10 ms·

I'm curious to read this argument. For all the hand wringing over Uber drivers as 1099 workers, they seem to be the very definition of contractors. They provide

I'm curious to read this argument. For all the hand wringing over Uber drivers as 1099 workers, they seem to be the very definition of contractors. They provide their own equipment, keep their own hours, NEVER have to work if they don't want to and 0 consequences for working or not working specific hours, etc. What is it about them that makes the employee like? Anyone know? Edit: it appears that the critical factor they considered was whether or not the driver could have operated their business independently of Uber. They said they could not. They also cited the fact that Uber controls the way payments are collected and other aspects of operations as critical to showing employment. http://www.scribd.com/doc/268946016/Uber-v-Berwick http://www.scribd.com/doc/268946016/Uber-v-Berwick

ChuckMcM 11y ago
I haven't read it but perhaps they ran afoul of the 'same manager, same job' over 6 months which tripped up Microsoft?
majc2 11y ago
I've had a quick read, the argument seems to be that because the driver is needed to fulfil Uber's rides that they become indistinct from Uber as a business itself; so they're employees. They make some references to Case law for a Yellow taxi case back in 1991. (at least that was my reading!)
- kohanz 11y ago
  Essentially: "No drivers, no Uber". Makes sense.
  - CPLX 11y ago
    Also, "no Uber, no driver" in this specific case at least.
  - k0 11y ago
    California Über Alles
  - SomeCallMeTim 11y ago
    That's true for services like https://www.upwork.com https://www.upwork.com, too, though. Upwork offers to match people with specific skills to people who need to hire them. Upwork helps track the work being done, and collects the clients' payments, passing them along to the workers minus a percentage. I think providing a service to connect buyers and sellers should be able to be distinct from having employees.
    - kohanz 11y ago
      It's a very fair point. I would add that since you seem to be able to be a driver for Uber/Lyft, etc. simultaneously, that would seem to suggest contractor as well.
    - TheCoelacanth 11y ago
      > I think providing a service to connect buyers and sellers should be able to be distinct from having employees. It is, but the court decided that Uber exercised too much control over the conditions of the work to just be connecting buyers and sellers.
  - woah 11y ago
    No sellers, no eBay?
  - mfoy_ 11y ago
    No, it's: "No Uber/Lyft, no drivers"
    - kohanz 11y ago
      Sure, but I'm not sure what conclusion that helps us draw in regards to a contractor/employee distinction. The former is saying a business cannot exist without employees performing critical functions (I'm not saying that this is de facto truth, but just phrasing the argument). The latter is saying that without a business, you don't have employees/contractors, which makes sense, but seems obvious and inconsequential.
      - mfoy_ 11y ago
        I think it's more like "You can't have one without the other, therefore they aren't just contractors". A ride-sharer / driver needs the platform and the platform needs the driver, fundamentally. It's not like most contracting where it's not the end of the world if all the contracts end.
  - deleted 11y ago
    [deleted]
  - ericd 11y ago
    TaskRabbit?
- Navarr 11y ago
  I would imagine that Uber would argue that it's businesses isn't providing rides, but connecting people who need rides to people offering rides. But I think the Cali court may have had the right of it by going "that's bullshit."
  - CPLX 11y ago
    Yes, and McDonalds has a business of connecting people who want hamburgers with people who are making hamburgers. As one can quickly see that line of argument is exceedingly thin. In order for it to make even a little sense it would have to be rephrased to something more like an argument that Uber's business isn't providing rides, but connecting people who need a ride to an independent business that offers rides to people.
    - viscanti 11y ago
      But McDonalds employees aren't also choosing to possibly flip a burger for BurgerKing in the same shift. One can quickly see your line of argument is exceedingly thing. The fact that alternatives exist and many drivers do operate for multiple services at the same time, shows that there is an independent business.
      - s73v3r 11y ago
        No, it doesn't. Alternatives existing has no bearing on the argument.
      - CPLX 11y ago
        That argument has some merit to it, in the abstract, but this decision was regarding a Plaintiff who did not and had not ever driven for any other service, and that issue wasn't presented as a defense.
        Vraxx 11y ago
