I strongly disagree and think this is very open for debate. Drivers set their own hours and use their own equipment. They can even simultaneously use another app (ex. Lyft).
I really don't see how it constitutes an employment relationship. In fact, it seems to match all the typical characteristics of contractors.
If you have no bargaining power - you are not a contractor IMO.
There's no requirement to go into lengthy or customized negotiations to offer, accept or reject a contract.
The situations are not even comparable.
The driver cannot negotiate directly with the rider as you would expect an independent contractor to be able to do.
I have literally never seen that as a test, and it seems extraordinarily effective.
Many employees have a ton of leverage and do negotiate their compensation aggressively.
On the other hand, many contractors do very little negotiation. Ex. my dad works in construction and would frequently be told about a certain project where the pay was $x/hr for 1 week — take it or leave it (no negotiation).
I don't see how whether contracts are collective or individual is at all an effective test for differentiating contractors and employees.
There's another 19 prongs that have been used in the past to classify people who are employees as employees. I estimate Uber can only meet 7 or 8 of them, and I don't think that's enough to establish that the drivers are bona fide contractors.
Uber doesn't allow customers to choose a driver; the system assigns one to you. On the other hand, an eBay customer bids on whatever auctions they want to bid on, and they know the seller's identity beforehand.
With eBay, you can go "I had a bad experience with this guy before, so I'll look and see if anyone else is selling this item so I don't have to deal with this person again". With Uber/Lyft, you're stuck with "ugh, the system matched me with this guy, guess I'm going to have to constantly cancel and re-request until I'm matched with someone else" (for the record, I've only had to do this twice in the almost two years I've been using Lyft).
Plenty of Uber drivers never offer water or say "sir" but remain on the platform.
Isn't that the whole business of lawyers - interpreting the laws as they are written, not their intention?
"... But we agree with the decisions below in Silk and Greyvan that, where the arrangements leave the driver owners so much responsibility the investment and management as here, they must be held to be independent contractors.[14] These driver owners are small businessmen. They own their own trucks. ..."
Also, your comment about "The drivers' "businesses" are so integrated into Uber's product that there is no meaningful distinction that can be drawn there" is not a consistent litmus test since many industries depend on people "integrated" into their product. Movie productions hiring freelancers such as stuntmen, soundmen, actors, etc -- who are all "integral" to the product (the film). Or hair salons providing booths to freelance hairstylists. Those hair cutters are "integral" as well.
There are better arguments for reclassifying contractors as employees other than the "integral" test.
The Uber case can be distinguished...Uber actually owns the vehicles many of the Uber Driver's operate. (If you are an Uber driver you can have Uber finance you a vehicle). Further, very likely the truck drivers actually own a business entity separate and apart from themselves, I don't think you will find many Uber drivers being paid in the name of a business (not determiniative but a factor in many states).
The vast majority of Uber vehicles are owned by the driver.
Uber doesn't provide the financing. From their financing page (https://get.uber.com/cl/financing/)
"Each participating lender has set requirements for approval and certain items on your credit report may exclude you from eligibility"
Uber just partners with lenders and dealerships, and deducts the money on behalf of the lender.
In other words, the Uber drivers ("contractors") don't own their own equipment ("the car") rather Uber's partners name is probably on the title.
While I don't know the answer, should the evidence come out, do you think Uber is making money from their partners financing the equipment to the Uber contractors?
That's now how car financing works.
"Tools and Materials: The furnishing of tools, materials, etc., by the employer indicates control over the worker."
I think that fact that in some instances the company finances the very tools required by the contractor to perform - for this factor - suggests employee, I imagine you still don't.
Luckily from the sidelines we can watch as the various levels of government (federal, state and local) begin to figure it out for all of us. Already California Labor Commissions have ruled an Uber driver as an employee (which Uber is appealing to the CA Courts, so now we will have our first taste of their opinion) and per this article some state legislatures appear to be codifying drivers for TNCs as ICs.
https://get.uber.com/cl/xchange/ or just Google it, Uber certainly did begin leasing cars. The lease payments go directly to Uber's subsidiary.
>Uber gets either zero or very little kickbacks since Uber's primary motivation is getting drivers in nice cars on the road.
These drivers, as independent contractors, are supposed to provide their own tools/materials to perform, not finance/lease/rent the tools from the company to perform.
>The California decision was by some employment office with no real authority on the case of a single driver and so pretty much irrelevant.
No real authority? I'm assuming you have never run your own company and had a former employee with a complaint with "some employment office".
