Uber requires nondisclosure agreement before compensating carjacked driver | Hacker News Reader

Uber requires nondisclosure agreement before compensating carjacked driver

themarkup.org

126 pointslaurex57 comments

NDAs are rampantly abused to hide misconduct and mistreatment and should be reigned in. It's especially an issue when there is a large power difference dynamic at play between two parties. In particular, any business that is a platform for people or businesses should be banned from using NDAs that limit speech about the platform.

AirBnb does something similar if a host/guest are raped, seriously injured, or destroy property. They paid off the victims and had them sign NDAs.

It seems to me that it would be astonishingly bad press were someone to simply ignore the NDA and take the whole thing to a very public trial.

"AirBnB sues rape victim, demands silence." would do much more harm to AirBnB as a headline than any victim doing an interview.

Bringing a lawsuit requires paying >~$10k up front, or the attorney taking it on for a prearranged cut of the settlement in exchange for no up-front.

Maybe I am jaded, but what I have seen is that whenever companies do something bad, the bad press will at most cause a flash crash. It takes a short amount of time for the stock to go back up and the business to be back to usual. There was no long-term consequence for United Airlines causing a doctor to be beaten and dragged out of their airplane covered in his own blood. People were saying Volkswagen is done after their emissions scandal, but they are now doing better than ever. AirBnB will get bad press, but history shows that they just have to keep quiet and wait it out for a couple of weeks, maybe a couple of months, before the news cycle moves on and they get back to normal.

The AirBnB case is a little different because anyone can rent an AirBnB (so maybe, at the very least, they can't, and maybe don't, give such low ball offers), but in the Uber case, they know they probably have the driver by the balls. They have a lot of info on the driver that they can probably get a rough idea of their socioeconomic status. Even in general, without a car, an Uber driver has no way to make money. Uber drivers likely can't afford legal representation in the first place. Of course, in general, they'll feel powerless to do anything but sign the NDA and take the check. I do hope this driver gets proper compensation for what happened on the job and can set a good precedent for other drivers.

I'm not a fan of NDA's like this but I keep wondering reading that whole thing:

An Uber driver is carjacked, why is Uber in play here?

Is Uber potentially responsible in some way?

I assume press reports of Uber drivers being carjacked harm their driver recruitment efforts.

I don't know about legal responsibility, but this happened because the driver was working for Uber. Uber knew who the carjacker was before it happened, and they directed the driver to the carjacking.

This wouldn't have happened without Uber's involvement, and Uber is uniquely situated to be able to prevent this type of carjacking. If they're not responsible for the costs of their safety decisions, they should be.

Uber works with anyone who downloads the app and makes the account right?

If they knew someone was a carjacker and didn't stop them I could see what you're saying, otherwise ... that's pretty distant a connection IMO.

They have more of an opportunity to prevent carjackings than the drivers do. For example, they could require enough information to create an account that if you stole a car using your account you'd be immediately identified and reported to the police by name.

The downside of this is that it decreases Uber's revenue. If Uber realizes the benefits of low security in their app, but not the costs, they have to incentive to take these or any other precautions. Making Uber responsible for the negative externalities of its service means that they have to take them into account when determining how to maximize profit.

How about: Uber's hush money operation is so effective that drivers are not aware of what risk they run from carjacking?

I don't know how you would measure that.

This what I think is absolutely ridiculously nuts. Taxi services are typically heavily regulated and in major markets a permit (e.g. medallions auctions[1]) can cost hundreds of thousands, if not over a million dollars and are strictly limited in supply.

Thus, drivers are employees of a bigger company who manages every other part of the economic relationship. Kinda like Uber (and Lyft, etc), but because "you can bring your own gear" people are fungible (nothing stops you from working multiple companies either) and subject to agreements that:

  - Expose minimum liability to the company
  - Provide maximum profitability to the company (even w/ surge pricing -- the house still wins)
  - Minimizes extra legal obligations to employees

In other words, it's a game of "heads I win, tails you lose". If all goes well it's steady, relatively straight-forward (just do what the app tells you to do) work.

The gig-taxi industry certainly doesn't stand alone and they have exploded over the last decade (and especially so in the last year). These jobs/companies do (and should) bring out a lot of strong opinions.

[1] https://duckduckgo.com/?q=new+york+city+medallions+auction&i...

