Uber Class-Action Case May Hinge On What the Drivers Want 88
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.
Precedent (Score:2)
Re:Precedent (Score:5, 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/... [irs.gov]
How about common sense? (Score:3)
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
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But I imagine that some judges won't allow you to out-smart the law, but who knows... maybe in America...
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I'm not a lawyer either, but I've paid enough to them over the years...
I would agree with you, few judges take a positive view on people who try and get clever with the law...
The law says what the Judge thinks it says, no more or less. Don't like it? You can always object or appeal.
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It's common sense to argue that the regulation was meant to protect your "contractors".
That doesn't make sense at all. The point of being an independent contractor (use your own tools, set your own hours, etc) is that you are a business selling business services to another person or company, with all the independence and control that goes along with self-employment.
The argument here is whether the drivers are employees, not whether someone who isn't an employee can get the benefits of being one sometimes and being independent at other times
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The subject is: class action lawsuit in the US. Just in case you forgot.
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3. EIN on the 1099? Contractor. Social Security Number on the 1099? Employee.
If you are getting a 1099, then you are a contractor. An employee gets a W-2. If you are getting a 1099 with a SSN on it, it could be that you are "self-employed" which allows you to use your SSN as your EIN. But for a very small price ($25 in my state), you can set up an LLC which will provide you much more protection of personal assets.
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Uber drivers are not paid under the table. If you drive for Uber, all of your rides are paid for by credit card, collected by the company, and dispersed to the drivers. Uber files a 1099 for all those payments, so the IRS knows about them. It is then the driver's responsibility to pay taxes on them.
Uber drivers sometimes receive cash tips, though not nearly as often as regular taxi drivers do. There is not currently any way to pay tips though the app; drivers are allowed to accept cash tips but prohibited f
Actor's agent is also an employer? (Score:3, Interesting)
- 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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Is the agent her employer?
I think once the agent begins automatically charging extra $$$ for every facilitated job in order to ensure that the actor does not attack the employee while working, such agent might become the employer. (Save Rides Fee) [marketwatch.com]
Also, doesn't Uber provide insurance to drivers now? This violates the "Actor pays her own expenses" part of the analogy.
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And give it time, if business is good, just like in early Hollywood other agents will appear -- as they have already done in China and India.
Uber actors make direct contact with customers like the movie actors.
Actors have exclusive contracts with their acting agent whereas Uber agent is more lenient, non-exclusive, can also work for Lyft.
Good actor has a large amount of work available, just like a productive Uber actor. Uber filte
Re:Actor's agent is also an employer? (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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And you can just go get another agent, Lyft for example.
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Or quit acting altogether, it is optional.
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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.
If you don't take enough rides (Score:2)
Uber just wants to get out of paying the employer expenses everyone else has to. As a society we've built our entire quality of life around our employers, so I can't see that ending well. Plus without trashing their employees quality of life their business model doesn't really work.
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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
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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-ta
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It seems to me that, if they were smart, they would be working to sell their company while it still has its high valuation.
piecework (Score:1)
for each "independent" driver Uber trots out, i show you a pieceworker who is serially unemployed. Uber requires many things of the worker (vehicle can't be "too old", conduct and dress standards, etc.), collects time and attendance data, maintains umbrella insurance for the worker, and issues paychecks. All work products remain the property of Uber. Uber is an employer, and the drivers are employees.
Car analogy... (Score:2, Interesting)
Uber requires many things of the worker (vehicle can't be "too old", conduct and dress standards, etc.), collects time and attendance data, maintains umbrella insurance for the worker, and issues paychecks. All work products remain the property of Uber.
Car analogy...
OK, I lied, it's not an analogy. It's specifically about cars.
This is exactly how the service departments work at automobile dealerships, down to the requirement that the mechanic provide a certain class of tools, codes of conduct towards customers, wear a dealership logo'ed coverall, collects time and attendance data (contractors are paid by hours worked in the contract, so this has to be collected), attendance data (reserving a bay is expensive, and you want contractors who are eager to be
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This is exactly how the service departments work at automobile dealerships, down to the requirement that the mechanic provide a certain class of tools, codes of conduct towards customers, wear a dealership logo'ed coverall, collects time and attendance data (contractors are paid by hours worked in the contract, so this has to be collected), attendance data (reserving a bay is expensive, and you want contractors who are eager to be present; you also have to collect this information to know how much liabilit
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Not quite sure how it works in the US, but there are all sorts of subtle rules in UK legislation that differentiate a "disguised employee" from an independent one-man company. Although the former is still treated differently from an employee with a temporary contract. The nature of Uber would put them into
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They are all pretty much hourly employees that I know, I know one who is salaried and I know none who are contractors. Where do you live? I deal with dealership mechanics all the time as cars are a hobby of mine. I own a fair number of cars and insist that they are in top condition so I even have a number of friends in the industry. I have not discussed the workings of their dealership with all of them but I have discussed the details with a fair number of them.
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% whois llrlaw.com (Score:3)
% 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?
Re:% whois llrlaw.com (Score:5, 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.
You presume too much! (Score:2)
This case hinges on exactly the same thing as all other cases, the judge. If patent litigation has revealed anything, it's that the law is exactly what the judge wants it to be.
