Florida Agency Says Uber Drivers Are Employees, Not Contractors
from the that's-a-problem dept
There are a series of big important lawsuits currently under way, exploring the question of whether or not drivers for ride hailing services like Uber and Lyft are “employees” or “contractors.” It seems fairly obvious that they should be contractors — they use their own equipment, they set their own schedules, they work on their own, etc. However, some are really trying to have them declared as employees, giving them access to things like regular salaries, overtime pay, benefits and such. It would also, most likely, mean many fewer opportunities for drivers, less flexibility and a lot less innovative a service. While the lawsuits are ongoing, down in Florida, the Department of Economic Opportunity has skipped all the judicial nonsense and just declared that Uber drivers are employees, allowing them to sign up for unemployment benefits.
This week, Florida notified Cutler Bay?s Darrin McGillis that he was in fact an employee of Uber while driving for the company earlier this year.
?I?m no longer an independent contractor,? the 46-year-old said while driving in the seven-seat Mitsubishi Outlander he bought to boost his Uber income. He?s now hoping there might be a change to pursue reimbursement on gasoline and even overtime. ?All these things come into play.?
Yes, you can understand why some drivers want this kind of designation — but it seems ridiculously short-sighted. It will almost certainly mean fewer opportunities for those drivers and a lot less flexibility. Yes, there are some “on demand” companies that seem to be skirting the rules and having “employees” who they pretend are contractors. But when the participants truly are independent, get to set their own schedule and are using their own equipment, it seems ridiculous to argue that they’re anything but independent contractors.
In this particular case, the guy is upset because he chose to buy an SUV for Uber… and then ran into an issue with a passenger accidentally smashing his door into a scooter. Uber’s insurance covers drivers, and it appears that the company told him to file a claim for reimbursement over the damage — but the guy chose to go after the passenger directly — leading Uber to kick him out of the program. And now he’s pissed off that he bought a big SUV that he no longer needs:
The trouble came during the Ultra Music Festival in March. An Uber passenger opened his Outlander?s door only to have it whacked by a scooter, according to McGillis? account. An email exchange between him and the company show that Uber urged him to file a claim, but McGillis wanted the passenger?s address to pursue reimbursement. Uber refused, citing privacy concerns.
?I am going to the passenger?s home tonight to get their names since you won?t provide them,? McGillis wrote in a March 30 email to an Uber executive.
By April, Uber had deactivated McGillis? driver account, freezing him out from potential fares. It also paid for the damages. He filed for unemployment benefits, saying he was wrongly terminated. Uber has until June 9 to appeal the state?s ruling. McGillis said he?s living off of savings and facing a $600 monthly car payment he can?t afford.
?I?m a single guy. I don?t need an SUV,? he said. ?Here I am in this big car. What am I supposed to do with it??
This just sounds like someone who doesn’t want to take responsibility for his own decisions. No one made him buy the SUV. A few months back, on our podcast about what it’s like to drive for Uber & Lyft, we discussed this very issue. Some drivers seem to have unrealistic expectations and are sinking a ton of money into buying new vehicles, without realizing what a massive risk they’re taking. But that doesn’t mean that the liability for that risk should automatically be shifted over to the companies. But, if this ruling stands, that’s how things are moving in Florida, putting a potential damper on important and useful services.
Filed Under: contractors, department of economic opportunity, employees, employment, florida, innovation
Companies: uber
Comments on “Florida Agency Says Uber Drivers Are Employees, Not Contractors”
'Biting the hand that feeds you' comes to mind
An email exchange between him and the company show that Uber urged him to file a claim, but McGillis wanted the passenger’s address to pursue reimbursement. Uber refused, citing privacy concerns.
“I am going to the passenger’s home tonight to get their names since you won’t provide them,” McGillis wrote in a March 30 email to an Uber executive.
Gee, can’t for the life of me figure out why Uber might not have wanted to hand over that information, given his actions up to that point…
It also paid for the damages. He filed for unemployment benefits, saying he was wrongly terminated.
‘Wrongfully terminated’? He threatened to go to the house of one of his passengers to demand their names(something 30 seconds could have gotten him if he knew where they lived, showing him to be irresponsible and technologically clueless), rather than just filing a claim, despite the fact that Uber paid for the damages to the vehicle. There’s nothing ‘wrongful’ about that, were I running a company I wouldn’t want someone like that working for me either.
Yes, you can understand why some drivers want this kind of designation — but it seems ridiculously short-sighted. It will almost certainly mean fewer opportunities for those drivers and a lot less flexibility.
I only hope this turns around and bites them, hard.
“You want to be an employee, rather than a contractor? Fine, here’s your hours, and you now no longer have the choice of fares, if one comes up in your area while you’re on the clock, you will accept it. You don’t want to work during your shift for some reason, you can use your vacation or sick days, other than that, you do your job or you get fired.”
Oh yeah, I’m sure the drivers would love that change.
Re: 'Biting the hand that feeds you' comes to mind
but I think that’s kinda the point. If he is an independent contractor he should more likely be allowed to independently sue. If he’s an employee then that’s different.
Now whether or not Uber should give personal information is a different story. Perhaps he could get a court order for that information first from Uber.
Re: Re: 'Biting the hand that feeds you' comes to mind
Now whether or not Uber should give personal information is a different story. Perhaps he could get a court order for that information first from Uber.