They found the Uber driver improperly classified as an independent contractor, as a result Uber was ordered to pay the employee's driving expenses of $1,000's. If Uber loses its appeal in court all the sudden that single case becomes precedent for all California Uber drivers.
Seems like this discusses "XCHANGE LEASING, LLC", not "Uber Technologies, Inc" or "Uber USA, LLC". I fail to see the relevance.
>These drivers, as independent contractors, are supposed to provide their own tools/materials to perform, not finance/lease/rent the tools from the company to perform.
They aren't
>They aren't
Maybe you should tell that to the IRS (and a few states) as that is #14 on their 20 factor test.
The "They aren't" was in reference to the fact that said contractors aren't directly leasing the cars from Uber.
I still think the primary goal and profit is made on the core driving service, not the leasing program.
Like you said, it's a multi-pronged and complicated test. I actually think Uber could meet a majority of the IRS factors.[1]
Namely:
1. Instructions: Uber does not instruct drivers about when, where, or how to drive.
2. Training: by most reports, Uber provides no training to drivers. (In fact, this is an argument which Uber detractors often use against it.)
3. Services Rendered Personally: as far as I know, Uber doesn't forbid you from hiring your friend to drive your car around with your Uber account open. (HIRING, SUPERVISING, AND PAYING ASSISTANTS might also apply here.)
4. Set Hours of Work: You can drive whenever you want.
5. Full Time Required: You can only drive a few hours a week.
6. Doing Work On Employer's Premise: This test is somewhat less applicable, but Uber doesn't require their drivers to (for example) come to a company HQ at the beginning of their shift.
7. Payment By Hour, Week, or Month: The bulk of driver payments depend on miles driven for customers, not hours "worked."
8. PAYMENT OF BUSINESS AND/OR TRAVELING EXPENSES: Uber does not compensate drivers for any of their (substantial) expenses.
9. FURNISHING OF TOOLS AND MATERIALS: Drivers provide all their own equipment.
10. SIGNIFICANT INVESTMENT: This is arguable, but many drivers are known to buy new cars just to drive for Uber.
11. REALIZATION OF PROFIT OR LOSS: This is definitely plausible. If drivers don't keep a firm grasp on their expenses or spend too much time driving around looking for riders, they can definitely suffer a loss.
12. WORKING FOR MORE THAN ONE FIRM AT A TIME: Uber drivers often simultaneously work for Lyft or other ridesharing services.
This isn't cut-and-dry and we shouldn't treat it as such.
2. Training: Uber trains drivers in how to use their app.
3. Uber forbids drivers from having friends in the car and are expected to behave like livery drivers.
4. (Drivers can work whenever.)
5. (Drivers do not need to work full time.)
6. Drivers are required to display an Uber tag in their windshield while driving, (but are not required to begin and end their work "shifts" at any particular location).
7. Drivers are paid out of Uber's revenues, and not by the customer. This is obvious from the way that Uber prepares its financial statements, wherein all payments from customers are treated as its revenues, and driver's cuts as COGS. (On financial statements, employees are COGS, contractors are generally other expenses.)
8. (Uber does not compensate drivers for their expenses) except for tickets, impound fees, and fines incurred while driving for Uber.
9. Uber provides an app, a windshield decal, navigation services, payment processing services, and deposit services.
10. (Drivers provide their own cars.)
11. (Drivers can incur a loss looking around for riders.) This is actually a big point at the international level when determining whether one company is independent of the other financially, but it generally isn't as much of a factor at other levels.
12. (Drivers work for multiple services.)
The balance favors treating drivers as employees. Indeed, one of the most important factors is that Uber itself characterizes the drivers' income as its own on its financials and tax returns. That will definitely hurt it when the IRS, the same agency that audits the tax returns, needs to make a determination about classifying the drivers.
#6 is calfornia regulation, not an uber/lyft/whoever requirement. I don't know how it's like elsewhere.
#9 I would compare uber to current taxi independent contractors, which have been standard operating procedure for decades. The taxi driver rents a taxi car with it's attached taxi medallion for a few hundred dollars a day. Anything they make after that is their money. But since the fee is usually very high, they have to work 12 hours day to make something approaching a living. I'm fairly certain the card terminals and the taxi company phone dispatch services come with that rental.
Whatever gave you that impression? Uber has strict rules about how drivers should behave with customers, or about the maintenance of their car. For example drivers are not allowed to be aggressive in traffic (like taxi drivers), they are not allowed to talk with the client unless the client shows interest in talking, they can't smoke in their car and they are not allowed to reject orders, otherwise they'll suffer a pay cut.
I've talked with multiple drivers that confirmed the above. I also once complained to Uber about a driver that called me to convince me to cancel my order and they replied that the driver was scolded. I have the response in my email to prove it.
