On Friday, SF Weekly reported that the California Employment Development Department found a second former Uber driver to be an employee, and thus eligible for unemployment benefits, with more drivers possibly to follow. Patrick Ely was awarded $350 a week after completing a form and a telephone interview. In awarding benefits, the agency determined that Ely was in fact an employee and not an independent contractor, according to Ely’s attorney Mark Burton:
The key to Ely winning unemployment is the amount of control Uber had over his work, Burton said. “And the most important factor in control is whether they can get rid of you at any time, just like an employee.”
“That was the whole basis of this claim: are you going to be forced to pick up rides under the threat of being fired?” Burton added. “Are you being forced to lose money driving for them after they adjusted the rates? If you have no control over that, then OK — you’re an employee.”
The same agency found another former Uber driver to be an employee last year, and separately the California Labor Commission ruled a different former Uber driver was also an employee. None of these decisions create precedent, but this decision possibly represents the first time a single state agency has separately found different Uber drivers to be employees.
The present case is particularly interesting because the Economic Development Department had Ely complete an extensive questionnaire tailored to UberX drivers. The existence of the questionnaire shows that the agency is seriously considering the classification status of gig economy workers, and that more former Uber drivers might be able to successfully apply for unemployment benefits. The decision also represents an application of California law finding an employment relationship (as Professor Sachs argued should be the case here, here, and here) ahead of a major class action set for trial this year.