Also the drivers aren't supplying a service "outside the business's normal variety." They're supplying the core Uber service.
EDIT: They might be able to redefine themselves as purely a software company for the drivers to remain contractors.
EDIT: They might be able to redefine themselves as purely a software company for the drivers to remain contractors.
If I’m an independent developer, and I frequently refuse to accept your contract work, you might “punish” me by not offering me as much work in the future. That doesn’t change the fact that I always have the choice to accept offered work or not.
It means that the driver is unable to choose their work, which was one of the key differences between a contractor and employee.
If I run an advertising agency and I've got 4 freelance film makers I regularly use and one of them stops taking my calls or almost always says no, I'll eventually stop calling him and add someone else to my regulars. It's just business, no point me wasting my time calling him.
I think there's a load of companies abusing the gig economy at the moment, but Uber aren't the worst and definitely not for things like they provide a GPS or set the rate, it's all the delivery companies and the gas-servicing people who all have to wear uniforms and work full days.
But that's different than the situation with Uber/Lyft. In your story, the person has the ability to find new clients. If you're an Uber/Lyft driver, you can't exactly "go it alone", so to speak. You're kinda stuck with Uber/Lyft.
"I think there's a load of companies abusing the gig economy at the moment, but Uber aren't the worst and definitely not for things like they provide a GPS or set the rate, it's all the delivery companies and the gas-servicing people who all have to wear uniforms and work full days."
I disagree; I feel setting the price unilaterally is a huge part of why they're abusing things. By doing that, they are kind of dictating the wages that the driver can earn. If Uber/Lyft decide to change the per mile rate, there's nothing the driver can do. By contrast, something like Angie's List allows the different providers to set their own rates.
Of course, I imagine that sort of process would make it much harder to actually get a ride and make it far less interesting to the users.
The service is not outside of business standard variety. Other cab companies have client driven matchmaking systems too now... They also employ office workers. The workplace for a cab driver is his car.
Therefore, what Uber does would make them a cab company that abuses contractors instead of employing employees.
However, the key point here is the test A. If Uber is specifically telling the drivers to pick up specific fares or otherwise forcing them to pick up fares beyond the number and/or time, they are actually employees not contractors. Fudging with scoring system to fire those who do not follow such orders indirectly could be construed as such as well.
"the services provided were either outside the usual course of business or performed outside of all the places of business of the enterprise"
Regarding other cab companies, most cab drivers have been traditionally classified as contractors. The idea that Uber introduced this practice is propaganda.
To iterate; the statement sets out two conditions, either of which are sufficient independent of the other, and claims that each of a number of services met one of those conditions.
Usually, when a statement of "choose either x or y" is made, then the only valid options are exclusively x or exclusively y (None and Both are not valid).
Though, when the statement of "if either x or y then do action" is made, then the action is done with any of three valid options: x, y, or x and y (only None is not valid).
To change the second statement to mean the first, you could say "if only x or only y then do action." The "only" cancel Both as being an option.
Either-or does imply exclusive-or, but it is often used less formally, so you will sometimes see it made explicit as "either x or y, but not both."
Surely companies must be allowed some method to ensure the quality of work they desire.
E.g. It's the difference between: a scoring system that uses a coding style standard and unit tests on the resulting code to build a score; and a scoring system that uses hours logged into the computer manipulating the IDE and lines of code written per hour to build a score (the contractor could use that as a way to score himself and for billing, but not the company).