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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 woul

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.

mlthoughts2018 7y ago
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).
- pishpash 7y ago
  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.
  - mlthoughts2018 7y ago
    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.
    - miracle2k 7y ago
      > 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.
      - mlthoughts2018 7y ago
        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.
lovetocode 7y ago
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?
- lovetocode 7y ago
  My comment is strictly anecdotal
- zaarn 7y ago
  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.
  - pishpash 7y ago
    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.
    - bluedino 7y ago
      eBay sells goods, Uber doesn't.
    - robotdongs 7y ago
      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.
    - zaarn 7y ago
      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.
deleted 7y ago
[deleted]
mises 7y ago
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.
- dnautics 7y ago
  The obvious loophole for the businesses to use is to start charging drivers for the service, which makes them customers and not employees.
  - gamblor956 7y ago
    How is that a loophole? They would need to redesign their entire app and business model to do that.
    - dnautics 7y ago
      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).
- djrogers 7y ago
  > 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.
- gamblor956 7y ago
  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.

mlthoughts2018 7y ago

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).

pishpash 7y ago
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.
- mlthoughts2018 7y ago
  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.
  - miracle2k 7y ago
    > 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.
    - mlthoughts2018 7y ago
      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.

lovetocode 7y ago

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?

lovetocode 7y ago
My comment is strictly anecdotal
zaarn 7y ago
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.
- pishpash 7y ago
  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.
  - bluedino 7y ago
    eBay sells goods, Uber doesn't.
  - robotdongs 7y ago
    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.
  - zaarn 7y ago
    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.

deleted 7y ago

[deleted]

mises 7y ago

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.

dnautics 7y ago
The obvious loophole for the businesses to use is to start charging drivers for the service, which makes them customers and not employees.
- gamblor956 7y ago
  How is that a loophole? They would need to redesign their entire app and business model to do that.
  - dnautics 7y ago
    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).
djrogers 7y ago
> 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.
gamblor956 7y ago
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.