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Having been a driver for 1.5 years my questions for you are these: 1. If Uber and Lyft allow their drivers to choose, would it be reasonable for them to make

Having been a driver for 1.5 years my questions for you are these: 1. If Uber and Lyft allow their drivers to choose, would it be reasonable for them to make "having the other app on at the same time" cause for dismissal? I know of no other employee that is allowed to simultaneously bill time on a competitor. Contractors, absolutely. Employees, no. 2. What if Uber, instead, charged $1.00/mo for the drivers to use the app, thereby making them customers instead of contractors?

greggman3 6y ago
AFAIK here is a "duty of loyalty" that requires you not to compete with your employer so working for a company that directly competes with them would be out. Like working for both Waymo and Uber self driving cars at the same time "as an employee". As a contractor no such standard exists.
- jkaplowitz 6y ago
  That's an oversimplification. Uber could just as readily add an exclusivity provision in an independent contractor agreement as waive (or strengthen) any default duty of loyalty in their employment contract. The fact that this question is practically speaking unilaterally up to Uber and not the result of any meaningful negotiation between the parties makes the relationship even more employment-like, as there's usually much less negotiation around terms of employment (certainly some still happens) than in true independent contracting. What's more, it's not clear to me that courts would enforce the duty of loyalty (and maybe not even an express contractual provision depending on the state) against a part-time rank-and-file provider of comparatively unskilled labor, just as they wouldn't prevent a 20-hour-per-month sandwich shop employee from spending an additional 20 hours per month at a different sandwich shop in parallel. Maybe a guarantee from Uber of full-time pay would change that. I believe a federal trial court has even ruled that non-fiduciary employees in California have no duty of loyalty, though I don't know if that was overturned on appeal or whether state courts have agreed.
brightball 6y ago
Point 1 is big. So many Uber drivers are also Lyft drivers.
kangaroozach 6y ago
1. Makes sense. CA is wrong to outlaw voluntary working relationships between two parties. 2. Interesting idea, but then all companies could just do this and make the same claim that their employees/contractors/vendors are just customers too! Not gonna fly.
- dnautics 6y ago
  2. Just FYI, this is basically what the taxicab companies do. And a lot of companies that you interact with basically do this, except at a higher level of organization: namely franchises. A manager at a mcdonald's is not typically an employee of mcdonald's, and is responsible for paying a lot in fees (and has to fulfill a lot of XYZ requirements to maintain the franchise).
- Gunax 6y ago
  In terms of legality I agree with the judge. In practical terms, this is trivial for uber to dodge. All they need to do is transform from a company offering rides, to a company connecting riders to drivers. It sounds like a big difference but I susoect very little about the user experience would change. For instance they could allow riders to offer different rates, but heavily favour (through ui and other soft incentives) the suggested rate. In the end the drivers would be driving the same car at the same price with the same benefits.
  - sk5t 6y ago
    I submit that it's not trivial, in that Uber will have to either let drivers set their own rates, or let drivers cherry-pick without penalty the contracts they wish to accept. Either change constitutes a monumental change to the rider experience.
  - unishark 6y ago
    > In practical terms, this is trivial for uber to dodge. All they need to do is transform from a company offering rides, to a company connecting riders to drivers. It sounds like a big difference but I susoect very little about the user experience would change. There's typically an agenda behind these laws in terms of trying to increase the benefits and power of workers at the expense of the company. So I'm not sure Uber will be allowed to sidestep that goal by simply changing the way things are handled and presented. The govt could simply argue that giving users the option to choose a ride from Bob or Sally is meaningless since customers have no idea who these people are and just choose the first or cheapest on the list. Especially considering the amount of gray area already crossed to classify uber drivers as employees in this ruling.
sanderjd 6y ago
For #2, are you suggesting that the drivers would then get the full fare in exchange for the payment for the app? If so, yes, that would clearly be a great, extremely driver-friendly change that would defuse the employee vs contractor controversy... But, I suspect it would also result in layoffs and perhaps lawsuits from the shareholders.
- dnautics 6y ago
  no. There's no reason why you couldn't do both. There's plenty of apps where you both pay for entry and pay a cut out of each transaction.
  - sanderjd 6y ago
    Ah, then the reason this wouldn't work is that the court would still deem them to be employees, after seeing through this incredibly transparent and cynical facade.
    - dnautics 6y ago
      the courts haven't seen through the facade of the taxi companies (the point is: this would be uber doing exactly what the taxi companies do)
- nagispringfield 6y ago
  I'm currently interning at a startup called Empower. This is their exact business model, the company provides software, the driver can set their own rates and they get the full fare. The drivers pay a monthly subscription free.
  - sanderjd 6y ago
    Sounds great, hope it works out!
  - Jommi 6y ago
    Unfortunately it doesnt solve the biggest issue, which is actually getting the demand in.
baddox 6y ago
Regarding #2, that's just generally not how the law works. There may be some cases where legal technicalities are successfully argued, but in general the legal system doesn't put up with someone sticking their finger a millimeter from its face and saying "technically I'm not touching you."
- dnautics 6y ago
  okay, let's make the price higher. Let's make it $150/mo. Now we're about 10 centimeters away from your face, and not too far off from what taxicab companies do.
