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New York Administrative Judge says Uber Drivers are Employees

Discussion in 'News' started by Maven, Jul 2, 2017.

  1. Maven

    Maven Well-Known Member

    Location:
    Connecticut
    Driving:
    UberX
    Uber loses another round in the contractor vs. Employee battle.
    _____________


    New York ALJ Takes Uber for a Ride

    Lexicology June 29 2017

    Why it matters


    In a decision with potentially significant implications, a New York administrative law judge (ALJ) held that Uber drivers are employees of the ride-sharing company. The case arose after three drivers had their accounts deactivated and sought unemployment benefits. Uber contended that because the drivers set their own schedules, selected their work areas, were not required to report absences and were not provided with fringe benefits, they should be considered independent contractors. But the ALJ disagreed, finding that Uber did not use an “arms’ length approach as would typify an independent contractor arrangement,” instead demonstrating substantial involvement with the drivers. “I find that while there are some indicia of claimant’s independence, the overriding evidence establishes that Uber exercised sufficient supervision, direction and control over key aspects of the services rendered by claimants such that an employer-employee relationship was created,” the ALJ wrote. Importantly, she added that her decision applied not just to the three drivers involved in the case but “others similarly situated” as well. Uber—which has been battling the issue across the country with mixed results—said it intends to appeal the decision.

    Detailed discussion

    Are Uber drivers employees or independent contractors? Three New York drivers sought unemployment benefits after their accounts with the ride-sharing service were deactivated. Uber balked, arguing that the drivers were independent contractors. The state’s Department of Labor issued an initial determination holding that the drivers were eligible to receive benefits, and Uber requested a hearing to appeal.

    Following the hearing—complete with testimony from the drivers and Uber representatives—ALJ Michelle Burrowes overruled Uber’s objection and found that the drivers were employees.

    The ALJ walked through the process of becoming an Uber driver, explaining the “on-boarding process” beginning with the requirement of certain documents (a driver’s license, vehicle registration and a license from the New York City Taxi & Limousine Commission). Drivers were shown a video explaining how the Uber app works and depicting best practices guidelines, such as maintaining a clean vehicle and wearing professional attire.

    Uber also published a Code of Conduct for its drivers, setting forth the minimum standards of conduct to which it expects both riders and drivers to adhere, with an explanation that failure to do so risks deactivation of access to the app. In addition, Uber published a Welcome Packet, described as containing “essential information for new Uber partners” and maintained online support resources for drivers.

    Drivers needed a vehicle and smartphone to provide rides through the app, with Uber compiling a list of the vehicles it deemed acceptable. For those looking to lease their vehicles, Uber referred drivers to an affiliated third party and, in one case, intervened when a driver became delinquent, negotiating with the lessor for an alternative payment schedule. Uber also provided one driver with a smartphone and another with a phone charger and cable.

    When a rider was picked up, the Uber app suggested a route, but drivers were expected to follow the route suggested by a rider, if given; the company also imposed rules about how long drivers had to wait for a rider. During the time period drivers are logged in to the app, Uber has the capacity to collect and review data regarding their activities, such as their acceptance and cancellation rates, the ALJ noted. Drivers are expected to accept 90 percent of ride requests received.

    The company did not provide drivers with paid vacation, sick leave, health insurance coverage or other fringe benefits, nor did Uber impose a work schedule on the drivers. Instead, drivers autonomously decided when, where and how long they would work. Drivers were allowed to procure rides from Uber’s competitors and had the ability to sub-contract drivers if they wanted.

    After relating all these facts, the ALJ found the evidence demonstrated “that Uber exercised sufficient supervision and control over substantial aspects” of the drivers’ work. “Uber did not employ an arms’ length approach to the claimants as would typify an independent contractor arrangement,” Burrowes wrote. “Uber remained involved with the means by which claimants provided transportation services for its Riders,” such as requiring compliance with a list of approved vehicles.

    “Additionally, Uber does not dispute that when [two of the] complainants lacked proper credit to secure their own vehicles, Uber not only referred them to their third-party affiliates to lease vehicles without credit, but also Uber took the additional step of withholding monies from these claimants’ fares and making lease payments on their behalf. Uber even intervened when [one claimant] was delinquent in his lease payments to the third-party lessor, to arrange an alternate payment plan … to address his arrears.”

    The ALJ rejected Uber’s position that the drivers signed a contract designating them as independent contractors as well as its characterization of the company as simply “a technology company that generates leads for drivers.”

