so heavily on technicalities of various laws and decisions that it's hard to understand without quite a bit of domain expertise. However, the article has this quote from an actual lawyer:

Veena Dubal, a law professor at the University of California, Hastings, emailed Ars. "It seems to raise the same arguments re: unfair competition that have been raised by many cases before it. Misclassification is a sub-issue in this case. If another court finds conclusively that Uber drivers are misclassified for wage purposes, then it will become relevant."

Re: private cause of action???

[phantomfive]

I can't help but thinking this is a really confused idea of how the law works.

As an engineer, I like contracting

[Sim9]

I find it way preferable to take contract gigs than FTE (full time employee) gigs. Granted, the FTE gigs typically offer an order of magnitude more pay, but all that stock/equity is inevitably tied up in a year or more of service. But as a contractor, you get paid exactly for the hours you put it and can leave whenever you want. They may not let you go to the employee movie days, but I've always had the nicest bosses as a contractor (probably because they're good bosses, but they're also aware senior contractors can walk if treated very poorly).

Best of all, the IP agreements are actually sane because you're not an employee. I hate when FTE contracts try to claim all of your side projects as the company's inventions, sometimes even retroactively.

Anyway, I know that contracting isn't a good fit for everyone, but I hope this doesn't end make up making it harder for those who do like the contract lifestyle.

Re:As an engineer, I like contracting

[oh_my_080980980]

*Sigh* Because an engineer working as a contractor is the same as an Uber driver. Nice one Potsy...

Re:Employees don't work for 2 firms, generally

[phantomfive]

Second, it's pretty clear from those who have worked at Uber when they decide to "choose their own hours" they somehow don't get as many customers

Is that clear? I can believe it happens, but what sort of algorithm is Uber using here? Anyone working less than 10 hours a day gets lower priority?

Degree of control

[FeelGood314]

An employee has very little control of what they do. In Canada the measure of employee vs contractor considers:
who sets the hours
who sets the specific tasks and how they will be done
freedom to work for other people
who provides the office and equipment

Uber drivers have complete freedom in all those thing except the specific tasks (even then, they could chose the route). Most of the "contractors" I know in high tech fail all those tests.

Re:Degree of control

[CanadianMacFan]

Contractors (at least with my experience in computer consulting in the mid-2000's) in Canada also aren't permitted to stay with a specific company for longer than 39 weeks at a time. It doesn't matter if it's with one or more contracts. They must then be away for at least 13 weeks before going back.

This is only true with the private sector. With the federal government for some reason I've seen people sign 5 year contracts and be at the same position for over 20 years as a contractor with no breaks on the contract. A company and person doing that in the private sector would have the CRA on them in no time telling them that the person was an employee.

I'm Rich!

[SuperKendall]

1) Hire cab.
2) Claim driver is now my employee, since they cannot be contracting out rides.
3) Fire driver, sell company cab assets.
4) Profiteering!

Working for Uber = You are a Full Time Employee?

[Daralantan]

I've posted about this before, but I've always wondered when we see governments, employers, etc saying that Uber's employees need to have full benefits and be treated as employees..... But are they saying if you drive at all? Or is this *IF* you drive 32+ hours a week? I've known a few people that drove for Uber and they would only do 6-12 hours a week or so. I know others do a lot more, but it still seems odd to me. Are these complaints specifically for Uber drivers who work full time hours, or literally anyone who has ever driven for Uber?

Re:Typical

[jbengt]

Looking for a quick ride and looking for a Limo are not the same thing. These are not actual competing businesses.

Not every limo is a stretch limo driving partying teenagers to their prom. Some are simply nice cars taking you from the airport to your hotel, for which Uber would be considered competition.

Re:Typical

[drinkypoo]

Not every limo is a stretch limo driving partying teenagers to their prom. Some are simply nice cars taking you from the airport to your hotel, for which Uber would be considered competition.

In English (and almost all other languages), a limousine is a stretched car. It's only in German that limousine means sedan, not sure why they got that so badly wrong but they sure did.

Lack of compensation.

[mjwx]

An employee has very little control of what they do. In Canada the measure of employee vs contractor considers:
who sets the hours
who sets the specific tasks and how they will be done
freedom to work for other people
who provides the office and equipment

Uber drivers have complete freedom in all those thing except the specific tasks (even then, they could chose the route). Most of the "contractors" I know in high tech fail all those tests.

Contractors also receive significantly higher pay to compensate for the lack job security and beneifts like paid holidays and sick days afforded to salaried workers. They're also paid significantly more as they have to pay their own tax in most countries unless the employer and contractor agree to have the employer pay tax on their behalf. That's where the contractor argument falls down for Uber. They want to pay them like min wage slaves... but treat them as if they were highly paid contractors.

Re:Typical

[Green Mountain Bot]

Not every limo is a stretch limo driving partying teenagers to their prom. Some are simply nice cars taking you from the airport to your hotel, for which Uber would be considered competition.

In English (and almost all other languages), a limousine is a stretched car. It's only in German that limousine means sedan, not sure why they got that so badly wrong but they sure did.

From the same article:

"In the U.S., Canada and Australia, 'limousine service' (also known as 'car service') is the process of pre-booked hire of any car with a driver. The car is usually a luxury car, but not necessarily a limousine."

Re:Typical

[Green Mountain Bot]

Uber Black is essentially indistinguishable from a limousine service.

Re:Typical

[MooseTick]

I live in the U.S. While most people would define a limousine as "a stretched car", they would also include limousine service as nearly any taxi-like service that isn't in a marked taxi. I've gotten several pickups to/from airports advertised as "limousine service" and its almost always a luxury car or SUV, not a 30 foot stretch vehicle with a sunroof and wet bar.

Re: This did not work out Well For Microsoft Eithe

[alcmena]

Agree with parent, GP is full of shit. I've been doing 1099 contact work through a sole prop for nearly 10 years. Nothing Obama did changed that. So far, nothing Trump did affected it either.

https://youtu.be/ffgTKltQtQg

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