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Limo Firm To Judge: Tell Us Whether Uber Drivers Are Employees (arstechnica.com)
An anonymous reader quotes a report from Ars Technica: Lawyers representing a Southern California limousine company that sued Uber last month over state unfair competition allegations have now filed a motion for partial summary judgement. If the filing is granted by the judge, the motion would substantially streamline the case and answer the vexing question: are Uber drivers employees or not? The proposed class-action lawsuit, known as Diva Limousine v. Uber, relies 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 the California Supreme Court case, known as Dynamex, that court came up with a three-part test, known as the ABC test, to figure out whether companies can assert contractor status or not: "(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity's business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business, the worker should be considered an employee and the hiring business an employer under the suffer or permit to work standard in wage orders." "The standard for summary judgement is that there is no triable issue of material facts. That seems to be the case here," says Professor Veena Dubal of the University of California, Hastings, which is just blocks from Uber's headquarters in San Francisco.
"Under Dynamex, workers are likely employees for purposes of minimum wage and overtime if they perform work that is within the usual course of the hiring entity's business. Uber drivers provide rides, and Uber is a transportation company that facilitates the provision of those rides. I have a hard time imagining how Uber can argue that there is a triable issue of fact here, although I am confident that they will argue that they are a software company. They have lost that argument in courts across the world."
In the California Supreme Court case, known as Dynamex, that court came up with a three-part test, known as the ABC test, to figure out whether companies can assert contractor status or not: "(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity's business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business, the worker should be considered an employee and the hiring business an employer under the suffer or permit to work standard in wage orders." "The standard for summary judgement is that there is no triable issue of material facts. That seems to be the case here," says Professor Veena Dubal of the University of California, Hastings, which is just blocks from Uber's headquarters in San Francisco.
"Under Dynamex, workers are likely employees for purposes of minimum wage and overtime if they perform work that is within the usual course of the hiring entity's business. Uber drivers provide rides, and Uber is a transportation company that facilitates the provision of those rides. I have a hard time imagining how Uber can argue that there is a triable issue of fact here, although I am confident that they will argue that they are a software company. They have lost that argument in courts across the world."
Try asking half the "contractors" in IT whether they have to show up at work at 9am or not. Most of them will quite obviously begin to cycle through the stages of grief when you point this out.
I'm not sure why you think those brief statements indicate that Uber drivers are employees rather than contractors. What you wrote has nothing to do with if they are contractors or employees.
>The driver's fares are set by Uber
Why can't I hire a contractor where I say how much I pay? That's usually part of the contract. It's most of the point of the contract.
>Driver's have to abide by Uber's code of conduct
Contractors have to conform to the requirements in the contract in order to continue the contract. That's the other half of the contract. "If you do some specific things (e.g. drive people from place to place) I will do some specific things. (e.g. pay you money)"
>Uber terminates drivers who break the code of conduct
Yes, that's how contracts work. If you don't abide by the terms of the contract, the contract is voided.
>Uber sets a minimum rating that the driver must maintain
I just covered this in my previous line.
>Uber provides the clients (riders) for the driver
So? This is how contracts work. If I contract a company to install an OS on hardware I can then provide them with hardware to install the OS on.
>The driver must pick up any rider assigned to them.
So? We've covered this already. As part of the contract they agree to pick up riders. Besides, this isn't even a requirement.
>The driver must drive the route the Uber app plots
So? If I say that I want the contract to install using physical media instead of a netboot, does that make them an employee?
>Uber sends recommendations for improvement to the driver
So? If I hire a contractor to maintain my yard, I can also tell them to use a string trimmer on a section that is too steep. That doesn't make them a direct employee.
Nathan Brazil?
Well, it has been almost a week since we last rehashed this topic, so let's do a review. There is no ONE criterium that makes someone a contractor or employee. The IRS has a 20 point checklist (listed below). Uber meets some of the criteria, and doesn't meet others. But it is a checklist, not a scorecard. So does that mean their drivers are employees? Answer: Maybe.
Also, it is not necessarily "better" to be an employee ... or a contractor. Employees tend to get more benefits in addition to their pay, but also tend to be paid less and have less flexibility.
1. Must the individual take instructions from your management staff regarding when, where, and how work is to be done?
2. Does the individual receive training from your company?
3. Is the success or continuation of your business somewhat dependent on the type of service provided by the individual?
4. Must the individual personally perform the contracted services?
5. Have you hired, supervised, or paid individuals to assist the worker in completing the project stated in the contract?
6. Is there a continuing relationship between your company and the individual?
7. Must the individual work set hours?
8. Is the individual required to work full time at your company?
9. Is the work performed on company premises?
10. Is the individual required to follow a set sequence or routine in the performance of his work?
11. Must the individual give you reports regarding his/her work?
12. Is the individual paid by the hour, week, or month?
13. Do you reimburse the individual for business/travel expenses?
14. Do you supply the individual with needed tools or materials?
15. Have you made a significant investment in facilities used by the individual to perform services?
16. Is the individual free from suffering a loss or realizing a profit based on his work?
17. Does the individual only perform services for your company?
18. Does the individual limit the availability of his services to the general public?
19. Do you have the right to discharge the individual?
20. May the individual terminate his services at any time?
I just checked and there was zero negotiation when you go to the online form to get hired as a uber driver. This is very clearly an employee application form.
Uber, in short, is a dating service (between drivers and riders).
Where are we going and why are we in a handbasket?
Maybe the concept of independent contractors should not exist without a state license.
So babysitters will need a license from the state?
Since this is a California labor law case, and labor law outside of civil rights and unionization issues still remains a matter of state law, that checklist means very little.
Instead, to prove that an employee is an independent contractor, an employer must show:
(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and
(B) that the worker performs work that is outside the usual course of the hiring entity's business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Otherwise known as the ABC Test. Does that mean that the drivers are employees? I'd take that bet.
If Uber was forced to classify it's drivers as employees, it would likely just shut it's doors and go bankrupt instead of play that game.
Good, if they can't afford the costs of being in business then they shouldn't be in business.
So you're all for a policy of privatize the profits and socialize the losses?
Of to put a finer point on it, if an Uber driver runs a red light and T-bones you, you're totally cool with receiving whatever the sale value of a totaled car and half a donut is as compensation since he doesn't have commercial liability coverage, Uber claims he's a contractor, and let's face it if he drives for Uber, he isn't wealthy?
If uber is providing the passenger some sort of insurance policy on behalf of the driver then the driver is not a contractor but an employee. Uber is providing the service to the passenger and uber is providing the tools of the trade-- insurance--- for the driver.
Some drink at the fountain of knowledge. Others just gargle.
Consumer protection in the U.S. is weak at best, even when fully enforced (which doesn't happen).
If they are independent contractors, they are only insured if they have personally bought commercial insurance.