Neat! Let's go through this list. I've got some insight here having driven for the company:
1. . A worker who is required to comply with other persons' instructions about when, where, and how he or she is to work is ordinarily an employee.
When and where are off the table since the answer is "wherever" and "whenever". "How" is limited to staying offline unless you're ready to drive, clicking the button at pickup and dropoff, and not annoying your passenger. How you get the passenger from point A to point B is entirely up to the driver.
I'd judge this one in favor of an independent contractor.
2. Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner.
The only "training" provided by Uber is a one time video at signup. I think this is iffy enough to lean in favor of contractor, but I see how it could be viewed the other way.
3. . Integration of the worker's services into the business operation generally shows that the worker is subject to direction and control.
No question here, this one tends towards employee. An Uber driver is nothing if not integrated with their operation - that's the whole point.
4. If the services must be rendered personally presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the result.
Yes, your passenger probably cares about how you drive and whether you get them where they're going. Employee.
5. If the person or persons for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the workers on the job.
Uber has no concept of assistants - irrelevant.
6. A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists.
You drive whenever, Uber pays you on a schedule, you have to use their app and processes. Employee.
7. The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control.
Nope - there are no obligations beyond driving once every few months to keep your account alive, and I personally know that getting reactivated involves sending an email. Contractor.
8. If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor, on the other hand, is free to work when and for whom he or she chooses.
The whole point of Uber is that you can drive wherever you want. Nothing is stopping an Uber driver from having the Lyft app going and taking the first ride that comes in. Contractor.
9. If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the worker, especially if the work could be done elsewhere.
Uber drivers don't have a premises and work wherever. Contractor.
10. If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the worker is not free to follow the worker's own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed.
Unclear - the order or sequence involves the "accept-drive-dropoff" model that literally any taxi driver uses and any reasonable person is familiar with. Could go either way.
11. A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control.
Unclear - is automated tracking an oral or written report?
12. Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on a straight commission generally indicates that the worker is an independent contractor.
Uber pays strictly by the job. Contractor.
13. If the person or persons for whom the services are performed ordinarily pay the worker's business and/or traveling expenses, the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities.
As a course of doing business, there is no cost reimbursement. However, when I started, they did pay for my vehicle inspection (not a state inspection, a separate worksheet provided by the company that was more concerned about the condition of your car.. working locks, no dents, no windshield cracks, etc).
Could go either way. Unclear.
14. The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship.
A driver uses their own phone and own car, and that's the whole point. Contractor.
15. If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), that factor tends to indicate that the worker is an independent contractor
Again, a driver uses their own phone and own car. Contractor.
16. A worker who can realize a profit or suffer a loss as a result of the worker's services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the worker who cannot is an employee.
Sometimes driving for Uber is not profitable, and your expenses break down to how you drive, how often you drive, your vehicle's fuel economy. Many people make money doing this, some don't. I'd say contractor.
17. If a worker performs more than de minimis services for a multiple of unrelated persons or firms at the same time, that factor generally indicates that the worker is an independent contractor.
You can drive for Uber and Lyft (and others) at the same time while being full time employed by someone else. I've seen it done. Contractor.
18. The fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship.
Leaning contractor since a taxi service is open to the general public regularly and consistently.
19. The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications.
This one comes up a lot. Uber's "dismissal" only comes as a result of bad ratings or complaints - do "the contract specifications" cover "get over 4 stars on average"? This one is unclear.
20. If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship.
You can quite driving at any time for any reason. Employee.
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Out of 20 points, we have 10 that support a contractor relationship, 5 that are questionable, 4 that support an employee relationship, and 1 that is irrelevant.
I don't think your reading this correctly.
1. Employee, Work is to pick up a specific person at a specific person and drop them off. Not working aka the app being off is irrelevant in the relationship. So, there is no choice in location, how work is carried out is no more informative than which side of the room a painter starts with.
2. Is iffy as you say and has minimal impact. Of note star ratings strongly suggest Employee.
3. Employee
4. Employee mostly due to background check.
5. Employee see background check.
6. Employee this manly relates to set end dates for a project.
7. Contractor, no set schedule. Note, this is the only time schedule is part of consideration and other questions are asking about something else.
8. (depends on judge), You can't do Uber and Lyft at the same time but you can work 4 hours a week.
9. (depends on judge) Employee, the specific job site can change but you need to go to the location specified by Uber. Counter argument, you can decide which city to work in.
10. Employee, work is highly directed and driver has no way to alter the schedule.
11. Employee, every single pickup and drop off is logged. Compare to an advertising agency which might go a week without talking to their client.
12. Contractor
13. Weak Contractor (depends on judge)
14. Employee, worker must install and use application written by Uber. If Uber could send text messages like many delivery companies, but instead requires specific software. Further, some count far more than others a strong Employee on 5 of these may be enough.
15. Employee, Application maintained by Uber and cars are typically maintained by workers. Note, office workers often uses their own cars to get places with mileage reimbursement being very common so this is a normal situation.
16. Weak Employee. Payment is fixed and unprofitable work can be declined. Accidents are normal for employees #15 and don't really fit.
17. Employee, Uber currently does not permit people to use both Uber an Lyfit apps at the same time without being dropped.
18. Employee, most Uber drivers don't/can't accept random rides outside the app unless working with another service.
19. Employee, Uber regularly dismisses people. If they could refuse payment if a driver gave a low star review that would suggest contractor. But, instead it's binary working vs. not.
20. Employee.
Also of note the default in Employee unless the relationship is clearly not. So a strong Employee on even just 5 of these may be enough.
Point 1: "How you get the passenger from point A to point B is entirely up to the driver."
No - it must be in the vehicle that you nominated to Uber, which must meet currency and cleanliness requirements as set by Uber, and must be in a manner that costs the customer the least amount of money (most direct route).
A contractor could choose the vehicle with freedom, could drive the route they chose.
Point 8: "Nothing is stopping an Uber driver from having the Lyft app going and taking the first ride that comes in. Contractor."
Not true. If you are online with both Uber and Lyft and accept a ride with one, you run the risk of being given a ride that you can't decline with the other. You technically can, but there is the potential for penalties including termination of your agreement.
Point 14: I thought Uber gave the driver an iPhone? Maybe that's changed recently.