    Uber set a mandatory wait time for riders before leaving a pickup site, the ALJ noted, retained the sole discretion to determine if that rider would be charged a wait fee, and had complete control over the fare for the ride, which was calculated by Uber’s app algorithm.

    Further, Uber continuously monitored its drivers, Burrowes found. “Uber took steps to modify the claimants’ behavior, as typical in an employer-employee relationship,” the ALJ said, publishing several documents including a Code of Conduct, which warned drivers that if they failed to accept 90 percent of all ride requests, they could face deactivation.

    “Uber also used its Riders’ responses on its five-star rating system … to monitor and evaluate a Driver’s performance in providing ride service and to determine if that Driver’s rating was unacceptable such that he should be deactivated from the app,” the ALJ wrote.

    A review of the record showed that each driver was “subjected to substantial supervision and control by Uber,” Burrowes said. “I find that while there are some indicia of claimant’s independence, the overriding evidence establishes that Uber exercised sufficient supervision, direction, and control over key aspects of the services rendered by claimants such that an employer-employee relationship was created. I conclude, therefore, that the claimants, and others similarly situated, are/were employees of the employer, Uber.”

    To read the decision, click here.
     
  2. Michael - Cleveland

    Michael - Cleveland Moderator Moderator

    Location:
    Great Lakes
    Driving:
    UberSELECT
    It's important to understand that, just like in CA and FL, the findings are those of an ALJ ("administrative law judge) - not a judge in a court. Uber will appeal this decision to an appeals board - and if they lose there, they will appeal the state court.
     
    Uberdriverlasvegas and Andretti like this.
  3. Rakos

    Rakos Well-Known Member

    Location:
    Tampa Bay
    Driving:
    UberXL
    At least its a start!
     
  4. Maven

    Maven Well-Known Member

    Location:
    Connecticut
    Driving:
    UberX
    I wonder if there are any openings on the Uber legal team. Their outlook is great, win or lose, for the foreseeable future. ;)
     
    Nomad and Michael - Cleveland like this.
  5. Michael - Cleveland

    Michael - Cleveland Moderator Moderator

    Location:
    Great Lakes
    Driving:
    UberSELECT
    no kidding... I wouldn't be surprised if Uber is sponsoring JD programs at some major law schools.
     

  6. SEAL Team 5

    SEAL Team 5 Well-Known Member

    Location:
    Phoenix
    Driving:
    Livery
    Here we go again. If the drivers really want to be employees then start practice saying "would you like that super sized?" and go apply at your local McDonalds.
    I'm getting sick of this employee crap. Idiots get involved in something that they have no clue about and when things don't work out they try and find blame to get a free ride. Almost reminds me of some of the new recruits in boot camp. The whining of some people is disgusting. If you did not know what you were getting involved in then why in the hell did you sign up to drive?
    If you were naive enough to fall for the "be your own boss, work when you want to" crap then you need to find a way to rebound on your own. Hope you learned a valuable lesson about believing everything you read on the Internet.
    P.S. YOU"LL NEVER BE AN EMPLOYEE!!!!
     
    Jdfrisco, UberwhoIaM, Rahlo and 6 others like this.
  7. Mears Troll Number 4

    Mears Troll Number 4 Well-Known Member

    Location:
    Orlando-ish
    Driving:
    Taxi
    Travis has pretty much said if they lose the Indy contractor deal, uber can't exist, and they will have to rework the ENTIRE business model.

    On top of taxes insurance ect. Employees are legally entitled to min wage free and clear of all deductions.

    Notably, employees need to make min wage AFTER per mile expenses OR vehicle rental costs.
     
    Last edited: Jul 2, 2017
    2Cents, melusine3, bobper and 3 others like this.
  8. SEAL Team 5

    SEAL Team 5 Well-Known Member

    Location:
    Phoenix
    Driving:
    Livery
    I'm sure that won't be too hard. Just pay a top notch attorney to reword a few items and I'm sure Uber will have no trouble finding idiots to continue to drive for pennies. Just like we count on Phoenix being hot in the summer, Uber counts on society being ignorant.
     
  9. Mears Troll Number 4

    Mears Troll Number 4 Well-Known Member

    Location:
    Orlando-ish
    Driving:
    Taxi
    "Free and clear of all deductions"

    That's a clause in employment law that will sink uber.

    If uber/lyft loses employee classification nationwide ride sharing is dead.

    Employees don't NEED to have expenses comped, they just have to make min wage AFTER EXPENSES.