  - saurik 6y ago
    Yeah. I pay PayPal to process payments for me: I don't work for them. Hell: I pay Apple to publish apps to the App Store on my behalf, and they even decide whether my app is "OK" or not: when they tell me to make a change to my app, I must do that or I lose my ability to collect revenue. They even require I use certain tools that I have to purchase from the company store to do my work. I have no direct relationship with the customer. They collect all of my money, and then pay me. Am I somehow an employee of Apple? Supposedly I am Apple's customer, but it sometimes doesn't feel like that ;P.
    - nl 6y ago
      You set the price that the customer pays (via Apple) though. That isn't the case for Uber drivers.
      - eru 6y ago
        You think, if Uber let drivers bid on customer fares, they could classify the drivers as contractors again?
        himinlomax 6y ago
        Not sure about California, but here in France it's the kind of difference that would change the nature of the relationship. Although it would be evaluated as a whole, and would be under a lot of scrutiny to determine whether this change wasn't meaningless for practical purposes.
drewmol 6y ago
2. Contractors can also be customers.
jkaplowitz 6y ago
There's nothing in the law that prevents employers from giving their permission to remain available for competitive work at the same time. Indeed, isn't that quite close to the dynamic of a union hiring hall situation, where union members are simultaneously available for jobs from any of the employers with contracts with that union? Of course, one wouldn't be actively working for two employers at the same instant, but neither would one be simultaneously driving an Uber ride and a Lyft ride.
- dnautics 6y ago
  So when lyft is liable for meeting a minimum wage, how is time calculated? Based on logged-in time? Based on in-ride time? What if I'm in ride and I leave the other app on, and get a ride on the tail end of the ride I'm in (I've seen a driver do this).
  - jkaplowitz 6y ago
    Judges have lots of experience at (and precedents for) figuring out when employees are on the clock in many contexts, including ones where employees have some degree of ability to select whether and when to accept a given work shift. Guidance does exist. I don't know California law on this specifically, but any state would definitely include time when actively serving as a driver for a ride, many would include time driving to pick up an accepted passenger, some might include time when logged in as a driver.
- yomly 6y ago
  >Of course, one wouldn't be actively working for two employers at the same instant, but neither would one be simultaneously driving an Uber ride and a Lyft ride. Until someone figures out how to multiplex the cabshare part of the two apps :p
  - jkaplowitz 6y ago
    Hehe, true. :P Well I imagine both companies would kick you off their platform under either type of worker status if you did that, and being an employee wouldn't protect you (the typical default duty of loyalty probably does extend at least as far as working for just one company per ride).
jacobsenscott 6y ago
I can wait tables part time at multiple restaurants.
- dnautics 6y ago
  not at the same time, you can't, unless you're talking about a taco bell/kfc joint.
  - reaperducer 6y ago
    not at the same time, you can't Just as a ride hailing driver can't simultaneously have an Uber and a Lyft passenger in his car. What's your point?
    - garmaine 6y ago
      No his point is that under the California law waiting tables at two restaurants would (supposedly?) make him employees of both. I certainly know it is true of journalist freelancers.
    - gamblor956 6y ago
      He's not making one. You can be an employee of multiple companies at once. Many people are. You just generally don't get paid by multiple companies for the same period of time if you are paid hourly wages.
    - dnautics 6y ago
      A lyft driver can have the uber and lyft apps on at the same time during the phase when you don't have a passenger in the car. This is basic driver strategy 101. It's generally good etiquette to turn it off when you get pinged for a passenger, but that doesn't always happen[0], and for sure I have seen drivers flip the other one back on towards the end of their ride. This is critical question for employment law because: how do you calculate minimum wage hours? [0] I did this once, uber had a really stupid and un-thought-out halloween weekend bonus on a weekend where halloween fell on a friday night (people don't party hard on saturday night of a halloween weekend like that), and pink mustache copied with their own equally asinine bonus. So I went out to a place within the service area where I knew I would not get very many uber or lyft rides, and left both apps on for hours while reading inside a Denny's. I did happen to get ONE ride, and I left the other service on to rack up bonus time on it. I was definitely nervous as hell though, which in retrospect, was unnecessary.
gamblor956 6y ago
1) if they forced that requirement on drivers, that would 100% indicate an employment relationship. But note that it is generally regarded as fraud to double bill multiple clients for the same unit of time. 2) irrelevant to the employee/contractor determination. It is possible for an employee to also be a contractor, see for example restaurants...
- dnautics 6y ago
  Ok, so we are saying #1, If you pick to be in a contractor relationship you can do whatever with regards to having both apps on simultaneously. #2 If you pick to be in an employee relationship, uber and lyft have a right to exclusivity during all phases of the ride. Of course a driver can choose to work for both, but lyft can terminate a driver if they find that a driver is online for uber, and vice versa. Or #3, the state can decide that the "employees" are "not working" unless they are in the phases where they are going towards an accepted ride or have a passenger in the car. The state will almost certainly not go with #3. Between #1 and #2, I can tell you which option 90% of drivers will take. It's not #2. So we will be back to square one.
  - eru 6y ago
    What's wrong with #2, but Uber and Lyft decide not to use that right, and also to cede that right in the employment contract?