Exactly. He can sue whoever he wants, but without a court order – which as far as I can tell he didn’t pursue – Uber is under no obligation to provide him any information to help. And I’m glad they didn’t.
Per the U.S. Tax law he is in fact a employee. Now if he works for multiple hailing agencies then he is deemed a contact worker.
Re: effin retard
Who the fuck cares if it’s the tax code, this is why government is a drain on society, abs why we have negative gdp growth… Because bureaucratic assholes have to stick their effing fingers in our consensual and mutually beneficial transactions… We’re all taxed over 100% and would be at least 12 times richer were it not for all the sociopathic fucktards in every level of government! !
Re: Re: effin retard
Actually that would be because of the austerity both parties foisted on us. But keep DERPing out please.
Re: Re:
Going to need a citation on that one. Multiple companies has no bearing on it; you can still be a contractor while “working” for one company/agency.
Even if he IS an employee, how's he eligible?
This seems like a totally bogus decision. Even if he IS an employee, those actions would have gotten him fired. (For good reason too.) And you don’t get unemployment if you’re terminated for cause. So I just don’t see how he qualifies for unemployment either way.
Re: Even if he IS an employee, how's he eligible?
You lot in the US have weird unemployment laws/rules..
Most elsewhere on the planet if terminated for cause you actually receive unemployment benefits since if you are not terminated for cause the governments go after the employer and sue the crap out of em for wrongful dismissal (in most instances.. retrenchment is diff)
Re: Re: Even if he IS an employee, how's he eligible?
In the US, employment is usually “at will”–either the employee or the employer can end the relationship at any time, with any amount of (or no) notice, for any (or no) reason (except for the few legally prohibited reasons, like the race of the employee). If an employment contract specifies otherwise, that contract will usually control.
If you’re terminated without cause (i.e., not for anything you did or failed to do), you don’t have recourse against the employer (they have the right to do that), but you’re eligible for unemployment. If you’re terminated for cause that doesn’t amount to misconduct (e.g., you just didn’t perform very well), you’re still eligible for unemployment. If you’re terminated for misconduct, though (e.g., you threatened a customer, or you were stealing from the cash register), you aren’t eligible for unemployment.
Re: Re: Re: Even if he IS an employee, how's he eligible?
Weird…. and very serfdom like.
Though a question. Who decides what is and isn’t misconduct? Is it specific things or very arbitrary and who has the onus? Seems to me the Employee to claim unemployment should not have to prove misconduct (serious, egregious or otherwise) and should receive unemployment by default unless proven (upon balance I would hazard a guess) by the Unemployment authority.
Employers in Aust/NZ can terminate ‘at will’ though have to give specific set notice which is based on how long the employee has worked at the organisation. That termination cannot be becasue there is no more work either, otherwise that is classified as retrench3emnt which comes under a whole range of other rules with HUGE payments and fines.
An employee on other hand can leave at will at any time (even if contracted though notice needs to be given) since contracts of employment cannot force someone to do something when they don’t want to (that’s classified as slavery. Though if that happens unemployment is still given though there is a waiting period of 6 weeks or so.
Re: Re: Re:2 Even if he IS an employee, how's he eligible?
You can’t be fired at will in New Zealand. You need to have gone through a process of warnings. Verbal, written and final.
If this process isn’t followed, employees can go to the Employment Tribunal for Unfair Dismissal – fines for employers are in the thousands.
If the employer just makes life shitty so you leave you can go to the tribunal for Constructive Dismissal-fines, again, in the thousands. (fines are awarded to the employee)
There is a newish 90 day trial, where employees can be terminated almost at will, they need to be given whatever notice was written into the contract – I’ve seen contracts with 1 days notice. The courts have ruled that these are only valid if very tight rules are followed. (I’ve been on two, neither of them were enforceable)
Re: Re: Re:3 Even if he IS an employee, how's he eligible?
I was trying to make things simple for this forum. Though yes other than for ‘serious misconduct’ which is defined in the regulations a serious of written warnings (3 maximum) need to be given with all procedural fairness being given to the employee.
This is even moreso if the company does over a certain amount of turnover per annum and even more if they have over x number of employees. The fines are astronomical and can be cause to pierce the corporate veil and criminally charge (and fine) the company directors.
There has always been a 30day ‘at will’ (though again with major caveats) period too. Though 90 days is a bit too long I personally believe. Contracts with 1 days notice for employment are moot and are therefore unlawful/unenforceable contracts.
NZ & Aust employement laws are pretty similar due to the Union movement in both Countries and other similarities.
Re: Re: Re:2 Even if he IS an employee, how's he eligible?
“Who decides what is and isn’t misconduct?”
Your employment contract specifies what counts as misconduct.
It’s much more of a grey area then you make it sound. The drivers are tied to Uber’s service in order to obtain customers. Uber retains control of compensation, vehicle standards and can lay off drivers at will.
These guys can’t just go and be an independent taxi driver at any time. Which gets to the crux of the problem: Uber is an unlicensed taxi company that has been allowed to skirt existing laws and regulations. Yes, some of these regulations are outdated, but many were done for a reason.
The rules for contractor vs employee quite vague and it is likely a jury will have to decide.
Re: Re:
It’s much more of a grey area then you make it sound. The drivers are tied to Uber’s service in order to obtain customers. Uber retains control of compensation, vehicle standards and can lay off drivers at will.
In other words, they are freelancers, like me and lots of other folks.