        Which was entirely the plaintiff's choice, was it not? If I'm a contractor and I choose not to solicit jobs from a particular customer base, does that somehow mean that those other jobs didn't exist? If anything, the fact that some drivers do this and others do not shows some for of "managerial" skills that were cited as nonexistent.
- meragrin 11y ago
  What's the difference between a McDonald's franchisee and an Uber employee? This ruling would seem to indicate a franchise "owner" is nothing but an employee of McDonald.
  - hiou 11y ago
    You might be interested in how California is dealing with the franchise relationship as well[0] There are specific rules about that relationship that separates it from an employee. [0] http://www.entrepreneur.com/article/240709 http://www.entrepreneur.com/article/240709
  - dragonwriter 11y ago
    A franchisee exercises management control that can affect profit and loss, can subcontract work performed,etc. The lack of these features are among the things cited as making uver drivers employees rather than contractors, so I don't get how you can say that this ruling would make McD franchisees employees.
  - deleted 11y ago
    [deleted]
  - viola11 11y ago
    For one, the franchise contains multiple people so there is most definitely managerial work going on. I also imagine franchise owners possess some freedom in how they manage stocking and of various supplies, and might be free to choose suppliers.
  - emergentcypher 11y ago
    Seriously, read the above list of reasons, and the decision. Your question is already answered.
  - cbr 11y ago
    A McDonald's franchisee has much more discretion in how they operate their business. They choose who to hire, how to manage them, where to run ads etc. They do have less freedom than someone running an independent restaurant, but it's very far from Uber's situation.
foobarqux 11y ago
> I'm curious to read this argument. For all the hand wringing over Uber drivers as 1099 workers, they seem to be the very definition of contractors. They provide their own equipment, keep their own hours, NEVER have to work if they don't want to and 0 consequences for working or not working specific hours, etc. What is it about them that makes the employee like? Anyone know? The ruling is embedded on the page. The case law they cite: "In addition, even though there is an absence of control over the details, an employer-employee relationship will be found if the [Defendants] retain control over the operation as a whole, the worker's duties are an integral part of the operation, and the nature of the work makes detailed control unnecessary."
- tomasien 11y ago
  Thanks it wasn't at first, gonna read it now.
- vonklaus 11y ago
  I think the GP was looking for a little color on the 21 page legal document. Without legal expertise, quite difficult to understand I would imagine. Which is what the GP inquired after.
- sk5t 11y ago
  Just wondering, are exotic dancers then also considered employees under California law?
  - n72 11y ago
    I don't know about California, but increasingly exotic dancers are suing for employment rights. E.g. http://www.nytimes.com/2013/09/11/nyregion/strippers-are-protected-by-labor-laws-judge-says.html?_r=0 http://www.nytimes.com/2013/09/11/nyregion/strippers-are-pro...
    - toomuchtodo 11y ago
      In many first world countries, both exotic dancers and (where legal) prostitutes have employment rights.
matt4077 11y ago
The document is embedded in the article and answers all questions. I can't copy&paste, but the main argument seems to be an existing legal theory that says s/o is an employee if they perform an "integral part of the business" of their employer. There's a taxi corp precedent and pizza delivery is also mentioned.
mtviewdave 11y ago
>They provide their own equipment... The ruling points out that this isn't as important as it appears. The example given in the ruling is that of a pizza delivery person. A delivery person is considered an employee of a pizzeria even if they are required to provide their own car and pay for their own gas and insurance. Also, Uber provides drivers with an iPhone (though they don't have to use it).
- pmorici 11y ago
  They don't provide the phone for free. They charge a weekly fee for use of the phone.
CPLX 11y ago
I read the whole thing. There are a couple relevant sections but this one stands out to me as the best succinct summary of the argument: "Plaintiff's car and her labor were her only assets. Plaintiff's work did not entail any 'managerial' skills that could affect profit or loss. Aside from her car, Plaintiff had no investment in the business. Defendants provided the iPhone application, which was essential to the work. But for Defendant's intellectual property, Plaintiff would not have been able to perform the work." That's a pretty solid line of reasoning, to be honest. Note that for those unfamiliar with the subtleties of legal jargon, the words "but for" have a specific meaning that relates to causality. In other words that last sentence roughly translates to "if not for the existence of the iPhone app there would be no distinct or independent business here." In addition, earlier in the ruling they address the fact that mere ownership of a car has historically not been considered the same thing as owning specific "tools" required to perform a job, and it cites the fact that previous precedent for delivery drivers that they are employees, and merely owning the car and paying for gas does not change that.