greggman3 6y ago

AFAIK here is a "duty of loyalty" that requires you not to compete with your employer so working for a company that directly competes with them would be out. Like working for both Waymo and Uber self driving cars at the same time "as an employee". As a contractor no such standard exists.

jkaplowitz 6y ago
That's an oversimplification. Uber could just as readily add an exclusivity provision in an independent contractor agreement as waive (or strengthen) any default duty of loyalty in their employment contract. The fact that this question is practically speaking unilaterally up to Uber and not the result of any meaningful negotiation between the parties makes the relationship even more employment-like, as there's usually much less negotiation around terms of employment (certainly some still happens) than in true independent contracting. What's more, it's not clear to me that courts would enforce the duty of loyalty (and maybe not even an express contractual provision depending on the state) against a part-time rank-and-file provider of comparatively unskilled labor, just as they wouldn't prevent a 20-hour-per-month sandwich shop employee from spending an additional 20 hours per month at a different sandwich shop in parallel. Maybe a guarantee from Uber of full-time pay would change that. I believe a federal trial court has even ruled that non-fiduciary employees in California have no duty of loyalty, though I don't know if that was overturned on appeal or whether state courts have agreed.

brightball 6y ago

Point 1 is big. So many Uber drivers are also Lyft drivers.

kangaroozach 6y ago

1. Makes sense. CA is wrong to outlaw voluntary working relationships between two parties. 2. Interesting idea, but then all companies could just do this and make the same claim that their employees/contractors/vendors are just customers too! Not gonna fly.