As a disclaimer, I'm talking about Uber from Romania, not from the US, but it's the same story, drivers being hired as contractors.
The legal equivalent of "rules lawyers" are just plain "lawyers", and Courts don't frown on them as a class.
Airbnb is a special case because there customers are picking a specific location so refusing cancels the transaction.
Uber wants to have the anonymity of Mechanical Turk with the Airbnb lock in.
I honestly fail to see why what Uber wants is in any way relevant here.
Seriously? What Uber wants constitutes exactly half of the argument.
This is not so dissimilar from the McDonalds manager that gives his employees an unpaid two-hour break in the middle of their shift, but fires them if they leave the franchise during it.
If you want people to be available for a period of time, pay them by the hour.
If you want to only pay people when they are working for you, don't call them a contractor, but prevent them from moonlighting.
How does Uber forbid moonlighting?
I know tons of drivers on both Lyft and Uber.
Uber is not paying people to be available and does not require you to work a certain schedule. They're paying you only for rides you pick up.
There are arguments for classifying drivers as employees, but time isn't one of them.
There is only one reason for this policy - discouraging moonlighting.
Where is the evidence of that? I've ridden with plenty of Uber drivers who only drive a few hours a week.
> they don't get to set their own rates
This is far from being a dominant factor in employment status. If I offer a job for a fixed rate on Upwork and hire a contractor to do it, the fact that we didn't negotiate the rate doesn't make them an employee.
If you turn down fares or only drive during certain peak times, you get pushed lower and lower into the queue when the robot decides who to send out on fares.
>This is far from being a dominant factor in employment status. If I offer a job for a fixed rate on Upwork and hire a contractor to do it, the fact that we didn't negotiate the rate doesn't make them an employee.
Except that the person on Upwork has the ability to negotiate, and choose not to take the gig. A driver for Uber does not get the chance to negotiate a fare with a customer and turn it down.
The customer is not contracting with the driver, Uber is.
Uber offers a fixed rate. Take it or leave it (just like our hypothetical Upwork poster).
Negotiation has, as far as I know, never been included as a test of employment status. For one thing, it's a poor test: there are plenty of contractors who don't have the leverage to negotiate, and plenty of employees who do.
Not exactly...
1. Uber actively solicits drivers to work certain hours and pays bonuses/hourly salaries to do so.
2. Uber, at least historically, has solicited drivers to travel outside their county (where ride sharing may legal) to drive in other counties (where ride sharing is illegal) by paying bonuses/hour salaries.
3. Skip the car for a second...all other equipment to facilitate the ride is provided by Uber, including: an iphone provided by Uber; the software scheduling the ride; the software routing the ride; and the software facilitating the payment process.
4. It is my understanding Uber will finance vehicles for Uber drivers, making Uber the owner of the cars being used by Uber drivers in many cases.
5. Where ride sharing violates the law, ranging from traffic tickets to criminal arrests, Uber will pay for the Uber driver's lawyer.
*I have always said 5 is the most disturbing, in what other industry does a company provide services (through employees or contractors) where the employee/contractor can be civilly fined and/or criminally charge for doing their job? From a legal perspective the courts, as far as I am aware, have never looked a company providing a lawyer as a factor in determining the employee/contractor relationship issue. However, that is only because I think the entire scheme is novel for any business, again what other industry see employees/contractors fined/arrested for doing their job? Ultimately the fact that Uber provides and pays for lawyers to represent Uber drivers will pop its head up in the courts, and it would not surprise me if this fact becomes a new element/factor the courts weight in determining the employee/contractor issue. In my opinion, such a scheme strongly suggests an employee relationship.
Do you mean surge pricing? Either way, this doesn't meet the bar of being an "employee." If you can work only 4 hours a week, then you are setting your own hours.
> 2. Uber, at least historically, has solicited drivers to travel outside their county
Define solicited. The law allows a company to encourage contractors to do certain things, but if it's not mandated then it's not instructions.
> all other equipment to facilitate the ride is provided by Uber
Uber does not always (or even usually) supply the iPhone. In fact, drivers have to pay Uber to rent an iPhone if they want it.[1] That's indicative of a contracting relationship.
The fact that Uber writes the software is immaterial: Uber is not contracting drivers to provide a ride-sharing service, it's contracting them to drive from point A to point B. The fact that Ebay provides the software for transacting on their marketplace doesn't make Ebay sellers employees.
> 4. It is my understanding Uber will finance vehicles for Uber drivers, making Uber the owner of the cars being used by Uber drivers in many cases.
