Highest French court reclassifies Uber drivers as employees

Now, would you say that builder is employed by this website? If so, at what point did this turn from self-employment to employment?

> Similar argument for changing toppings on a cake - a caterer can negotiate changes to the cake - an Uber driver has no such flexibility.

If the customer wants a cake for wedding: vanilla with 3 layers and a cherry on top it seems a bit inappropriate to contact them saying "I can't make a vanilla cake but how about chocolate?"

It's a limitation of the platform (limitations made to improve customer experience - imagine if you had to negotiate for every taxi ride, you don't do this for local companies). I'd argue that the hypothetical platform described can set any number of limitations, as long as the builder can hop off and get his work elsewhere at any point.

Really, imo, the key here is how much control the Uber driver has to refuse tasks, and if they can seek the same work elsewhere (eg is Lyft available in the city?). You wouldn't tell your boss "eyy sorry chief, bit tired, gonna head home, give the fare to someone else, byeee!! hangs up" -- but you can on Uber.

It's much more analogous to a contractor working for a general contractor -- if I'm a plumber I can take gigs from multiple general contractors, and my ability to negotiate with the customer directly is very limited; instead I'm usually left negotiating with the general contractor, often just with a take it or leave it price. The general contractor is not the employer in this case.

That is price negotiation. The market price changes all the time in response to supply and demand. If you're not willing to do it for a lower price and someone else is, you lose business to them. An hour later there is more demand and you can get some business at your price. Or you can lower your price (accept both rides) and get business both times.

Narrowing the choice to "accept or reject" isn't really removing the price negotiation, it's just simplifying it down to what it inherently always was to begin with.

> Similar argument for changing toppings on a cake - a caterer can negotiate changes to the cake - an Uber driver has no such flexibility.

They get to choose what kind of car to drive, where to buy gas, what hours to work. What would you say is the equivalent thing they don't get to choose?

> Regardless, given corporate (human?) nature is to leverage any power differential to self-benefit, it seems reasonable that regulations be interpreted in the most protective (of the party with less power) manner possible.

But what does that even mean in this case? Isn't the party with less power the one that would be out of work if reclassified as an employee, because employees have less flexibility etc. than contractors?

The argument presupposed that you refuse to negotiate. To say "but you can negotiate" sidesteps the whole thought experiment. You post the job at a fixed price. It's in writing on your posting, "fixed price". A builder accepts it. Or maybe they try to negotiate and you refuse and they do it anyway, or someone else accepts it. Either way someone ends up doing the job at your fixed price. Does the builder now have grounds to sue you for benefits and maybe a pension plan because you don't like haggling?

Anyway I think price negotiation is a bad criterion to use. It is neither necessary nor sufficient to prove anything.

I'm not sure what the situation is like in France, but most Uber drivers I've seen have the Lyft app open at the same time. It seems pretty trivial to download another app and use both at the same time (easier than almost any other freelancer finding more sources for work).

Because this is what employment typically entails.

They aren't clients, they are the "platforms". The clients are the people paying, not the people collecting.

You forgot to disclose the fact that they are getting many perks like properly funding their public pensions while working for Uber AND getting access to regular unemployment funds. The advantages absolutely out-weight the drawbacks in France. And they are guaranteed a minimum wage, legal contract framework which means that Uber cannot fire them on the spot and so on and so forth. The only loser here is Uber, not the driver, if Uber were to chose to continue doing business in France.

First, you say "more rights" as if that was just a detail. But paid vacations, sick/paternity/family leave, minimum wage, pensions, social security, right to strike, unemployment benefits and the like are not just a minor thing.

> If you try contracting as a coder for example, you are likely to get reclassified as an employee.

I have worked as a freelance through some brokerages/exchanges (e.g. Upwork) and there you set your own rates, your own conditions, and your own clients. I think it's a pretty different framework than Uber.

The issue is not brokerage/exchange or not, it's who controls the terms of the labour done.

I do not know about France, but in Germany, employees only pay half of their healthcare insurance fees. And only their wage is subject to the healthcare insurance "tax", while self-employed people need to pay the tax on all incomes, including investment incomes

This is not the case in France. Self-employed people still pay personal income tax and/or a tax on company profits.

The increased taxes on employees as compared to the self-employed is mainly due to paying for the infrastructure and cost of providing extra benefits to employees, like unemployment insurance, vacation pay, better pensions, etc. The term for these taxes are “charges sociales”, meaning they’re used for providing social services. The increased taxes are not used for building roads, paying for the armed forces, or things like that. Other taxes pay for that.

If everyone in France were self-employed, a very few government services providing social services (like Pole Emploi) might cease to exist, but most government services would be entirely unaffected.

I seriously doubt you, as a driver for Uber or Lyft, could legally make deals to drive people you find via your work for those companies, outside being assigned with the apps for those companies.

Anyone know what the contract with Uber/Lyft says?

Similarly, many nannies and cleaners are mis classified.

On what basis should someone presume to contradict the builder's calculus on this kind of tradeoff?