These guys can’t just go and be an independent taxi driver at any time.
Blame the well-connected taxi cartel and their corrupt pet politicians for that, not people trying to create an alternative. Artificially shrinking the labor force isn’t gonna solve anything.
Re: Re: Re:
Yeah. The drivers are only tied to Uber’s service because Uber are the ones on the line, trying to break the government-granted taxi monopoly. Uber drivers are just contractors picking up passengers. Hopefully Uber drivers couldn’t actually be held liable if the government decides that they’ve been breaking the monopoly laws this whole time…
Re: Re:
These guys can’t just go and be an independent taxi driver at any time. Which gets to the crux of the problem: Uber is an unlicensed taxi company that has been allowed to skirt existing laws and regulations. Yes, some of these regulations are outdated, but many were done for a reason.
Given how many similar services there are to Uber, I think that’s wrong. They can absolutely go off and drive for Lyft, Sidecar, Postmates, Doordash, Luxe, Zirx, Shyp, etc. etc. etc.
Re: Re: Re:
So strictly speaking you’re wrong to disagree with “These guys can’t just go and be an independent taxi driver at any time”.
An individual can’t pick up passengers by themselves because that’s an illegal disruption of the taxi monopoly.
The drivers can only either buy into the government-granted taxi monopoly, or they can contract out to a company that’s willing to concoct various excuses as to why their company doesn’t need to buy into the taxi monopoly.
I can’t see anywhere that an individual can just go and act as an independent taxi service.
The guy in the story is still an self-destructive asshat, though.
Re: Re: Re: Re:
I can’t see anywhere that an individual can just go and act as an independent taxi service.
If Uber can do it, why not some schmuck? It’s not as though Uber has gotten the approval of some regulatory agency to set up shop, they just started doing business. If I want to start Nasch’s Car Service and give people rides I have as much right. Do you think people only have the right to start a business if the government says it’s OK?
Re: Re: Re:
Why does anyone act like it matters that people can drive for multiple companies at the same time? So what? Whether a person can drive for competing companies at the same time is dependent on whether they’ve signed a non-compete agreement, not whether they’re “independent” or an “employee.” Walmart could require all new employees to agree to not work for Target on their off hours. But if they don’t, the fact that Walmart employees can work at Target when they’re not scheduled and vice versa doesn’t mean they magically cease to be employees of both.
Re: Re: Re:
Some of the local minicab drivers here also work for Uber, they’ve got the logo on their vehicles. It’s entirely possible.
Don’t independent contractors set their own rates and fees? Can Uber driver set their own rates and fees?
Take for example a construction contractor. Such contractors place bids for how much they’ll re-roof a house for. Can Uber drivers place bids for picking up a passenger and driving them to a destination?
Re: Re:
Yes, independent contractors do. However, their clients aren’t obligated to let the contractor set the rate the client’s willing to pay. If I say I need a carpenter for a job and I’m willing to pay $35 per hour the job takes (with the carpenters submitting estimates of how long it’ll take them, but I’m still going to pay based on actual hours taken and not the dollar value of the estimate), a carpenter who wants $45/hour isn’t going to get $45/hour. He’ll either accept the $35/hour I’m offering or I’ll decline his services. Same for Uber, they’re willing to offer a fixed rate and if you want more they simply won’t contract with you.
Sorry Techdirt, your bro love of Uber is blinding you to the law
From the IRS regulations:
http://www.irs.gov/Businesses/Small-Businesses-%26-Self-Employed/Independent-Contractor-Self-Employed-or-Employee
Common Law Rules
Facts that provide evidence of the degree of control and independence fall into three categories:
Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
(for Uber: YES )
Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
(For Uber: YES)
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
(For Uber: YES)
The law is pretty clearly against Uber and a number of the other sharecropping companies.
Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
Nsiled it so pardon me if I’m not shedding tears over the ruling.
Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
TL;DR: If you read the links on the page you gave, you’ll see that the law (as the IRS sees it) is nowhere near as clearly against Uber as you think it is.
First, the link you gave isn’t to IRS regulations; it’s an information page. Second, just as there are many definitions of personhood depending on the context (a corporation is a person for some purposes and not for others, for example), whether a person is an employee depends on large part on why you’re asking–the IRS tends to be pretty expansive in defining employees, while many other contexts are less broad. Third, none of the three categories you give is nearly as clear as you’re suggesting. On that page, each of the three categories you list is a link to another page with more detail, and in most cases that detail runs counter to the conclusions you’ve stated.
For behavioral control, the IRS page breaks it down into types of instructions given, degree of instruction, evaluation systems, and ongoing training. The following examples are given of types of instructions:
Of these examples, only the last even arguably applies to Uber. The degree of instruction and ongoing instruction are both pretty minimal, and would likely favor a conclusion that the driver is a contractor. I don’t know enough about the evaluation systems to say one way or the other.
Similarly, most of the aspects under financial point to a conclusion that the drivers are contractors. The IRS page breaks this subject down into significant investment, unreimbursed expenses, opportunity for profit or loss, services available to the market, and method of payment. Significant investment: the more you invest in your own tools and equipment, the more likely you are to be a contractor (Uber drivers use their own cars, a significant investment). Unreimbursed expenses: The greater the proportion of your unreimbursed business expenses, the more likely you are to be a contractor (Uber doesn’t reimburse for any expenses, as I understand it). Opportunity for profit or loss: the possibility of incurring a loss is a strong indication that you’re an independent contractor (clearly possible with Uber, just look at the story we’re discussing). Services available to the market: Independent contractors typically advertise and seek out business on their own (Uber drivers don’t generally do this). Method of payment: Employees are typically paid by the hour or by fixed salary, contractors are generally paid by the job (Uber’s payment is closer to “by the job”).