- foobarqux 11y ago
  I don't think "but for" is legal jargon or has any special meaning in law, apart from the normal English meaning.
  - CPLX 11y ago
    You're correct that it doesn't have some wildly divergent meaning from plain English, but it is in fact a legal phrase that has a lot of history and specific meaning behind it: http://www.law.cornell.edu/wex/but-for_test http://www.law.cornell.edu/wex/but-for_test http://dictionary.law.com/Default.aspx?selected=113 http://dictionary.law.com/Default.aspx?selected=113 http://legal-dictionary.thefreedictionary.com/%22But+for%22+Rule http://legal-dictionary.thefreedictionary.com/%22But+for%22+...
  - deleted 11y ago
    [deleted]
  - cmdrfred 11y ago
    What's a butt for?
zekevermillion 11y ago
politics
deleted 11y ago
[deleted]
nemo44x 11y ago
http://www.dol.gov/whd/regs/compliance/whdfs13.pdf http://www.dol.gov/whd/regs/compliance/whdfs13.pdf I think there's a very good argument for Uber having to treat the drivers as employees. They are dependent on Uber and Uber sets the amount they will earn. They would more likely be contractors if the drivers set their own rates and Uber would choose who they wanted to drive. Doesn't Uber also try to restrict who they can drive for too? Additionally, Uber's business relies entirely on the labor of the drivers. Uber also supervises the employees in-part by the rating system. In terms of buying their own equipment - this is not an uncommon thing in many trades. Mechanics have to buy their own tools. Many machinists buy their own tools. Truth is there is a lot of gray area here but I can see interpretation both ways. I do hope the drivers in California take this opportunity to organize as quickly as possible and begin collective bargaining with Uber. I'd set Uber's value at less than one billion if this happened.
- yuncun 11y ago
  > I'd set Uber's value at less than one billion if this happened. I think that would be a bit of an overreaction.
realusername 11y ago
In my own opinion, the only reason Uber drivers are contractors is because it's cheaper for Uber, there is no other real reason behind this one. Their internal policies regarding drivers are acting like they are employees anyway, they don't even decide of their price. Otherwise where is the limit between employee and contractor ? Just every company you see could switch all their employees as contractors to reduce their costs.
spacecowboy_lon 11y ago
Control and Substitution are where the main issues are
rada 11y ago
They [...] keep their own hours, NEVER have to work if they don't want to and 0 consequences for working or not working specific hours. Not true. I know someone who drives for Uber. Just last month, he was suspended because he did not want to drive during low-demand hours (when he literally loses money). Uber drivers are, in fact, required to (a) work when they don't want to and (b) work specific hours.
- dnautics 11y ago
  I've heard a lot of termination notices from Uber, but that doesn't sound right. Are you sure he wasn't turning down rides from outside of surge? Uber doesn't like it if you have a low acceptance rate. If anything, Uber wants you to work when there's surge to help drive prices down. Also sometimes Uber just makes shit up when the real reason for termination is something else. (Low rating, safety)
  - s73v3r 11y ago
    That would imply that there are consequences for not working when you don't want to. Implying that they're not contractors.
    - tomp 11y ago
      Why would that matter? I would totally "fire" (i.e. terminate the contract) a contractor that didn't work when I needed him/her to (i.e. that didn't get the job done). Why would Uber need to be any different?
      - rada 11y ago
        The scenario you bring up is a 2-party scenario between a client (the passenger) and a service provider (the driver) while Uber claims to be in a 3-party scenario where they are a software-based logistics service in-between the passenger and the driver. Their entire legal argument is resting on the claim that they are merely facilitating the scheduling and the payment of the ride. Incidentally, if it were a 2-party scenario where you required a specific contractor to be available on demand, you would probably be their legal employer. A mandated, regular schedule is indeed one the main tests when distinguishing between an employee and a contractor. I have worked as a software contractor in the US for over almost 15 years and the employers, especially the larger ones with proper HR departments, have been careful to define my work in terms of skills and deliverables, not hours worked.