-Mobile users

Drivers are free to accept or decline any ride requests around them. How is that not a free market of proposals? Pretty much every driver I met used multiple applications, Uber, Lift, Juno. I don't know whether or not any Uber drivers would stop for someone just flagging a cab on the street the old fashioned way.

> Uber sets the terms and conditions

There are always terms and conditions. If your handyman needs to do something to your power circuitry, he had better be a licensed electrician. The catering that puts icing on your cake, better pass a health inspection. And your cab driver better have a driver's license. All of these are pretty much take it or leave it restrictions.

> it would have to allow drivers and riders to post proposals, set their own terms and prices and freely select from available offers

No taxi service I know of works this way. Because you want your fares to be at least somewhat predictable and your incentives are aligned very different from driver's incentives.

Now id just wish law makers wake up and regulate paypal et al as banks.

By the way, the take-it-or-leave-it offer with dictated pricing is a really inefficient way to reach a market price. The driver logs off because they can't decline too many times, then there are less drivers, so the rideshare app has to raise prices, but then the drivers nearby are no longer online.

I had a similar situation in the US when I was a contractor many years ago; during periods when one client had me working on a large project I wanted to focus on, I had to take on a couple of token tiny projects periodically to keep my clients from getting into trouble with employment agencies.

I agree with the end goals of those rules but as a generously-paid technology consultant, I was in no danger of exploitation and it was just added hassle benefitting nobody.

Uber's model prohibits drivers from subcontracting (transferring) their rides to others, which pierces the veil of 'independent contractor': either a contractor can subcontract, or they're not a contractor.

Caveat: This is not at all a complete argument for or against taxis or gig economy, but is meant to show how a division exists between the two to permit further consideration of the ruling.

Some taxi companies have abused the independent contractor status as well and went through the same kind of trial in court. Here's an example: https://hrdailyadvisor.blr.com/2017/12/12/taxi-drivers-emplo...

Not disagreeing with the absurdity of this, but aren't taxi drivers usually employees when there's a centralized call number to hail a cab? That, or they are truly independent. So I don't see the argument here.

'Radio' calls and calls they've privately arranged with customers as well.

>Taxis have regulations set by an organisation.

That would be local by-law in most cases.

>Taxis (in most places) have rules that say they must take the most efficient route.

You can't intentionally ripoff customers but the fastest route and the cheapest are often different. You can take whatever route you want as long as the customer is cool with it.

>In most places, taxis aren't allowed to refuse a customer based on destination.

You absolutely can refuse a customer as long as it's not descriminatory, like most other businesses.

>Does that mean that a taxi driver is an employee?

Some drivers are employees, some are best compared to franchisees and others are totally independent.

In Europe? (or France in this particular case) yes absolutely. I've never been to a European country where taxi drivers are not employees of regular taxi companies receiving salaries.

Why not?

As for taking the most efficient route, a driver purposely taking a longer route you didn't ask for to scam you out of your money is just that, a scam. So it's illegal on that basis alone.

They key difference with a lot of these taxi restrictions is they are set by the government to protect consumers. The government imposing uniform standards on taxi drivers through legislation is not at all the same thing as private companies doing so on drivers while weaseling out of employment requirements. The government can set lots of restrictions on how jobs are done without requiring employment contracts with those workers; private companies do not have those same powers. Hell, the government can execute people; there's no expected parity here whatsoever.

The owner/recipient of the medallion agrees to certain work conditions/obligations (non-discrimination, destination-blindness, accept credit cards, sometimes provide wheelchair amenities, etc.) and receives certain privileges (limited monopoly, right to pick up anyone on the street, right to use taxi lanes and taxi files, etc.). Whether the drivers actually meet the obligations is often a matter of lack of enforcement and what the driver can get away with, but it really is a quid-pro-quo of rights and responsibilities.

Medallions ended up being owned by taxi companies who rented them out to contractors or employees, so the relationship between the medallion owner and the driver (2 private parties) depended on how they set up the contract (and both kinds exist). And of course, private parties abuse independent contractors and employment contracts all the time, so it's really a gray area in practice. But regardless of who is paying whom, the driver should adhere to the medallion rules while driving/waiting on fares.

When looking at taxi and ride sharing, it helps to have a brief history of the industry:

- Before medallions, anyone could call themselves a driver, and pick up anyone for any price--true market competition. Of course, abuse and discrimination was rampant, riders were vulnerable, and too many drivers would drive the offered price so low only the desperate in dilapidated/dangerous vehicles would compete.

- Regulation in the form of medallions and meters came along with the idea of promoting mobility. Limit the number of drivers and set the fares so that someone working full-time can make a decent living, make sure they have safe vehicles and not criminal drivers, mandate shortest routes and non-discrimination. In the best of all worlds, there is a competent fleet of drivers, and people can get around the city and suburbs as needed.

- Because this is not the best of all worlds, taxis became sleazy and abusive, the medallion owners exploited their drivers (both employees or contractors), and regulatory capture ensured that the customer protection obligations were no longer enforced.