Finally, on “type of relationship”, things get murkier. The first point the IRS uses is written contracts, and they appear to mention them only to say they don’t pay attention to them. The existence of a written contract by itself doesn’t make a person either an employee or an independent contractor, and what that contract says as to the individual’s classification isn’t binding on the IRS either. As to employee benefits, Uber provides only liability insurance, and coverage for the driver’s vehicle while he’s driving. No vacation, sick time, disability, retirement, etc. On permanency of the relationship, it clearly isn’t. Drivers do, however, provide the key activity of the business.
There is an argument under all three areas for classifying Uber drivers as employees, but it’s pretty weak. In each of those three areas, most of the details point toward independent contractor status, but there are some that would be consistent with being an employee.
Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
I actually think there are strong arguments that each of the things you said point towards “employee” actually go the other way:
Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
(for Uber: YES )
I don’t think so. With Uber the driver decides when to work, where to work, whether to pick anyone up and how to do their job. So… nope. That one says “contractor”.
Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
(For Uber: YES)
Again, this looks like contractor wins. Yes, the company pays the driver, but that’s true of any contracting relationship. Here, expenses are NOT reimbursed, the drive provides the tools and supplies. So… point: contractor.
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
(For Uber: YES)
Again, you seem to be misreading this. There is no pension plan, vacation pay, etc. The only possible point that might go the other ways is on the “work performed” question, but even there it seems sketchy. Uber is a platform. Under your reading, even people who sell on eBay should be considered employees of eBay, since that’s a “key aspect” of eBay’s business.
So it seems pretty clear to me that Uber drivers are absolutely contractors, even under the rules that you listed.
And, as someone else pointed out in another comment, those are not the only rules the IRS looks at, and almost all of the other ones also point towards contractor.
So, I think you’re wrong on this one.
Re: Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
This is a circular argument. To say that workers are independent contractors because their expenses aren’t reimbursed means that an employer can transform its workers from “employees” to “independent contractors” by dumping as many expenses as possible on them.
Re: Re: Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
No, it isn’t a circular argument. One of the (many) factors the IRS uses when determining whether an individual is an employee or a contractor is whether that individual’s work-related expenses are reimbursed. Contractors’ expenses generally are not, while employees’ expenses generally are. No single factor is determinative, but all are considered. A number of these comments describe some of the factors.
Techdirt, you screwed the pooch on this one
He’s an employee. Learn the law (even if you don’t like it).
Re: Techdirt, you screwed the pooch on this one
“He’s an employee.”
Well, thanks for that detailed rebuttal and well-cited argument, you’ve really changed the minds of everyone reading this article. Especially since you made an identical assertion to someone who had posted over 2 hours ago, but had actually backed up his own claim.
On top of that, nothing in the article says that he isn’t an employee, only that in the opinion of the author that shouldn’t be the case. perhaps next time, you can hold off long enough from leaping at a chance to attack the site to either present an actual rebuttal, or attack something the author actually states? Or at least not make an identical attack that’s already been better stated long before you opened the article?
Re: Re: Techdirt, you screwed the pooch on this one
The real problem is that the author says “It seems fairly obvious that they should be contractors — they use their own equipment, they set their own schedules, they work on their own, etc.”. But then he lists things that have very little or no bearing on whether someone is classified as a independent contractor.
For instance “they use their own equipment”. many, many tradesmen use their own tools (think technicians, airplanecar mechanics, electricians, carpenters, pizza delivery people) but are employees of corporations.
And take the statement “they work on their own”, lots of employees work on their own, but I’m not even sure its true in this case because somebody is administrating the electronic hailing system that facilitates the driver getting a fare. Without the IT people in the data center the driver does not get a fare, so is he really working alone?
And finally “they set their own schedules”, well this comes close to being relevant but the IRS does not address this directly, per the IRS the general rule of thumb for being a independent contractor is “if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.”
Re: Re: Re: Techdirt, you screwed the pooch on this one
For instance “they use their own equipment”. many, many tradesmen use their own tools (think technicians, airplanecar mechanics, electricians, carpenters, pizza delivery people) but are employees of corporations.
The IRS’s own rules state clearly: “who provides tools/supplies” as a criteria. And, actually, many of the ones you site above are considered contractors not employees. Many, many mechanics, carpenters, electricians — even those working on big jobs — are classified as contractors.
And take the statement “they work on their own”, lots of employees work on their own, but I’m not even sure its true in this case because somebody is administrating the electronic hailing system that facilitates the driver getting a fare. Without the IT people in the data center the driver does not get a fare, so is he really working alone?
This is in response to the IRS criteria of if the company has “the right to control what the worker does and how the worker does his or her job?”
That’s not true in this case. The driver only is told where a fare is. But from then on, the driver has complete freedom in determining how to do his or her job. That sides with “contractor”.
Re: Re: Re:2 Techdirt, you screwed the pooch on this one
If you think about it, the driver does NOT provide all the toolsequipment here. The Uber app the driver uses is clearly a tool and a very important one in this.
