8 ms·

The big example how the relationship is an employment one (IMO) is the integration test from US v. Silk (1947) -- and yes, it's from 1947 so take what you will

• olalonde 11y ago
  The same argument could be made about a bunch of marketplaces though: Ebay, Mechanical Turk, Airbnb, etc.
  • icebraining 11y ago
    Well, eBay and AirBnB sellers/hosts are not really selling their labour, but their assets. As for the Mechanical Turk, well...
  • jdmichal 11y ago
    There's a distinct difference between those "marketplaces" and Uber, and that's that Uber sets the price, not the member. When I Ebay something, I set the price. If I request a HIT on MTurk, I set the price. If I put up a room on Airbnb, I set the price. If I hop in my car and turn on Uber, I don't set the price. Uber does. I would think that setting my own price is a significant test for being a "marketplace".
    • amyjess 11y ago
      Also, allowing customers to choose who to go with. 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).
  • s73v3r 11y ago
    Not really. An eBay seller negotiates their own price with the buyer, independent of eBay. Uber/Lyft set a price, and the driver has no say in it.
  • ape4 11y ago
    Uber drivers are way more cogs then Ebay sellers. They are representing Uber so they are instructed to offer water to the client, say "how are you today sir", etc.
    • morgante 11y ago
      It's encouraged, but they're not instructed to do so. Plenty of Uber drivers never offer water or say "sir" but remain on the platform.
    • pbreit 11y ago
      No they aren't (in the US).
• bmmayer1 11y ago
  Last month an Uber driver told me: "I don't work for Uber. I just use their app." The same driver had the Lyft app.
  • bognition 11y ago
    Sure, I've heard the same thing but how a driver views their relationship with Uber is not the same thing with how the law views it.
  • benten10 11y ago
    Last month I heard a McD employee tell me: "Ohh haha, I'm not an all-out McD employee. I'm in just for the spare cash". The same employee also worked in Dairy Queen across the block.
  • uremog 11y ago
    Well yeah, if that's what Uber tells them, that's probably how they would see it.
• elthran 11y ago
  > Courts frown on rules lawyers Isn't that the whole business of lawyers - interpreting the laws as they are written, not their intention?
  • Lawtonfogle 11y ago
    Personally I'm not sure, because it seems like both of you are right. Perhaps it is that lawyers are there to find loopholes but present them as if they aren't.
• jasode 11y ago
  Your example of United States v Silk[1] doesn't actually help your argument in relation to Uber drivers. Yes, the Supreme Court reclassified the "unloaders of coal using shovels" as "employees" but the majority opinion agreed with the lower court to leave the drivers as "contractors". Relevant excerpt of the decision: "... 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. [1]https://en.wikipedia.org/wiki/United_States_v_Silk https://en.wikipedia.org/wiki/United_States_v_Silk
  • will_brown 11y ago
    > ...These driver owners are small businessmen. They own their own trucks. ..." 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).
    • morgante 11y ago
      > Uber actually owns the vehicles many of the Uber Driver's operate The vast majority of Uber vehicles are owned by the driver.
      • uremog 11y ago
        Are there some that are actually owned by Uber?
• morgante 11y ago
  I agree that there certainly could be an argument towards classifying drivers as employees. The fact that the app would not function without drivers is definitely a meaningful one, though it also raises troubling questions over whether Ebay sellers (for example) should also be classified as employees. 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. [1] https://www.mdc.edu/hr/Operations/AFS/IRSFactorTest.pdf https://www.mdc.edu/hr/Operations/AFS/IRSFactorTest.pdf
  • gamblor956 11y ago
    1. Instructions: Uber instructs drivers on how to use the app to manage fares, and how to use the app to navigate routes. Generally, the use of other navigational apps was not permitted. 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.
• dragonwriter 11y ago
  > Courts frown on rules lawyers The legal equivalent of "rules lawyers" are just plain "lawyers", and Courts don't frown on them as a class.
• btian 11y ago
  By that logic, Youtube content creators are employees of Youtube? Bloggers are employees of Google? Home owners are employees of Airbnb?