dnautics 6y ago
2. Just FYI, this is basically what the taxicab companies do. And a lot of companies that you interact with basically do this, except at a higher level of organization: namely franchises. A manager at a mcdonald's is not typically an employee of mcdonald's, and is responsible for paying a lot in fees (and has to fulfill a lot of XYZ requirements to maintain the franchise).
Gunax 6y ago
In terms of legality I agree with the judge. In practical terms, this is trivial for uber to dodge. All they need to do is transform from a company offering rides, to a company connecting riders to drivers. It sounds like a big difference but I susoect very little about the user experience would change. For instance they could allow riders to offer different rates, but heavily favour (through ui and other soft incentives) the suggested rate. In the end the drivers would be driving the same car at the same price with the same benefits.
- sk5t 6y ago
  I submit that it's not trivial, in that Uber will have to either let drivers set their own rates, or let drivers cherry-pick without penalty the contracts they wish to accept. Either change constitutes a monumental change to the rider experience.
- unishark 6y ago
  > In practical terms, this is trivial for uber to dodge. All they need to do is transform from a company offering rides, to a company connecting riders to drivers. It sounds like a big difference but I susoect very little about the user experience would change. There's typically an agenda behind these laws in terms of trying to increase the benefits and power of workers at the expense of the company. So I'm not sure Uber will be allowed to sidestep that goal by simply changing the way things are handled and presented. The govt could simply argue that giving users the option to choose a ride from Bob or Sally is meaningless since customers have no idea who these people are and just choose the first or cheapest on the list. Especially considering the amount of gray area already crossed to classify uber drivers as employees in this ruling.

sanderjd 6y ago

For #2, are you suggesting that the drivers would then get the full fare in exchange for the payment for the app? If so, yes, that would clearly be a great, extremely driver-friendly change that would defuse the employee vs contractor controversy... But, I suspect it would also result in layoffs and perhaps lawsuits from the shareholders.

dnautics 6y ago
no. There's no reason why you couldn't do both. There's plenty of apps where you both pay for entry and pay a cut out of each transaction.
- sanderjd 6y ago
  Ah, then the reason this wouldn't work is that the court would still deem them to be employees, after seeing through this incredibly transparent and cynical facade.
  - dnautics 6y ago
    the courts haven't seen through the facade of the taxi companies (the point is: this would be uber doing exactly what the taxi companies do)
nagispringfield 6y ago
I'm currently interning at a startup called Empower. This is their exact business model, the company provides software, the driver can set their own rates and they get the full fare. The drivers pay a monthly subscription free.
- sanderjd 6y ago
  Sounds great, hope it works out!
- Jommi 6y ago
  Unfortunately it doesnt solve the biggest issue, which is actually getting the demand in.

baddox 6y ago

Regarding #2, that's just generally not how the law works. There may be some cases where legal technicalities are successfully argued, but in general the legal system doesn't put up with someone sticking their finger a millimeter from its face and saying "technically I'm not touching you."

dnautics 6y ago
okay, let's make the price higher. Let's make it $150/mo. Now we're about 10 centimeters away from your face, and not too far off from what taxicab companies do.
- saurik 6y ago
  Yeah. I pay PayPal to process payments for me: I don't work for them. Hell: I pay Apple to publish apps to the App Store on my behalf, and they even decide whether my app is "OK" or not: when they tell me to make a change to my app, I must do that or I lose my ability to collect revenue. They even require I use certain tools that I have to purchase from the company store to do my work. I have no direct relationship with the customer. They collect all of my money, and then pay me. Am I somehow an employee of Apple? Supposedly I am Apple's customer, but it sometimes doesn't feel like that ;P.
  - nl 6y ago
    You set the price that the customer pays (via Apple) though. That isn't the case for Uber drivers.
    - eru 6y ago
      You think, if Uber let drivers bid on customer fares, they could classify the drivers as contractors again?
      - himinlomax 6y ago
        Not sure about California, but here in France it's the kind of difference that would change the nature of the relationship. Although it would be evaluated as a whole, and would be under a lot of scrutiny to determine whether this change wasn't meaningless for practical purposes.