- Uber and others exploited the loophole of the radio-taxi: you phone in and get a taxi dispatched to your location. Except with mobile phones, that's like standing on the curb and hailing a taxi, which was the artificial monopoly given to taxi medallions. Frankly, I think ride-hailing apps should've been regulated on that alone, but because the whole industry had such a bad reputation and entrenched interests, everyone was happy to find a way around them.

- As the middle-men, the ride-hailing companies are trying to set themselves up to get the best of both worlds: set prices and make sure drivers aren't really free, but also not have any of the responsibilities of keeping ride-for-hire on the road or promoting mobility.

Another side of this whole contractor/employee debate is the destination-blindness. As a driver, you don't want to drive the unprofitable fares, either too short or too long to the suburbs without a return fare. In order to be appealing to riders, Uber et al. have to hide this from the drivers, otherwise the drivers would refuse more rides. If all drivers became true contractors free to set rates and pick-and-choose any ride, we'd be back to the original unregulated situation (race to the bottom). So the companies get why the regulations exist, but if the drivers were employees, then the companies would have to bear the cost of the unprofitable fares. So they make the drivers feel like contractors to bear that cost for them.

Yes it does, and a lot of them are employees.

That freedom reduces to "they're free to optimize the route to get there quickly" which is a freedom you have at just about any job. I can decide how to code most efficiently, but does that really make me more contractor-like?

source: work for lyft.

I'm honestly not sure where this all ends up. The services certainly _feel_ exploitive when you hear about all the horror stories, but turning everyone into employees may then be fraught with new issues of employer<>employee rights and obligations (for ex defined hours, time off, etc)

Source: lived and worked in Australia, Canada, and the US.

Now that subordination has been established, using the criteria you list, what's stopping Uber from forcing the drivers to work regular shifts? The drivers are legally subordinate to Uber now, after all.

Also taken from your salary, a complementary private healthcare plan chosen by your employer. I just literally learnt yesterday the mandatory part on the company private complementary plan. You can not reject the company plan if it does not suit you. But you can take another complementary plan on your own. BUT only one is eligible for reimbursement. So you basically loose part of your salary if you choose a better complementary health plan as recipient of your health bills.

Now, if you are a freelancer, well, you also have to pay all of that, all by yourself this time. The affiliation is different (RSI) but you still have to pay universal public healthcare. Then you are free to have a complementary private healthcare plan or not.

All critical health issue are covered by universal public healthcare. Less critical stuff like dental implants or ultra-thin glasses are not. You don't get a hole if you don't have complementary health insurance, you get a cheap dental plate.

Less flexibility for drivers is probably a guaranteed outcome

I understand that the current wage-slave model is better for employers, workers can't go home early if they feel tired that day for less pay since it would get them fired. Instead they have to tough out their hours every day. Similarly if a part time worker wanted a bit of extra money they could just choose to work more a few times, but that is also impossible in the current model. It assumes that workers are like machines who reliably work XX hours per week with no deviations. And even hourly jobs requires you to pick shifts beforehand and often you can't even get as many hours as you want or need, and you can still get fired for picking too few shifts etc.

So I feel that Uber is a much more humane way to handle labor than current employment contracts.

Yes the main effect of this is the company will have to restrict its standards and probably less of these people we're supposedly so concerned about will be able to work anymore due to qualifications or being able to cope. And those left now get to enjoy more regulations, supervisors, time cards, and workplace surveillance and the daily grind just like the rest of us drones. Heck Uber is barely scraping by as is. This might be the killing blow and now everybody is out of work. Good job.

You can always come up with some scenario where it doesn't work while ignoring millions of drivers who are doing just fine. Would that mother in your example be better off without Uber? What if she can't work steady shifts every day and needs the flexibility?

People are perfectly capable of choosing what's best for themselves, they don't need the government to tell them what to do.

Also, your plumber doesn't set his rates, you do. He quotes and you accept (or not). That's exactly the same as the Uber driver.

It seems pretty obvious to me that Uber drivers organise their own work. They start and stop when they want, pick the journeys they want, set their own hours etc. But maybe I've misunderstood you?

Isn't the whole point of an employee that there is an expectation of regular work?

What does 'underpaid' mean in this context?

And no, Ubers model wont work with employees due to the minimum hourly wage. Currently people need to do a good job to earn money, but if each worker is guaranteed a certain amount per hour then uber will be forced to start screening and firing applicants manually like everyone else instead of the current automated process.

Uber is a matchmaking service that comes with certain rules and objectives so the marketplace works better for everyone, and flexibility to work when and where you want is usually most important.

Perhaps we need a 3rd category to account for this kind of work.

Contacts are the most basic construct enabling modern life in a crowded society. Reinterpreting contracts in a liberal, unreasonable manner destroys peace and introduces chaos.

It prevents members of society from ever trusting one another, and makes all agreements tentative, subjective to the retroactive whims of politicians and court.

It serves the court, positioning it as an ultimate dictator, not the society.