Re: Re: Re:3 Techdirt, you screwed the pooch on this one
If you think about it, the driver does NOT provide all the toolsequipment here. The Uber app the driver uses is clearly a tool and a very important one in this.
You’re really reaching. The rule is not that you have to supply ALL of the tools yourself. I know plenty of contractors who supply their own computers to work on someone else’s software. The use of a software tool is not, as you argue, damaging to the contractor employee question.
Under your ridiculous definition, anyone using eBay or Yelp must be an employee too, right?
Re: Re: Re:4 Techdirt, you screwed the pooch on this one
Under his definition, I’d be an employee of Techdirt for posting this.
Re: Re: Re:3 Techdirt, you screwed the pooch on this one
There is no requirement that an individual provide all required tools in order to be considered an independent contractor, nor conversely is there a rule that if the “employer” provides any or all of the required tools, the individual is an employee.
Really, that’s the problem here. As with many areas of the law, there simply isn’t a clear, objective rule. The IRS page cited upthread is a reasonable summary of the common law, and as it indicates, there are a bunch of factors to consider, weigh, and balance. The factors are not binary, and there is no set number that is determinative one way or the other.
So, if the employer tells you when and where to do the work, that’s a factor suggesting that you are an employee (yes, setting your own schedule is very directly relevant–that link is to an IRS page). If you have to provide some, most, or all of the tools required to do the job, that’s a factor suggesting (more strongly, the greater the proportion of tools you provide) that you’re a contractor. If you do your own advertising and find your own customers, that suggests that you’re a contractor. If you’re paid by the hour for the time you’re at work, that suggests you’re an employee. If the putative employer is providing health care, vacation and sick time, and a 401(k), that suggests pretty strongly that you’re an employee. If you have a risk of losing money on the deal, that suggests pretty strongly that you’re a contractor.
And so on, and so on, and so on. There are lots of factors, and it’s very fact-specific. You can’t just focus on one, or a handful, and think that the issue’s settled.
Re: Re: Re: Techdirt, you screwed the pooch on this one
Well, there we go, an actual response. Doesn’t that feel better rather than going “nuh uhh you’re wrong”? You’re still not really explaining your original blanket statement, though. For example:
“many, many tradesmen use their own tools… but are employees of corporations.”
…and many aren’t. Many people also work exclusively in private premises that are owned by a corporation, but are not considered employees of that corporation.
“Without the IT people in the data center the driver does not get a fare, so is he really working alone?”
Without his phone carrier he also doesn’t get the fare, but that doesn’t make him an employee of AT&T.
Thanks for responding, but this doesn’t really explain why you’re so convinced that Mike was wrong that your only response before challenge was to mock and attack. I have no horse in this particular race, but I’m curious as to exactly why the employee and only the employee status would apply to an Uber driver, especially since the original article was a statement of opinions based on the spirit rather than the letter of the law. Perhaps now that you’re open to debate, you might wish to explain further?
Re: Re: Re:2 Techdirt, you screwed the pooch on this one
Does Uber control the route the driver must take, (via their navigation system)?
Re: Re: Re:3 Techdirt, you screwed the pooch on this one
Does Uber control the route the driver must take, (via their navigation system)?
Pretty sure they don’t.
Uber seems to also have a lot of requirements on the type of car drivers can use. That would seem to go against the IRS statement “right to control or direct only the result of the work and not what will be done and how it will be done”.
Seems like another stretch. I don’t think requirements for having a safe car, or other generalities about equipment suitable for the job, would make an Uber driver an employee. The driver is responsible for selecting, acquiring, and paying for the car. AFAIK there isn’t even a process where Uber has to approve the selection of make, model and year. Definitely sounds like a contractor to me.
Re: Re: Re:3 Techdirt, you screwed the pooch on this one
“Does Uber control the route the driver must take, (via their navigation system)?”
I have no idea, but are there penalties for not following it or is it simply a suggested route that the driver can use his own discretion to override? Not living in the US, I’ve had limited experience with the service, but when I used it with a friend in San Francisco a few months back one driver definitely had issues with his data connection and had to drive his own route. So, I’d presume it’s something to make sure drivers know the correct route or track those who rip off customer with excessive detours (and take action if necessary) rather than “control”.
But, what of it? Whenever I’ve delved into contract work, there’s always been demands on the parameters of how the work is undertaken, and that didn’t make me an employee of the company just because they supplied the guidelines.
Re: Re: Re:2 Techdirt, you screwed the pooch on this one
Uber seems to also have a lot of requirements on the type of car drivers can use. That would seem to go against the IRS statement “right to control or direct only the result of the work and not what will be done and how it will be done”.
Re: Re: Re:3 Techdirt, you screwed the pooch on this one
If being required to have the equipment necessary to do the job being contracted for turned a contractor into an employee, then there is no such thing as a contractor.
Re: Re: Re:3 Techdirt, you screwed the pooch on this one
So, by that standard, if I work for a company that demands I use a Windows-based laptop and I have to buy one to use instead or my OSX or Linux, I’m suddenly an employee and not a contractor?
ITT: people who have absolutely no clue about employment law spouting off erroneous and ludicrous opinions about it. Mike has this correct. The Florida department ruled incorrectly, maybe they’re as ignorant as many of the commenters here.
Make mine a small
“McGillis said he’s living off of savings and facing a $600 monthly car payment he can’t afford. “I’m a single guy. I don’t need an SUV,” he said. “Here I am in this big car.”