Congress Should Decide (Score:1)
Congress should make a decision about which laws should apply: I think probably some laws about employees and some laws about independent contractors should apply.
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Congress should make a decision about which laws should apply: I think probably some laws about employees and some laws about independent contractors should apply.
The laws are already quite clear on this subject. Misclassifying employees as contractors is nothing new or "innovative". The only reason we're hearing about this is that the Uber founders were arrogant enough to believe that the law didn't apply to them because they were running their gypsy taxi service with new technology. But the law doesn't
Poor analogy (Score:2)
Did eBay tell you which item to list and when to list it? Did eBay set the price? Did eBay dictate that you couldn't be in your pajamas when you listed the item? Did eBay refuse to let you sign up because the item you wanted to list was old and looked like a piece of junk? Did eBay structure their platform so the only way your items get bids is if you spend 50 minutes of every hour logged in to eBay?
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In addition if you turn down an offer does eBay penalize you?
Are franchise owners employees of the parent? (Score:2)
How about common sense... (Score:2)
Consider also the case of a franchise owner of a restaurant like McDonalds or Subway..... Would this ruling potentially reclassify all of them as employees of the franchise parent?
I suspect not... franschise owners have employees and are not necessarily the "small man", this matters because the spirit of the law/regulation is to protect people who needs it.
Why does it have to be one or the other? (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.
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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.
Wait, what? (Score:2)
A bunch of people want to give up all the benefits of being an employee, in exchange for nothing? It's not as if Uber will be forced to make everyone work 8:00-5:00 if the lawsuit declares them employees. And it's not as if Uber can't split their workforce into employees and contractors by changing a few things. They just can't pretend their employees are contractors to avoid giving them employee benefits.
Not Employees (Score:2)
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If Uber's drivers are considered employees, Uber would simply have to get some kind of liability insurance. The cars could still be rented from a 3rd party (isn't that what ZipCar does?).
The biggest overhead would be needing an HR department and having to manage all that crap...but they could contract out for that part.
It would definitely increase their cost, because they couldnt screw over their employees as easily as they could contractors, but it would most likely be possible while staying profitable.
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also as an employee get paid the full IRS millage rate + at least min wage for all hours on the clock. Get paid for miles + time for long return trips.
and hours on the clock is time when you are open and waiting for a ride + the time to get to the ride when you are flagged down.
I call bullshit (Score:2)
I call bullshit on this. There are thousands upon thousands of companies out there whose employees work alongside contractors in the computing industry on the same projects. There is nothing in the law that dictates that if one person is an employee, all workers must be employees. Nor is the reverse true.
It is up to the company and the f
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You are wrong. The people they work next to are not contractors. They are employees of contracting houses. There is a big difference. I have worked as a 1099 before and as a 'contractor' for a contracting house. The 'contractor' things was not a 1099 gig, it was an employee/employer relationship.
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You are wrong. The people they work next to are not contractors. They are employees of contracting houses. There is a big difference. I have worked as a 1099 before and as a 'contractor' for a contracting house. The 'contractor' things was not a 1099 gig, it was an employee/employer relationship.
I'm confused. You say that there are no contractors, there are only employees of contracting houses. Yet you go on to say that you have been both a contractor (paid on 1099) and you have been a contractor (paid W2 by a contracting house).
Now you were probably an employee of your own contracting house when you were paid 1099. Either that or you had another employee/employer job. The government gets pissy if somebody somewhere isn't paying into the Social Security Ponzi scheme.
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As a 1099 I was a real contractor. I paid all my own taxes including SS. I have an EIN on file with the IRS which I use when I freelance and is used for these purposes. I have worked as an independent contractor, a 1099, and as an employee of a contracting house. When I was an employee of the contracting house I was incorrectly referred to as a contractor. I was not, I was an employee but not of the contracting house's client.
It isn't all that hard to grasp.
Employee - contractor checklist (Score:2)
Does the payer provide the tools and equipment for the worker to use, or does the worker provide his or her own?
How much ability, authority, or right does the payer have to exercise control (even if they do not they ever exercise it as such) over a worker concerning what work is to be done, and the manner in which it is done?
Does the payer assume responsibility for any regular operating expenses, or is does this responsibility fall to the worker?
Uber drivers are independant conractors. Obviously. W
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Uber drivers are independant conractors. Obviously. Why is there even any question?
There is a question because unlike independent contractors, they cannot:
Set their own rates.
Choose to turn down 99 out of 100 jobs if they so desire.
Work simultaneously for other organizations.
Choose the method by which they will perform the delivery. By car, rickshaw, train, or whatever so long as they do it within the negotiated time and for the negotiated price.
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1. Not really relevant... a payer can decide they are willing to pay any workers they can get for a particular job some certain set amount.... and if a would-be worker doesn't want to accept that amount, then they aren't obligated to do the work in the first place. That doesn't remotely make them an employee. At worst, it only makes them an unemployed contractor.
2. Again, not really relevant... if an independant contractor kept refusing job after job that he was being offered by some payer, there's e
This isn't non-intuitive at all. (Score:2)
The US has a long and deep history of low income workers being suckered into fighting against their own good in favor of powerful monied interests.
Sue People, and Allow Driverless Vehicles? (Score:2)
That's a whacked sense of symmetry.