drewmol 6y ago

2. Contractors can also be customers.

jkaplowitz 6y ago

There's nothing in the law that prevents employers from giving their permission to remain available for competitive work at the same time. Indeed, isn't that quite close to the dynamic of a union hiring hall situation, where union members are simultaneously available for jobs from any of the employers with contracts with that union? Of course, one wouldn't be actively working for two employers at the same instant, but neither would one be simultaneously driving an Uber ride and a Lyft ride.

dnautics 6y ago
So when lyft is liable for meeting a minimum wage, how is time calculated? Based on logged-in time? Based on in-ride time? What if I'm in ride and I leave the other app on, and get a ride on the tail end of the ride I'm in (I've seen a driver do this).
- jkaplowitz 6y ago
  Judges have lots of experience at (and precedents for) figuring out when employees are on the clock in many contexts, including ones where employees have some degree of ability to select whether and when to accept a given work shift. Guidance does exist. I don't know California law on this specifically, but any state would definitely include time when actively serving as a driver for a ride, many would include time driving to pick up an accepted passenger, some might include time when logged in as a driver.
yomly 6y ago
>Of course, one wouldn't be actively working for two employers at the same instant, but neither would one be simultaneously driving an Uber ride and a Lyft ride. Until someone figures out how to multiplex the cabshare part of the two apps :p
- jkaplowitz 6y ago
  Hehe, true. :P Well I imagine both companies would kick you off their platform under either type of worker status if you did that, and being an employee wouldn't protect you (the typical default duty of loyalty probably does extend at least as far as working for just one company per ride).

jacobsenscott 6y ago

I can wait tables part time at multiple restaurants.

dnautics 6y ago
not at the same time, you can't, unless you're talking about a taco bell/kfc joint.
- reaperducer 6y ago
  not at the same time, you can't Just as a ride hailing driver can't simultaneously have an Uber and a Lyft passenger in his car. What's your point?
  - garmaine 6y ago
    No his point is that under the California law waiting tables at two restaurants would (supposedly?) make him employees of both. I certainly know it is true of journalist freelancers.
  - gamblor956 6y ago
    He's not making one. You can be an employee of multiple companies at once. Many people are. You just generally don't get paid by multiple companies for the same period of time if you are paid hourly wages.
  - dnautics 6y ago
    A lyft driver can have the uber and lyft apps on at the same time during the phase when you don't have a passenger in the car. This is basic driver strategy 101. It's generally good etiquette to turn it off when you get pinged for a passenger, but that doesn't always happen[0], and for sure I have seen drivers flip the other one back on towards the end of their ride. This is critical question for employment law because: how do you calculate minimum wage hours? [0] I did this once, uber had a really stupid and un-thought-out halloween weekend bonus on a weekend where halloween fell on a friday night (people don't party hard on saturday night of a halloween weekend like that), and pink mustache copied with their own equally asinine bonus. So I went out to a place within the service area where I knew I would not get very many uber or lyft rides, and left both apps on for hours while reading inside a Denny's. I did happen to get ONE ride, and I left the other service on to rack up bonus time on it. I was definitely nervous as hell though, which in retrospect, was unnecessary.

gamblor956 6y ago

1) if they forced that requirement on drivers, that would 100% indicate an employment relationship. But note that it is generally regarded as fraud to double bill multiple clients for the same unit of time. 2) irrelevant to the employee/contractor determination. It is possible for an employee to also be a contractor, see for example restaurants...

dnautics 6y ago
Ok, so we are saying #1, If you pick to be in a contractor relationship you can do whatever with regards to having both apps on simultaneously. #2 If you pick to be in an employee relationship, uber and lyft have a right to exclusivity during all phases of the ride. Of course a driver can choose to work for both, but lyft can terminate a driver if they find that a driver is online for uber, and vice versa. Or #3, the state can decide that the "employees" are "not working" unless they are in the phases where they are going towards an accepted ride or have a passenger in the car. The state will almost certainly not go with #3. Between #1 and #2, I can tell you which option 90% of drivers will take. It's not #2. So we will be back to square one.
- eru 6y ago
  What's wrong with #2, but Uber and Lyft decide not to use that right, and also to cede that right in the employment contract?