Edit: to be clear, what makes this so unique is that there are significant safety risks inherit in the job (accidents, crime, drunk/offensive/dangerous/etc riders). They scale linearly with how much you do it and some times/places/events add multipliers to that.

There are significant safety risks for many other occupations -- truck drivers, construction workers, security guards, even fast food workers. These are not as controversial because the pay is time-based not output-based, and it's easier to unionize and access some level of benefits. All of these occupations are reasonable and available options for nearly any gig worker, and they should be, especially if those aspects are important to someone.

Gig working is an alternative to any of these occupations which have existed for decades -- one that is arguably less dangerous and, more importantly, enables output-based compensation and completely flexible work hours. It's a mostly-unprecedented career option, and it's net new (i.e. there's no evidence that other job opportunities, other than being a taxi driver, of course, have decreased), so no one is forced to pursue it. For those that do, there is major upside, but there are also a few risks. Most notably, the risk of "performing poorly", choosing poor hours/locations and not making enough money, and the very low risk of a safety incident like this unfortunate carjacking.

Uber was generous to cover Morrow's costs in full, it can't be expected to go beyond that for any incident that happens. Those are the risks of the job. And Uber is absolutely well within its rights to ask for an NDA and non-disparagement in exchange. This is standard, whether you accept severance from a job, are raped in an Airbnb, etc. And it's certainly a hell of a lot better than you'd get as a taxi driver.

> Thus, drivers are employees of a bigger company who manages every other part of the economic relationship.

That's totally incorrect. The vast majority of taxi drivers are also independent contractors. They lease the vehicle+medallion from a taxi corporation.

https://www.brennancenter.org/sites/default/files/legacy/d/d... - an informative breakdown from 2007.

Before WW2 there was a far lower proportion of people who could drive cars. WW2 essentially taught almost every soldier to drive. After WW2 was over there were huge numbers of drivers and a shortage of jobs and used cars were cheap. This led to large numbers of people offering rides for hire. This was a huge shake-up to the taxi business and laws against these ad-hoc taxis were soon enacted. Later they also wanted to create a scarcity of taxis so prices could be kept high and the medallion business emerged. The high prices meant you could make so much money that medallion prices went through the roof. During WW2, miniature radio tubes were developed so a 2 way radio was practical for cars. This led to the radio dispatch empires that also collected medallions. In Toronto new medallions were issued to drivers after 10-20 years of full time driving. Before they had their own medallion you rented a medallion for each of the two shifts the taxi business operated on. Once you got your own you could join a radio dispatch group and pay a radio fee. These groups would register a catchy number and when any one wanted a cab they called that number - gave the address and radio dispatched a taxi. Nice fat little empires - full of abuse. Most cities in USA/Canada were happy to see Uber come along as the taxi companies were charging $50-100 for a ride to the airport. This was a cash cow as most trips were under 30 minutes (away from rush hour) even the airports want part of the fee. Taxi companies tried everything to kill Uber/Lyft. Now the greed of Uber/Lyft are killing themselves. Uber/Lyft could be replaced by a dispatching website over the air, with no fee to Uber/Lyft at all. The 'free-range-drivers' would have to make an organization and build a site, which could be replicated all over. The site cost would be under 5% of the ride fee (IMHO). An added cost is possibly driver insurance against customer harm and the usual car insurance. Insurance companies could implement insurance per mile (with access to the speedo cluster)

NDAs should simply be illegal.

Feel like this is an example of them working exactly they way they should. I could take the 1000 and not say anything or not take the 1000 and say anything I want.

No, it should be take the money or we go to court, not you never get to tell anyone what happened. They are literally buying silence(innocence).

It's 100% bullshit and the fact that it being abused is now the status quo shows it needs to be done away with.

Shouldn’t an event like this be covered by insurance? I assume the driver did not have commercial insurance and wants Uber to be responsible, which goes back to the independent contractor vs employee debate?

That's in the second sentence:

>David Morrow finally received an offer of assistance from the company: $1,000, the amount of his insurance deductible.

So the driver's insurance is already covering the loss, except for the $1000 deductible which is being covered by uber? That seems totally reasonable to me? What's the driver expecting here?

Not having to sign an NDA? As you say the $1000 is just what he is missing from insurance, not a cent more. They essentially expect him to sign an NDA for free.