ChuckMcM 11y ago

I haven't read it but perhaps they ran afoul of the 'same manager, same job' over 6 months which tripped up Microsoft?

majc2 11y ago

I've had a quick read, the argument seems to be that because the driver is needed to fulfil Uber's rides that they become indistinct from Uber as a business itself; so they're employees. They make some references to Case law for a Yellow taxi case back in 1991. (at least that was my reading!)

kohanz 11y ago
Essentially: "No drivers, no Uber". Makes sense.
- CPLX 11y ago
  Also, "no Uber, no driver" in this specific case at least.
- k0 11y ago
  California Über Alles
- SomeCallMeTim 11y ago
  That's true for services like https://www.upwork.com https://www.upwork.com, too, though. Upwork offers to match people with specific skills to people who need to hire them. Upwork helps track the work being done, and collects the clients' payments, passing them along to the workers minus a percentage. I think providing a service to connect buyers and sellers should be able to be distinct from having employees.
  - kohanz 11y ago
    It's a very fair point. I would add that since you seem to be able to be a driver for Uber/Lyft, etc. simultaneously, that would seem to suggest contractor as well.
  - TheCoelacanth 11y ago
    > I think providing a service to connect buyers and sellers should be able to be distinct from having employees. It is, but the court decided that Uber exercised too much control over the conditions of the work to just be connecting buyers and sellers.
- woah 11y ago
  No sellers, no eBay?
- mfoy_ 11y ago
  No, it's: "No Uber/Lyft, no drivers"
  - kohanz 11y ago
    Sure, but I'm not sure what conclusion that helps us draw in regards to a contractor/employee distinction. The former is saying a business cannot exist without employees performing critical functions (I'm not saying that this is de facto truth, but just phrasing the argument). The latter is saying that without a business, you don't have employees/contractors, which makes sense, but seems obvious and inconsequential.
    - mfoy_ 11y ago
      I think it's more like "You can't have one without the other, therefore they aren't just contractors". A ride-sharer / driver needs the platform and the platform needs the driver, fundamentally. It's not like most contracting where it's not the end of the world if all the contracts end.
- deleted 11y ago
  [deleted]
- ericd 11y ago
  TaskRabbit?
Navarr 11y ago
I would imagine that Uber would argue that it's businesses isn't providing rides, but connecting people who need rides to people offering rides. But I think the Cali court may have had the right of it by going "that's bullshit."
- CPLX 11y ago
  Yes, and McDonalds has a business of connecting people who want hamburgers with people who are making hamburgers. As one can quickly see that line of argument is exceedingly thin. In order for it to make even a little sense it would have to be rephrased to something more like an argument that Uber's business isn't providing rides, but connecting people who need a ride to an independent business that offers rides to people.
  - viscanti 11y ago
    But McDonalds employees aren't also choosing to possibly flip a burger for BurgerKing in the same shift. One can quickly see your line of argument is exceedingly thing. The fact that alternatives exist and many drivers do operate for multiple services at the same time, shows that there is an independent business.
    - s73v3r 11y ago
      No, it doesn't. Alternatives existing has no bearing on the argument.
    - CPLX 11y ago
      That argument has some merit to it, in the abstract, but this decision was regarding a Plaintiff who did not and had not ever driven for any other service, and that issue wasn't presented as a defense.
      - Vraxx 11y ago
        Which was entirely the plaintiff's choice, was it not? If I'm a contractor and I choose not to solicit jobs from a particular customer base, does that somehow mean that those other jobs didn't exist? If anything, the fact that some drivers do this and others do not shows some for of "managerial" skills that were cited as nonexistent.
meragrin 11y ago
What's the difference between a McDonald's franchisee and an Uber employee? This ruling would seem to indicate a franchise "owner" is nothing but an employee of McDonald.
- hiou 11y ago
  You might be interested in how California is dealing with the franchise relationship as well[0] There are specific rules about that relationship that separates it from an employee. [0] http://www.entrepreneur.com/article/240709 http://www.entrepreneur.com/article/240709
- dragonwriter 11y ago
  A franchisee exercises management control that can affect profit and loss, can subcontract work performed,etc. The lack of these features are among the things cited as making uver drivers employees rather than contractors, so I don't get how you can say that this ruling would make McD franchisees employees.
- deleted 11y ago
  [deleted]
- viola11 11y ago
  For one, the franchise contains multiple people so there is most definitely managerial work going on. I also imagine franchise owners possess some freedom in how they manage stocking and of various supplies, and might be free to choose suppliers.
- emergentcypher 11y ago
  Seriously, read the above list of reasons, and the decision. Your question is already answered.
- cbr 11y ago
  A McDonald's franchisee has much more discretion in how they operate their business. They choose who to hire, how to manage them, where to run ads etc. They do have less freedom than someone running an independent restaurant, but it's very far from Uber's situation.

