Jon Weinberg is a student at Harvard Law School.
The Recorder reports that Uber has “successfully persuaded a private arbitrator that a California driver for the transportation company is an independent contractor, not an employee, in the first arbitration in the United States to test that issue.” While drivers continue to challenge Uber’s mandatory arbitration agreements in court, the arbitrator’s decision represents the outcome of the first of what could become many individual challenges by drivers asserting proper classification as employees, if arbitration agreements are enforced.
Arbitrator Michael Marcus applied the Borello test, which is used to determine proper classification under California law and gives considerable weight to the control exercised by the alleged employer over the worker. After considering the Borello factors in light of the facts and circumstances of the particular driver’s relationship with Uber, Marcus concluded that Uber lacks the requisite control over the particular driver, or any comparable driver, to be considered an employer. He particularly noted that Uber does not guarantee rides, require minimum activity time, prevent drivers from driving for competitors, or direct driver routes. Marcus’ conclusion contrasts with that of Professor Sachs and others.
Shannon Liss-Riordan, who continues to litigate the most prominent driver classification cases against Uber and has yet to file a case for arbitration due to pending litigation, told The Recorder that individual arbitrations are insignificant and lack precedential value:
In arbitration, you may win some and lose some, depending on what arbitrator you get in front of,” Liss-Riordan said in an email. “This is just a very inefficient system for adjudicating a widespread issue.
While the driver in question will not be classified as an employee and receive the corresponding benefits or protections, Liss-Riordan indicates the robust efforts of driver advocates will continue unabated.
Daily News & Commentary
Start your day with our roundup of the latest labor developments. See all
February 25
OSHA workplace inspections significantly drop in 2025; the Court denies a petition for certiorari to review a Minnesota law banning mandatory anti-union meetings at work; and the Court declines two petitions to determine whether Air Force service members should receive backpay as a result of religious challenges to the now-revoked COVID-19 vaccine mandate.
February 24
In today’s news and commentary, the NLRB uses the Obama-era Browning-Ferris standard, a fired National Park ranger sues the Department of Interior and the National Park Service, the NLRB closes out Amazon’s labor dispute on Staten Island, and OIRA signals changes to the Biden-era independent contractor rule. The NLRB ruled that Browning-Ferris Industries jointly employed […]
February 23
In today’s news and commentary, the Trump administration proposes a rule limiting employment authorization for asylum seekers and Matt Bruenig introduces a new LLM tool analyzing employer rules under Stericycle. Law360 reports that the Trump administration proposed a rule on Friday that would change the employment authorization process for asylum seekers. Under the proposed rule, […]
February 22
A petition for certiorari in Bivens v. Zep, New York nurses end their historic six-week-strike, and Professor Block argues for just cause protections in New York City.
February 20
An analysis of the Board's decisions since regaining a quorum; 5th Circuit dissent criticizes Wright Line, Thryv.
February 19
Union membership increases slightly; Washington farmworker bill fails to make it out of committee; and unions in Argentina are on strike protesting President Milei’s labor reform bill.