>As you say the $1000 is just what he is missing from insurance, not a cent more. They essentially expect him to sign an NDA for free.

No, because he's working as a independent contractor and therefore is expected to be on his when it comes to costs/losses. He's normally entitled to $0 from uber, which means he's getting paid $1000 for the NDA.

> He's normally entitled to $0 from uber, which means he's getting paid $1000 for the NDA.

Entitled or not, that would still leave him getting barely even after the entire experience. That does not provide one with a happy person.

> No, because he's working as a independent contractor and therefore is expected to be on his when it comes to costs/losses

A contractor who can't run a good risk analysis on his job because the company that hired him has a habit of handing out NDAs to anyone who ever ran into trouble while working for them. Now I am not a lawyer, but could that be spun into dropping at least some of the blame at Uber?

>That does not provide one with a happy person.

The situation sucks, but I fail to see why he should be compensated by uber. Should your employer compensate you if your car got stolen on your way to work?

>A contractor who can't run a good risk analysis on his job because the company that hired him has a habit of handing out NDAs to anyone who ever ran into trouble while working for them.

Are crime statistics not publicly available in his city? Suppose uber puts a disclaimer during the application that there are 0.1 car jackings per million miles driven (this is an overestimate. the national average seems to be 0.011, based on https://fred.stlouisfed.org/series/M12MTVUSM227NFWA and https://en.wikipedia.org/wiki/Carjacking#Prevalence_and_stat...). Are significant amounts of uber drivers going to be dissuaded by that statistic?

> Now I am not a lawyer, but could that be spun into dropping at least some of the blame at Uber?

Not a lawyer either, but "you're responsible because you didn't tell them about the risks" isn't a concept I know of in tort law.

It seems reasonable that the carjackers are the ones who are responsible for paying out.

But as Uber created the transaction between the two parties, it also seems reasonable that Uber should be responsible for getting recompense from the carjacker. Basically that would imply:

- Driver uses insurance to be covered quickly.

- Driver and/or insurance have Uber cover full damages.

- Uber goes after carjacker to be made whole (I don’t expect the carjackers to have any assets, but Uber ought to be able to get a legal judgement anyways).

Even if that’s not the law today, I think a legal framework that allowed you to get compensated from a broker responsible for your interaction would place the incentives in the right places.

>But as Uber created the transaction between the two parties, it also seems reasonable that Uber should be responsible for getting recompense from the carjacker

In other words, the party facilitating the transaction should also provide escrow/insurance? I'd agree it's nice if the facilitator did that, but absent any explicit guarantees by the facilitator, I'm not sure why that would create a legal obligation for them to do that.

>Even if that’s not the law today, I think a legal framework that allowed you to get compensated from a broker responsible for your interaction would place the incentives in the right places.

I'm failing to see how this actually prevents cases like this. Is the passenger a serial carjacker or something? Is uber refusing to cooperate with police? To me this feels less "place the incentives in the right places" and more "pass the buck to uber because they're big and bad".

It is; uber is simply offering to cover the driver’s deductible.

Arguable like anything.

Another relevant fact is that Uber screened and directed him to the two people who carjacked him with an assault rifle.

Well, Uber _is_ the one who gave him the riders who carjacked him. Uber, to be clear, is the one who says they vet their riders and drivers. I'm not saying they should have known/predicted etc., but Uber is saying that's their value-add.

Except, as with all of these companies, it's actually not. It's more a matter of 'all privilege, no responsibility'.

If Uber gave tracking devices for drivers to hide in cars, then thieves and carjackers could easily be caught up with by authorities before they get a chance to disassemble the car and find the tracker.

Lojack isn't new.

Wouldn't that also give them a higher risk of litigation for the events of the carjacking? You could also wonder whether they shouldn't provide drivers with mechanic services. They don't want anything to do with operating the contractor vehicle. I'm not saying they are or are not evil, just putting it in terms of risk.

Interestingly, in this case, the driver's smartphone remained in the stolen car. Presumably Uber does have information that would be of use in tracking down the perpetrators in this case.

This really goes back to the debate if Uber is a marketing platform for individual drivers (like Facebook marketplace), or is it a transportation company which employs a bunch of drivers.