foobarqux 11y ago

> I'm curious to read this argument. For all the hand wringing over Uber drivers as 1099 workers, they seem to be the very definition of contractors. They provide their own equipment, keep their own hours, NEVER have to work if they don't want to and 0 consequences for working or not working specific hours, etc. What is it about them that makes the employee like? Anyone know? The ruling is embedded on the page. The case law they cite: "In addition, even though there is an absence of control over the details, an employer-employee relationship will be found if the [Defendants] retain control over the operation as a whole, the worker's duties are an integral part of the operation, and the nature of the work makes detailed control unnecessary."

tomasien 11y ago
Thanks it wasn't at first, gonna read it now.
vonklaus 11y ago
I think the GP was looking for a little color on the 21 page legal document. Without legal expertise, quite difficult to understand I would imagine. Which is what the GP inquired after.
sk5t 11y ago
Just wondering, are exotic dancers then also considered employees under California law?
- n72 11y ago
  I don't know about California, but increasingly exotic dancers are suing for employment rights. E.g. http://www.nytimes.com/2013/09/11/nyregion/strippers-are-protected-by-labor-laws-judge-says.html?_r=0 http://www.nytimes.com/2013/09/11/nyregion/strippers-are-pro...
  - toomuchtodo 11y ago
    In many first world countries, both exotic dancers and (where legal) prostitutes have employment rights.

matt4077 11y ago

The document is embedded in the article and answers all questions. I can't copy&paste, but the main argument seems to be an existing legal theory that says s/o is an employee if they perform an "integral part of the business" of their employer. There's a taxi corp precedent and pizza delivery is also mentioned.

mtviewdave 11y ago

>They provide their own equipment... The ruling points out that this isn't as important as it appears. The example given in the ruling is that of a pizza delivery person. A delivery person is considered an employee of a pizzeria even if they are required to provide their own car and pay for their own gas and insurance. Also, Uber provides drivers with an iPhone (though they don't have to use it).

pmorici 11y ago
They don't provide the phone for free. They charge a weekly fee for use of the phone.

CPLX 11y ago

I read the whole thing. There are a couple relevant sections but this one stands out to me as the best succinct summary of the argument: "Plaintiff's car and her labor were her only assets. Plaintiff's work did not entail any 'managerial' skills that could affect profit or loss. Aside from her car, Plaintiff had no investment in the business. Defendants provided the iPhone application, which was essential to the work. But for Defendant's intellectual property, Plaintiff would not have been able to perform the work." That's a pretty solid line of reasoning, to be honest. Note that for those unfamiliar with the subtleties of legal jargon, the words "but for" have a specific meaning that relates to causality. In other words that last sentence roughly translates to "if not for the existence of the iPhone app there would be no distinct or independent business here." In addition, earlier in the ruling they address the fact that mere ownership of a car has historically not been considered the same thing as owning specific "tools" required to perform a job, and it cites the fact that previous precedent for delivery drivers that they are employees, and merely owning the car and paying for gas does not change that.