Bogus. I own a Mitsu Outlander. It’s a mid-size crossover ute. It seats four comfortably; you don’t want to be number five, stuck in the middle on the hump. They now offer an optional third row seat bench; good luck trying to get into it back there.
Tricked out, mine was less than $30k new; monthly payment financed through Mitsubishi was ~$350. No way he has a $600 monthly payment, unless he’s as much an idiot as his other described actions make him appear.
Thanks Mike
Nice to see a pro free enterprise/capitalism article from Mike.
Florida’s stance on Uber illustrates how government regulations favor incumbent players in the market place and stifle innovation.
Re: Thanks Mike
Nice to see a pro free enterprise/capitalism article from Mike.
Are you new around here?
Providing tools....
A number of commenters have stated service techs are using their own tools. They likely have never seen want ads requiring the tech to provide their own tools or they will not be hired. In some cases the ad states that the tech must provide their own truck or van!
This has been going on for years, even before Uber and Lyft became words. And don’t think the employer gets out of liability for this: there have been court decisions holding the employer liable for off-duty accidents because of such requirements.
Uber
I suggest to read the judgement of SF court at uberlawsuit.com. Uber is contractor for a commercial transport of people and charges the whole amount. Without drivers Uber could not fulfill the contract.
There is a distraction here about the ‘providing tools’.
That’s a factor that goes into the decision. Just one element, and not a deterministic one.
It’s common for mechanics to provide their own tools as employees. That’s typically a five figure investment, with some having $100K in Snap-On boxes and tools, as employees. (If you know Snap-On prices, where a regular ratchet is over $100, that’s easy to believe. But you get service such as on-site shopping, hand delivery of warranty replacements, and free moving of a several ton toolbox when you change jobs.)
I don’t see the elements of employee-employer relationship here. It’s especially clear with the vehicle purchase. He selected and bought the SUV on his own. Uber set minimum standards, but no other requirements. They had no control over the car type, where he purchased it, purchase price, or operating costs.
Around here, the typical Uber driver either has a Prius (casual driver) or a limo/Town Car (limo service using Uber for marketing). Having the freedom to make major financial choices, even bad ones before the first day working, is a hallmark of a contractor.
Look at IRS Form SS-8. It is the questionnaire that determines whether someone is an independent contractor or not. One big thing about that determination is whether you are required to personally perform the service. With Uber and Lyft, clearly you are. With a painter, he’s free to sub it out. Another factor is the degree of control Uber exercises over how work is performed. From what I understand, Uber and Lyft both have a fairly extensive set of guidelines that must be followed.
At the end of the day, both Uber and Lyft seek to avoid paying employer payroll taxes, thwart unionization and shirk corporate obligations under the ACA. More corporate fuckery as far as I’m concerned and it’s discouraging to see so many here rush to the misguided defense of 1%ers.
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it’s discouraging to see so many here rush to the misguided defense of 1%ers.
The comments here are not in the spirit of defending the ultra-rich. It’s a matter of figuring out what the law actually says, and also speculating on the effects of a ruling. Regardless of what is better for Uber (I personally don’t care, and doubt many others do either), what would be better for Uber drivers and for the public? I don’t think it’s at all clear that either of those groups would be better off if Uber has to treat drivers as employees.
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Well, for starters there’d be more money for lower wage workers who tend to spend it (creating economic activity) than it going to the wealthy who tend to sit on it- despite the trickle-down lies told by Gov. Brownback (KS) and his ilk. Independent contractors are also denied the right to bargain collectively which means it’s “my way or the highway” for workers. Minimum wage laws don’t cover independent contractors. No employer mandate under the ACA which means more uninsured (which shows up in the rest of our insurance premiums).
I use Uber and like it a lot. but I really dislike corporations throwing their weight ($) around to the detriment of working people and so should the rest of you. Whether in the spirit of defending the rich or not; the effect is the same. This sort of chicanery takes place in all sorts of industries and there is a reason for it: to transfer corporate tax obligations to workers. It’s bullshit and I’d hope people would see it as such.
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Well, for starters there’d be more money for lower wage workers
Why is that? Uber would give up some of its profits to benefit employees? Or it would charge more to cover its increased costs?
Independent contractors are also denied the right to bargain collectively which means it’s “my way or the highway” for workers.
Contractors can’t unionize? Aren’t there unions for plumbers and electricians and such? They’re contractors aren’t they?
Minimum wage laws don’t cover independent contractors.
Does Uber pay less than minimum wage?
No employer mandate under the ACA which means more uninsured (which shows up in the rest of our insurance premiums).
That would apply to any contractor situation. Are you arguing against the entire concept of the independent contractor?
I use Uber and like it a lot. but I really dislike corporations throwing their weight ($) around to the detriment of working people and so should the rest of you.
You disapprove of their business model, find it detrimental to its employees and society, and feel personal disdain for its owners, but you use it anyway?
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“Well, for starters there’d be more money for lower wage workers”
Why is that? Uber would give up some of its profits to benefit employees? Or it would charge more to cover its increased costs?
There’s a concept, putting people (nominally) ahead of profits.
“Independent contractors are also denied the right to bargain collectively which means it’s “my way or the highway” for workers.”
Contractors can’t unionize? Aren’t there unions for plumbers and electricians and such? They’re contractors aren’t they?