NDAs are common in out of court settlements. Nothing unusual here. There’s lots to be critical on regarding Uber but this is just the press taking something that’s totally normal and trying to make it sound bad.

I don't know if NDAs are good or bad, but just because something is normal doesn't mean it's not bad.

It just doesn’t seem to me like Uber is a bad guy here. The headline is clickbait. And some very bad men committed an armed robbery victimizing a driver. Uber did nothing wrong and in fact it covered the insurance deductible when it had no legal or frankly ethical obligation to do so.

I'm not sure how you can say this when Uber connected the victim with the assailants.

Uber knew they were carjackers?

In the same sense that Apple is not at fault for allowing its hardware to connect the assailant and victim.

I'm aware that we don't consider manufacturers to be culpable for the actions taken with their hardware, and that there's a case to be made that Uber's service is "closer" to the illegal act and thus more responsible.

But that case actually needs to be made. Whether it's Apple or Uber, there are expectations that the company needs to fulfill, and doing so in good-faith means it's beyond silly to assign culpability for every downstream effect of their product.

> In the same sense that Apple is not at fault for allowing its hardware to connect the assailant and victim.

Except that Uber claims that the value-add its "marketplace" provides is vetting riders and drivers and providing safety.

Doesn't mean they could predict this (though there's several instances of people being reported for other aggressive/harassing behaviors and -not- being kicked off), but when you're slurping "value" from both your rider and driver predicated on providing vetting and safety, well...

> Except that Uber claims that the value-add its "marketplace" provides is vetting riders and drivers and providing safety.

Uber doesn't vet riders, and I'm quite sure their marketing material wouldn't claim that they do. I would imagine they do take some large share of the responsibility for vetting drivers.

Responding to ratings on riders and kicking riders off the platform might not be fingerprinting and background checking riders, but it still is gatekeeping their access to the system.

If a women meets a guy for a date after meeting through OKCupid (lets say he showed up in the list of recommended matches based on their profile) and he rapes her. Are you saying OKCupid should be sued?

Uber isn’t being sued here so your comparison doesn’t make sense. Okcupid also doesn’t talk about safety of meetups the same way Uber does about the safety of riders and passengers.

I believe hn mods edited the submission to change "helping" to "compensating". It would be nice to know what the headline was at the time of each comment, because you're right: "helping" would be obvious clickbait.

Agreements made under duress or where there is a significant imbalance of power aren't enforceable. I'd say a car jacking meets both standards.

Can you expand? Under what conditions and by what precedent are they not enforceable (and for what purposes?). Does this apply to law enforcement interrogations? Or doctor / patient medical emergencies?

https://en.wikipedia.org/wiki/Duress_in_American_law

I don't think it really applies here, since the duress (the carjacking incident) came well after the legal agreement (the driver accepting Uber's TOS).

I think it's that any agreement the driver made with the carjacker would qualify as an agreement made under duress and would be unenforceable.

I think this is a great question, as there are many such circumstances across a broad spectrum. If there's some legal point to pivot on (e.g. imminent physical harm) it would be good to know.

Duress is covered by the other reply, I think. Imbalance of powers is part of something called "Unconscionability" in the USA. There is an example in the link below too.

Basically, courts can throw contracts out when they feel they're not fair and that a side with power has taken advantage.

I guess that means if you have a heart attack, someone can bill you for cpr, but they can't bill you $100bn for cpr, even if they stand there doing nothing until you "agree".

https://en.wikipedia.org/wiki/Unconscionability

It sounds like you think they required this in order to act DURING the carjacking, like some kind of Snow Crash/Fifth Element scenario, which the actual headline ("helping" vs. "compensating") is baiting you to believe. But the content of the article makes it clear this was well after it occurred. So the duress angle doesn't work.

Uber tried to compensate this independent contractor when they had no legal reason to do so. The contractors assume all legal risk when they work as an independent contractor, which is why many contractors in other industries often form an LLC so their assets are shielded from liability.

On top of this, NDAs are common in arbitration. They were under no legal requirement to sign.

Plus, compensating drivers a ton for carjacking creates perverse incentives. It would be trivial for a driver's buddy to "carjack" them on camera and seek a payout from it.

> It would be trivial for a driver's buddy to "carjack" them on camera and seek a payout from it.

Driver's buddy risks prison in doing so. How many friends would do that for you?

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