    Assuming an uber driver puts in 10 miles every hour they would NEED to be compensated (depending on the state) $12.60 to $16.35 per hour.

    20 miles driven in an hour pushes that to $17.95 t0 $21.70 per hour.


    How uber markets do you really think are really paying out that much?
     
    2Cents, melusine3 and Andretti like this.
  10. Safe_Driver_4_U

    Safe_Driver_4_U Well-Known Member

    Location:
    San Diego
    I don't want to be an employee, I would lose my tax write off. Driving for Uber and Lyft is a superb opportunity for those that need to lose money, why ruin it with "employee" status?
     
  11. Michael - Cleveland

    Michael - Cleveland Moderator Moderator

    Location:
    Great Lakes
    Driving:
    UberSELECT
    Uber in the US, in my opinion, is driving the gig economy to the Supreme Court, which will dump the whole labor issue back into Congress' lap - where it belongs.

    The FLSA needs to be updated to reflect the today's work environment and the will of Congress (min wage protections, prevention of exploitation of labor) to cover gig workers with a new category of worker - a hybrid, something in-between employee and contractor. It should (again, just imo) end up with the corporation paying the employer share of 'employer taxes' (SSI/Medicare) & unemployment insurance on their labor force - but still allowing the worker the independence of a contractor.

    hehe... and to hell with the other 99% of drivers!
     
  12. jonhjax

    jonhjax Active Member

    Location:
    32233
    Not the other 99%. The other 99.7% of the drivers!!
     
  13. Demon

    Demon Well-Known Member

    Location:
    Orlando
    Uber drivers are employees. If you don't like that perhaps Uber isn't for you.
     
  14. KevRyde

    KevRyde Well-Known Member

    Location:
    Denver
    Driving:
    UberXL
    No, Uber drivers are independent contractors which is a business relationship that results when a driver agrees to the terms and conditions of the completely unilateral, nonnegotiable contract presented by Uber. If you don't like the terms and conditions, don't agree to the contract. If you have previously agreed to those terms and conditions and subsequently decide that you don't like them, then quit driving for Uber or don't agree to the next version of the conract that Uber presents.

    It continues to boggle my mind that so many posters on here equate independent contractor status with the ability to make up your own terms and conditions and do anything you want. The only folks who benefit from these silly law suits are the attorneys.
     
  15. dirtylee

    dirtylee Well-Known Member

    Location:
    Dallas
    Driving:
    UberX
    About the employee thing.

    Most of you truly underestimate how well uber can rig the game. Back when guarantees where $35 -$50/hr, you really did hit it or come close to it.

    With xchange vehicles, rentals, & fuel cards - yeah. They could probably swing a fleet of FT employees making $12.50/hr.
     
    MoreTips likes this.
  16. Demon

    Demon Well-Known Member

    Location:
    Orlando
    Do drivers set their own prices??
     
    melusine3 and KMANDERSON like this.
  17. SEAL Team 5

    SEAL Team 5 Well-Known Member

    Location:
    Phoenix
    Driving:
    Livery
    Here we go again. The only thing Uber drivers are is naive, ignorant and gullible. Give me the name of just 1 driver that has completed a W-4 for Uber Technologies/Raiser LLC prior to downloading the driver app. You do know that a W-4 is a federal form that is required by law to be completed by every EMPLOYEE prior to receiving any compensation from any company or entity.
    It's sure pathetic when people don't get their way they start throwing a tantrum and blaming others for their own stupidity. But it's sure great that we live in a country in which we can try and set legal precedence for our own stupidity.

    1000's of companies that do contract work for govt's at the federal, state and local levels don't get to set their own price. Cab drivers have been IC's for years, in fact the phrase independent contractor is usually blocked in letters on the driver's side door, and the cab company is the one that sets the rates. In some municipalities it's the gov't that sets the rates.
     
    NITWITone and Elmo Burrito like this.
  18. Demon

    Demon Well-Known Member

    Location:
    Orlando
    So is that a yes or a no?
     
  19. KevRyde

    KevRyde Well-Known Member

    Location:
    Denver
    Driving:
    UberXL
    No. Drivers agree to the rates that Uber sets when they sign the contract. How do you not know this?
     
    Elmo Burrito and driverx.nj like this.
  20. Demon

    Demon Well-Known Member

    Location:
    Orlando
    Then they aren't independent contractors. Thanks for clearing that up.
     
    2Cents, UberPal, LA_Native and 4 others like this.

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