Read the National Labor Relations Act
“Minimum wage laws don’t cover independent contractors.”
Does Uber pay less than minimum wage?
It’s piece work. So not necessarily.
“No employer mandate under the ACA which means more uninsured (which shows up in the rest of our insurance premiums).”
That would apply to any contractor situation. Are you arguing against the entire concept of the independent contractor?
No. Just contrived ones like Uber.
“I use Uber and like it a lot. but I really dislike corporations throwing their weight ($) around to the detriment of working people and so should the rest of you.”
You disapprove of their business model, find it detrimental to its employees and society, and feel personal disdain for its owners, but you use it anyway?
I feel the same way about many companies. Google’s spying, Apples walled garden, the shitty customer service from Verizon FIOS and many others. They still represent the best alternatives and almost every company can do better by its employees.
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Well, for starters there’d be more money for lower wage workers who tend to spend it (creating economic activity) than it going to the wealthy who tend to sit on it- despite the trickle-down lies told by Gov. Brownback (KS) and his ilk.
You honestly think that if the costs to Uber go up, it’ll lead to more money for the drivers? There’s nothing to support that at all. In fact, it will mean a lot less for most drivers, because they won’t be working for Uber any more. It may mean more for a few, but it may not be much more, because the costs of Uber will rise, there will be fewer drivers and utilization will likely drop, making the service less useful for many people.
I don’t see how that helps drivers unless you don’t understand how non-zero sum situations work.
Independent contractors are also denied the right to bargain collectively which means it’s “my way or the highway” for workers.
Sure they can bargain. They can also work (or threaten to go work) for one of the many, many competitors out there. There’s a giant marketplace right now for these kinds of workers, and if Uber treats them like shit, they can shift to others. My friends who have tried out some of these services note that the recruitment efforts are crazy right now, with many promising bonuses and the like to get them to try working for other services. In other words, it looks like the companies don’t have market power right now like you think they do.
Could that change in the future? Possibly. But let’s deal with that reality other than your fantasy.
I really dislike corporations throwing their weight ($) around to the detriment of working people and so should the rest of you.
Again, how do you figure? If they are declared as employees, that means Uber would likely drop a huge percentage of current drivers — meaning they’d now make nothing. How does that help those “working people”? By removing a way they can earn money today? Is that what you really want?
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Uber CEO Kalanick is a BILLIONAIRE. While I doubt it occurs to a greedy fuck like yourself, there is a certain point where one is rich enough and scrounging in the dirt for nickels is less satisfying and has less utility than taking care of those who helped you amass such tremendous wealth.
Let me guess Masnick, I imagine the people who work for you, coincidently, are also “independent contractors”. You don’t pay the employer share of payroll taxes or contribute toward their health insurance, I’d wager.
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Uber CEO Kalanick is a BILLIONAIRE.
Why does that matter one way or the other? (Besides, he’s technically only a billionaire on paper, but so what?) Do you not think that people can become wealthy themselves while also providing useful goods and services?
While I doubt it occurs to a greedy fuck like yourself, there is a certain point where one is rich enough and scrounging in the dirt for nickels is less satisfying and has less utility than taking care of those who helped you amass such tremendous wealth.
I don’t disagree with that. I actually agree that the wealth accumulation by some in this country is obscene and problematic. But I don’t see what it has to do with anything I said. You dislike Travis because he’s amassed a lot of paper wealth. Fair enough. But that has nothing to do with the situation with drivers.
Let me guess Masnick, I imagine the people who work for you, coincidently, are also “independent contractors”. You don’t pay the employer share of payroll taxes or contribute toward their health insurance, I’d wager.
You imagine incorrectly. Most of my staff are fully employed (and, in fact, most have some equity as well, such that I actually don’t own all that much, as I’ve spread it around much more generously than most — perhaps too much). Not only that, but I have the fun of dealing with different regulations in multiple states and countries because the full time staff is distributed.
That said, we do have some contractors and freelancers, but they’re only those who clearly fall into such categories.
So, perhaps, rather than being a total jackass with your assumptions (nearly all of which have been wrong) you could step back off your high horse, and think that maybe I’m not the caricature you’ve built up in your head.
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Most billionaires are “billionaires on paper”. Most wealth is “on paper” in the form of corporate ownership, bonds, real estate or other asset ownership. Few people have a storage locker full of cash like Walter White. And I’d guess just about every billionaire obtained their wealth by providing useful goods and services.
I don’t “dislike” Travis for amassing wealth. I dislike the notion that treating his employees as employees and properly contributes payroll taxes and maybe even addressing human needs like health insurance evokes a knee-jerk jump in costs and the massive layoffs you believe are the inevitable result.
My apologies if I underestimated your generosity toward your employees. Your rhetoric on the subject led me in that direction. Perhaps your reactive defense of every disruptive business model that comes along may benefit by a more tempered, thoughtful approach. Just a thought.
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More corporate fuckery as far as I’m concerned and it’s discouraging to see so many here rush to the misguided defense of 1%ers.
Has nothing to do with defending the 1%ers. In fact, I’d argue quite the opposite. If you define Uber drivers as employees, the price goes up, and the utility of Uber for everyone goes down. That includes drivers who are making money from it today, as well as people who use it to get around.
Yes, it also would help Uber, but it’s a piss poor argument to say that we should hate on big companies just because they’re big… even if it harms everyone else. Here the interests are aligned.
