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Comment by pieix | Hacker News Reader

Thank you for posting the exact wording of the bill.

Which of these three clauses are not satisfied by drivers for a ridesharing company?

The burden of proof would be on Uber and Lyft to show: (B) The person performs work that is outside the usual course of the hiring entity’s business.

This would be a hard sell because Uber and Lyft are in the business of providing transportation to people. They may argue that they're only providing the platform that enables drivers to provide rides, but considering the amount of evidence that says otherwise, I'd like to see their lawyer making that argument with a straight face.

Also (A) would probably be a big issue, since Uber, Lyft etc. actually do interfere fairly directly with exactly how a driver provides service, even giving them a constantly-updating rating from detailed feedback collected from riders, and manipulating rides sent to drivers to influence what time of day / parts of town they end up working in to satisfy macro level shifts in demand that the larger organization observes.

It takes serious mental gymnastics to say a driver is not simply an employee of the company, in terms of operational workflow. Drivers aren’t going off and figuring out everything (or even hardly anything) about giving rides at their own discretion, or even just with minor intervention from a central dispatch. The whole thing is constantly controlled in lock step by the central dispatch, and Uber, Lyft, etc., employ data scientists and other experts specifically to make it more centrally coordinated based on data.

Frankly the only thing the driver controls is the financial risk of the car itself and clocking in / clocking out overall (though this is also manipulated with incentives).

You seem to imagine what you want to see. Drivers choose whether to work, when to work, where to work, whether to accept jobs, whether to complete a job or cancel it, whether to take the route suggested or not, whether to take jobs from other gig companies at the same time, whether to run personal errands in between, whether to take breaks, whether to heed feedback given by their own customers, whether to be in areas where demand will be high and jobs are likely, whether to be influenced by incentives or other payments dictated by market conditions, etc. What is the interference?

Au contraire, it is the various governments over the years that have re-regulated drivers (cannot drive in certain areas at certain times, must display decal, must carry license, must pay ransom fees, cannot stop in places, etc.) in ways that have taken away their control over work. We're headed back to capped and regulated taxis, unfortunately. New York City already has a black market trading TNC plates, just like medallions, and prices are back to taxi levels. Hope you like that.

Drivers do choose whether to work, just like employees do. They also choose when to be on the clock, which is the single item from your comment that can even loosely be used to argue they could be contractors. Drivers definitely don’t choose where to work, that’s dictated by the apps’ central scheduling algorithms, and only might be related to the driver’s current location, and not in any way chosen by the driver.

Choosing the route, for example, is a service the ride hailing companies rely on the driver to perform. Like an employee.

Choosing to run an errand, give me a break? You can’t be serious? Employees do that stuff all the time. That type of thing is not related to the distinction between contractor or employee.

> Choosing to run an errand, give me a break? You can’t be serious? Employees do that stuff all the time. That type of thing is not related to the distinction between contractor or employee.

If you work, say, in a restaurant and decide you want to go pick up your laundry, expect the shift supervisor to tell you no.

Certainly some employees enjoy that flexibility, but that is entirely at the discretion of your employer.

My sister who works as a waitress in a restaurant routinely checks in with her boss to leave for brief periods related to child care, usually around pickup/dropoff from the bus at the end of the school day. This type of arrangement is very common, even in chain stores or big retailers.

I’d have to side with Uber and I don’t think their lawyers will have a hard time arguing it. Uber doesn’t own, lease or maintain the vehicles. If the argument is that Uber is a transportation company than how can a transportation company operate if they don’t have any vehicles?

My comment is strictly anecdotal

The employees have to buy and maintain the vehicles themselves, doesn't really absolve Uber from being a transportation company, after all, they make transportation happen on their platform as their main business effort.

Nonsense. eBay makes selling happen on their platform, does that make eBay a store and all sellers employees of eBay?

Uber also is a technology company just like eBay.

eBay sells goods, Uber doesn't.

Sellers are neither contractors nor employees for eBay, they're customers, just like those who sell something at Christie's aren't an employee or contractor of Christie's but another type of customer.

There is a crucial difference; ebay Sellers can pick their customers. They can perform the same sale outside ebay. Customers can pick who to buy an item from. Ebay doesn't take a cut of the sale either, they take a charge for displaying the item on their store page, which the vendor also has to advertise and design on their own.

Have you even used eBay? It is against the TOS to solicit or conduct a sale on eBay offline, to bypass eBay, and eBay absolutely takes a 10%+ cut off sales called the Final Value Fee. eBay also enforces how sellers use their platform including using incentives, rules, and feedback scores to show or not show listings or even kick them off. Similarly, Uber riders can reject a driver as can drivers reject a rider for any reason so they choose. Try again.

Atleast where i live, ebay offers the option to complete the sale of a product offline, and you're free to contact the seller and make a different deal on the product whichever way you like. Well, and sellers on ebay can still run their own store and advertise it on the product page (for which they are still fully responsible).

If Uber riders were able to pick the driver they wanted and drivers were able to design their own advertisement page the riders see as well as being able to negotiate with the rider directly without loosing the Uber's platform protection, I would agree.

The relationship between customer-seller is just much different than rider-ridee.

eBay is marketplace where sellers and buyers transact on their own terms - sellers set their own prices and buyers choose from multiple options to purchase things. Uber is not a marketplace - drivers do not set their own prices and riders cannot choose from multiple options when selecting a driver.

If Uber wants to be treated as a marketplace and sidestep this new law, it needs to make significant changes - if drivers are truly independent contractors they should be able to set their own prices at a minimum.

This comment makes the most sense to me

They don't own, lease or maintain the vehicles because they're trying to claim that the drivers aren't employees.

It's like saying that the drivers aren't employees because Uber doesn't provide health benefits.

Companies routinely get in trouble for forcing their employees to buy their own equipment. But it still happens all the time because of the power imbalance even when they're employees.

This is one of the many thing which makes all this such an existential threat to Lyft/Uber. Even just when it comes to minimum wage there will be a huge fight because so many drivers make less than that when the equipment is taken into account

Plus Uber has at various times assisted with vehicle financing and insurance. And they're working on creating a fleet of autonomous cars.

On this test, I think they'll argue they're a software company - they make apps to facilitate a relationship between rider and driver.

Then this won't cover them as people seem to think it does, because the actual driving is not uber's business. They run a market-place in which others operate; the actual driving is indeed outside of the hiring entity's usual business. Regardless, there seems to be an obvious loop-hole for uber lawyers to chase.

The obvious loophole for the businesses to use is to start charging drivers for the service, which makes them customers and not employees.

How is that a loophole?

They would need to redesign their entire app and business model to do that.

I guess they just fired 450 people so it'll be hard to find the programmers to implement something that even superficially gives them the argument that it's a two-sided market. e.g. let drivers set their prices (but make it really hard to change their settings) and give passengers "the best deal" (but make it relatively difficult to search for other deals).

> They run a market-place in which others operate;

A marketplace generally allows those who operate in it to set their own pricing. The fact that Uber exclusively determines both cost and pay for the drivers would run counter to your 'marketplace' argument.

If they ran a marketplace they would have competitive bids from drivers, customers could negotiate it choose drivers, etc.

They have literally none of the hallmarks of being a marketplace.

The control one is the main one here.

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