While Uber does sometimes offer financing, that does not imply Uber owns the car. More importantly, this has no bearing on the majority of drivers who are driving non-Uber-financed cars.
> 5. Where ride sharing violates the law, ranging from traffic tickets to criminal arrests, Uber will pay for the Uber driver's lawyer.
Like you said, there is not caselaw determining this. But I don't agree that it necessarily implies an employment relationship.
If I, as a freelance developer, built a casino site for a client and was later charged in the lawsuit resulting from the operation of an online gambling site I would expect the client to offer assistance with legal counsel.
Also, do you have evidence of Uber paying for representation when it comes to non-ride-sharing traffic tickets?
[1] https://help.uber.com/h/1eaa91f9-be2e-463d-809a-df7e4cdeb593
No, hourly wages. Along the lines of emails/notifications going out to drivers telling them if they drive in certain areas/times they will be paid an additional hourly rate. For example, in Florida they will recruit out of town drivers into different towns for eventsm such as Spring Break in Panama City where recruited drivers were arrested, and recruites drivers to do this by offering an hourly wage during these times.
>Uber does not always (or even usually) supply the iPhone.
I have had multiple drivers tell me otherwise. I don't know why they would make it up, but take note, amazingly all Uber drivers will have an iphone (figure ~50% would have an Android...but nope all iphones).
>While Uber does sometimes offer financing, that does not imply Uber owns the car. More importantly, this has no bearing on the majority of drivers who are driving non-Uber-financed cars.
Perhaps in your eyes, but the eyes of the law care who owns the equipment, and the law does not have to make broad decisions, they can look at each specific set of facts on a case by case basis.
>If I, as a freelance developer, built a casino site for a client and was later charged in the lawsuit resulting from the operation of an online gambling site I would expect the client to offer assistance with legal counsel.
That is a very odd expectation you have, especially if it is not explicitly in your Agreement, and I'd ask anyone to show me an IC Agreement where the company agrees to provide a lawyer for the contractor should the contractor's performance of the agreement violate the law (as such an Agreement would be unenforceable as you can not contract to break the law). Moreover, having drafted 100's of IC Agreements, I always include language to the complete opposite, to the effect that the contractor must warrant that their performance of the Agreement will comply with Federal, State and local laws and otherwise the contractor indemnify the company if they breach any laws.
>Also, do you have evidence of Uber paying for representation when it comes to non-ride-sharing traffic tickets?
I live in Miami/Fort Lauderdale, where Uber drivers are regularly ticketed and sometimes arrested. Its common knowledge around here Uber pays for the lawyer and pays fines. In fact Uber had an outstanding debt to Broward County alone for ~$3M.
And where is there any evidence of Uber owning the equipment.
Financing is done through third parties, not Uber. Not to mention that it's a pretty novel interpretation that financing somehow transfers ownership.
Its not uncommon for lender to be on the title and hold title until the loan is paid then transfer it to you. Hence why if you default they can repo, because you are not the owner, otherwise it would be stealing.
>And where is there any evidence of Uber owning the equipment.
https://www.quora.com/Does-Uber-pay-for-driver-iPhones-and-c...
Some drivers claiming they paid for the Uber iPhone, some might have to put a deposit and others getting it free. FWIW every driver I have spoken to in person said they were given an iPhone for free.
As to the cars, I did originally understand Uber was acting as a Lender, it is anything but clear. Moreover, Uber has financing, leasing and rental programs. If you lease a car through the Uber program your payments go to Uber not the dealer or a lender. Eventually there will be a case where the discovery will answer the question if Uber ever found its way onto the title of any of the vehicles being driven by its drivers. Separately, they are currently being probed in CA for at least the leasing practice (not having to do with the IC issue).
So... They only get paid when they are working - and when they are not working, they are punished for moonlighting.
You can't just pick and choose which part of the contractor, and which part of the employee relationship you want.
Why is it OK for me to do this to a contractor, but not for Uber to?
You also don't have an automated system that broadcasts identical job offer to contractors, and is able to select whichever one answers first.
I'm sure the McDonald's manager would love to only pay his employees for the thirty second increments where there are customers in the restaurant... But I'm assuming you don't do that!
There's a lot of people who are desperate for extra income--short of ditch digging. I looked into driving for Uber a year ago. While I haven't bought the four door sedan, it's still on the back of my mind.
My biggest fear is spending eight grand on a Uber approved vechicle, and it not working out, and I'm stuck with a boat anchor--that's depreciating daily. Four door vechicles are a hard sell. Wether new, used, or a classic vechicle-- a two door almost always sells faster than a four door. (I'll pass this along, if you want a classic car--and don't care about resale value, look for four door vechicles. Car guys just don't want them. They are a good value now.)