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Spoken like a true 1%er, Masnick. They are (at least in FL) employees. Time will tell whether that destroys the market. Personally, I have my doubts.
You sound like one of those Teabaggers who claim that raising the minimum wage is a “job killer”. Yet the historical data since the 1930’s demonstrates that increases in the minimum wage have had no real effect on job creation at all.
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You sound like one of those Teabaggers who claim that raising the minimum wage is a “job killer”. Yet the historical data since the 1930’s demonstrates that increases in the minimum wage have had no real effect on job creation at all.
You should stop using your talking points.
I support a minimum wage. Not everyone fits into your neat little buckets.
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You really think I sit around developing talking points to diminish Uber or your blind fealty toward all things disruptive? Frankly, I have better things to do with my time.
Glad to see you support a minimum wage. I also hope that you support increasing it as well. It’s a crime that a person could work full-time and still have their family live in poverty. They then are eligible for public assistance programs, which are paid for by taxpayers. That, of course means the taxpayers are subsidizing companies workforces. That is plain wrong- particularly when many of these companies earn record profits and engage in cute offshore tax avoidance games.
Uber
This hacking on details is purely political. Why do you not want to understand the intentions of Uber and ask, wether this is a desired evolution in society? Uber takes 20, now also 30 and if they have enough drivers, 40 or even 50% of the turnover as profit without any operational risk. The profile of drivers, you may immagine, people who have nothing to loose. Worldwide, taxi-business is a low-income job and to take out 30% or more free of operational risk is ethically close to a crime. You may accept it because you have a cheap ride but if you understand yourself as part of society, its very poor.
Here are some other considerations in determining employee versus independent contractor from the IRS:
1 What specific training and/or instruction is the worker given by the firm?
2 How does the worker receive work assignments?
3 Who determines the methods by which the assignments are performed?
4 Who is the worker required to contact if problems or complaints arise and who is responsible for their resolution?
5 What types of reports are required from the worker? Attach examples.
6 Describe the worker’s daily routine such as his or her schedule or hours.
7 At what location(s) does the worker perform services (for example, firm’s premises, own shop or office, home, customer’s location)? Indicate the appropriate percentage of time the worker spends in each location, if more than one.
8 Describe any meetings the worker is required to attend and any penalties for not attending (for example, sales meetings, monthly meetings, staff meetings).

Part III Financial Control (Provide names and titles of specific individuals, if applicable.)
1 List the supplies, equipment, materials, and property provided by each party: The firm:
The worker:
Other party:
2 Does the worker lease equipment, space, or a facility? . . . . . . . . . . . .
If “Yes,” what are the terms of the lease? (Attach a copy or explanatory statement.)
3 What expenses are incurred by the worker in the performance of services for the firm?
4 Specify which, if any, expenses are reimbursed by: The firm:
Other party:
5 Type of pay the worker receives:
Salary Commission
Piece Work
Hourly Wage
Lump Sum Other (specify)
6 Is the worker allowed a drawing account for advances? . . . . . If “Yes,” how often?
7 Whom does the customer pay?

8 Does the firm carry workers’ compensation insurance on the worker? .
9 What economic loss or financial risk, if any, can the worker incur beyond the normal loss of salary
10 Does the worker establish the level of payment for the services provided or the products sold? . . . If “No,” who does?
Part IV Relationship of the Worker and Firm
1 Please check the benefits available to the worker: Paid vacations
Personal days Pensions
Sick pay Insurance benefits
2 Can the relationship be terminated by either party without incurring liability or penalty? . . .
If “No,” explain your answer.
3 Did the worker perform similar services for others during the time period entered in Part I, line 1? If “Yes,” is the worker required to get approval from the firm?
4 Describe any agreements prohibiting competition between the worker and the firm while the worker is performing services or during any later
5 Is the worker a member of a union?
6 What type of advertising, if any, does the worker do (for example, a business listing in a directory or business cards)?
7 If the worker assembles or processes a product at home, who provides the materials and instructions or pattern?
8 What does the worker do with the finished product (for example, return it to the firm, provide it to another party, or sell it)?
9 How does the firm represent the worker to its customers (for example, employee, partner, representative, or contractor), and under whose
business name does the worker perform these services?
10 If the worker no longer performs services for the firm, how did the relationship end (for example, worker quit or was fired, job completed, contract ended, firm or worker went out of business)?
period. Attach any available documentation.
Part V For Service Providers or Salespersons. Complete this part if the worker provided a service directly to customers or is a salesperson.
1 What are the worker’s responsibilities in soliciting new customers?
2 Who provides the worker with leads to prospective customers?
3 Describe any reporting requirements pertaining to the leads.
4 What terms and conditions of sale, if any, are required by the firm?
5 Are orders submitted to and subject to approval by the firm? . . .
6 Who determines the worker’s territory?
7 Did the worker pay for the privilege of serving customers on the route or in the territory? .
If “Yes,” whom did the worker pay?
If “Yes,” how much did the worker pay? . . . . . . . . . . . . . . .
8 Where does the worker sell the product (for example, in a home, retail establishment)?
9 List the product and/or services distributed by the worker (for example, meat, vegetables, fruit, bakery products, beverages, or laundry or dry cleaning services). If more than one type of product and/or service is distributed, specify the principal one.

Great Article. Thanks for the info. Does anyone know where I can find a blank “2014 IRS SS-8, [5-2014]” to fill out?