foobarqux 11y ago
I don't think "but for" is legal jargon or has any special meaning in law, apart from the normal English meaning.
- CPLX 11y ago
  You're correct that it doesn't have some wildly divergent meaning from plain English, but it is in fact a legal phrase that has a lot of history and specific meaning behind it: http://www.law.cornell.edu/wex/but-for_test http://www.law.cornell.edu/wex/but-for_test http://dictionary.law.com/Default.aspx?selected=113 http://dictionary.law.com/Default.aspx?selected=113 http://legal-dictionary.thefreedictionary.com/%22But+for%22+Rule http://legal-dictionary.thefreedictionary.com/%22But+for%22+...
- deleted 11y ago
  [deleted]
- cmdrfred 11y ago
  What's a butt for?

zekevermillion 11y ago

politics

deleted 11y ago

[deleted]

nemo44x 11y ago

http://www.dol.gov/whd/regs/compliance/whdfs13.pdf http://www.dol.gov/whd/regs/compliance/whdfs13.pdf I think there's a very good argument for Uber having to treat the drivers as employees. They are dependent on Uber and Uber sets the amount they will earn. They would more likely be contractors if the drivers set their own rates and Uber would choose who they wanted to drive. Doesn't Uber also try to restrict who they can drive for too? Additionally, Uber's business relies entirely on the labor of the drivers. Uber also supervises the employees in-part by the rating system. In terms of buying their own equipment - this is not an uncommon thing in many trades. Mechanics have to buy their own tools. Many machinists buy their own tools. Truth is there is a lot of gray area here but I can see interpretation both ways. I do hope the drivers in California take this opportunity to organize as quickly as possible and begin collective bargaining with Uber. I'd set Uber's value at less than one billion if this happened.

yuncun 11y ago
> I'd set Uber's value at less than one billion if this happened. I think that would be a bit of an overreaction.

realusername 11y ago

In my own opinion, the only reason Uber drivers are contractors is because it's cheaper for Uber, there is no other real reason behind this one. Their internal policies regarding drivers are acting like they are employees anyway, they don't even decide of their price. Otherwise where is the limit between employee and contractor ? Just every company you see could switch all their employees as contractors to reduce their costs.

spacecowboy_lon 11y ago

Control and Substitution are where the main issues are

rada 11y ago

They [...] keep their own hours, NEVER have to work if they don't want to and 0 consequences for working or not working specific hours. Not true. I know someone who drives for Uber. Just last month, he was suspended because he did not want to drive during low-demand hours (when he literally loses money). Uber drivers are, in fact, required to (a) work when they don't want to and (b) work specific hours.

dnautics 11y ago
I've heard a lot of termination notices from Uber, but that doesn't sound right. Are you sure he wasn't turning down rides from outside of surge? Uber doesn't like it if you have a low acceptance rate. If anything, Uber wants you to work when there's surge to help drive prices down. Also sometimes Uber just makes shit up when the real reason for termination is something else. (Low rating, safety)
- s73v3r 11y ago
  That would imply that there are consequences for not working when you don't want to. Implying that they're not contractors.
  - tomp 11y ago
    Why would that matter? I would totally "fire" (i.e. terminate the contract) a contractor that didn't work when I needed him/her to (i.e. that didn't get the job done). Why would Uber need to be any different?
    - rada 11y ago
      The scenario you bring up is a 2-party scenario between a client (the passenger) and a service provider (the driver) while Uber claims to be in a 3-party scenario where they are a software-based logistics service in-between the passenger and the driver. Their entire legal argument is resting on the claim that they are merely facilitating the scheduling and the payment of the ride. Incidentally, if it were a 2-party scenario where you required a specific contractor to be available on demand, you would probably be their legal employer. A mandated, regular schedule is indeed one the main tests when distinguishing between an employee and a contractor. I have worked as a software contractor in the US for over almost 15 years and the employers, especially the larger ones with proper HR departments, have been careful to define my work in terms of skills and deliverables, not hours worked.