So, after looking into that list. A list that changes. I believe Uber is a employer. What really gets me about Uber is they use your insurance. You take on most of the risk, and they have the nerve to tell you what's aesthetically pleasing, or safe.
Likewise, Uber can require its contractors to use equipment which meets a certain aesthetic standard.
> You take on most of the risk, and they have the nerve to tell you what's aesthetically pleasing, or safe.
The fact that you take on risk is a big part of why it's a contracting relationship.
You can lose money driving for Uber. That's a huge mark against it being an employment relationship—employees don't suffer profit and loss.
> I really don't see how it constitutes an employment relationship. In fact, it seems to match all the typical characteristics of contractors.
From the IRS website (https://www.irs.gov/Businesses/Small-Businesses-&-Self-Emplo...):
> The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.
> You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.
It's pretty clear that Uber is controlling the details.
Is it? Uber is actually quite hands off. In fact, you spend most of your time as an Uber driver without anyone monitoring you.
Uber is paying you to transport an individual from point A to point B in an expedient and safe way. They're not paying you for your time and they're not micromanaging your driving.
What exactly is Uber (the company) controlling?
> how it will be done
From a filed complaint (http://uberlawsuit.com/Complaint.pdf):
> Although classified as independent contractors, Uber drivers are employees. They are required to follow a litany of detailed requirements imposed on them by Uber and they are graded, and are subject to termination, based on their failure to adhere to these requirements (such as rules regarding their conduct with customers, the cleanliness of their vehicles, their timeliness in picking up customers and taking them to their destination, what they are allowed to say to customers, etc.)
The comment by bad_user basically says the same thing, but is anecdotal (https://news.ycombinator.com/item?id=10720036)
Additionally, one of the details Uber controls is that Uber drivers cannot drive older cars (https://www.uber.com/driver-jobs) - Car requirements are a year "2000 or newer (2005 in some cities)".
But what about jobs that dictate aesthetics? Via morgante (https://news.ycombinator.com/item?id=10721054)
> If I'm hiring contract models for a fashion shoot, I can dictate their aesthetics. Likewise, Uber can require its contractors to use equipment which meets a certain aesthetic standard.
Via http://www.nolo.com/legal-encyclopedia/preserving-status-ind...
> It's perfectly okay for the hiring firm to give you detailed guidelines or specifications for the results it expects from you. But how you go about achieving those results should be entirely up to you.
So a clean car, being on time for a pick-up, or what to say probably fit into specifications for the results Uber expects, however how the drivers go about achieving those results should be entirely up to the contractor. But the model year of the car crosses that line. It tells the driver how the job is to be done - with a car newer than 2000 (or 2005 in some cities).
Uber is most likely making this requirement to lower the probability of break-downs during the drive. So there's logic behind their reasoning, but their requirement also limits the independent contractor in a way that a company would limit their employee.
As best I can tell, employment law is trying to achieve the goal of "to the extent that you make a person economically dependent on you in the short term, you must provide that person some benefits that make up for that dependence". Hence why contractors get treated one way and employees another.
But then the law goes about it the wrong way by having a sharp discontinuity that encourages employers to make the relationship such that they get all of the advantages of such dependence, but stay just on the side of "you're still a contractor". For example, as it stands now, employers strengthen their case by making the worker bring their own tools.
A sane law would be more continuous: as you introduce more dependence of the worker on you, you most provide increasingly more benefits to cancel the problem that introduces. Though I admit that would involve a huge refactoring.
Trying to resolve whether someone "is" a contractor is (in the grander scheme) asking the wrong question, like debating whether alcoholism "is" a disease (cf Scott Alexander's "non central fallacy" or "worst argument in the world").
On the other hand, if McDo was to label all its employee contractor, most of them are tied to that specific employment and don't have actual flexibility.
I guess the contractor / employee law is meant to protect #2, but can catch #1 as a side effect.
So whenever you say "I don't want to be an employee" you most likely in position #1, while people in the other group simply would say "I can't be an employee".
That said, I have no idea what status Uber driver really should have. As taxi driver, I guess they have a variety of option for revenues and are only tied to Uber because Uber is a good source of work rather than being dominated by Uber ?
1) It causes the state tax boards to go along with it so Uber can focus its legal resources on when it gets dragged into Federal court.
2) If it becomes "usual and customary" in enough states a Republican congress might be willing to pass a bill to back it.
The withholdings system exists to make it easier to collect.
Why would anyone do that?
Forcing them into either hole will have negative consequences.