Gig News — December 2, 2015

Jon Weinberg

Jon Weinberg is a student at Harvard Law School.

This post is part of an ongoing series on labor and the gig economy.

O’Connor v. Uber, the major federal class action against Uber over its classification of drivers as independent contractors, continues to move forward.  Bloomberg reports that a hearing last week was held over whether drivers can seek mileage reimbursement of 57.5 cents per mile on their own vehicles going back to 2009, as well as whether more drivers can be added to the class.  According to Courthouse News, the hearing also prompted discussion on complications in calculating damages.  Separately, Reuters notes that the 9th Circuit Court of Appeals denied Uber’s request to immediately appeal Judge Chen’s order approving class certification, meaning the entire case will proceed to trial next year.

Arbitration agreements continue to be a source of disputes between gig economy workers and firms.  Per the Boston Herald, such agreements require workers to go to arbitration when disputes arise with firms, foreclosing class actions.  Lyft will ask a judge next month to throw out a misclassification suit seeking class action status because of the existence of an arbitration agreement.  Shannon Liss-Riordan, who represents gig economy workers in several high-profile suits, said that “All of these so-called sharing economy companies that call themselves technology companies, they all have it, we’re seeing it in all of those cases…This is a tactic the companies have come up with in order to try and shield themselves from class-action litigation.”

Meanwhile, Uber will face another class action lawsuit in the State of Washington.  GeekWire reports that a misclassification suit recently transferred to federal court “seeks at least $44.5 million in damages on behalf of the more than 15,000 people who have driven for Uber in Washington state since the service launched here in 2011.”  The named plaintiff, Joshua Fisher, alleges that Uber violated state labor law by classifying him as an independent contractor and thus not reimbursing him for work-related expenses or passing along gratuities, for example.  Uber responded to the suit with the following statement: “Driver-partners are independent contractors who use Uber on their own terms: they control their use of the app.  Nearly 90 percent of drivers say the main reason they use Uber is because they love being their own boss.  As employees, drivers would have set shifts, earn a fixed hourly wage, and lose the ability to drive with ridesharing apps – as well as the personal flexibility they most value.”

Uber stuck to similar argumentation in defense of its classification of drivers as independent contractors elsewhere.  In an extensive interview with CNBC, Uber head of global operations Ryan Graves said that “Over half our drivers are using the platform less than 10 hours a week…So, for this full-time discussion, that’s just not how our platform is used.  When you dig into the data on how drivers think about using Uber, to earn supplemental income, it becomes pretty obvious.”

Classification of gig economy workers continues to be a political conversation as well.  Bloomberg BNA published a comprehensive Daily Labor Report last month outlining possibilities for the emergence of a third worker classification in light of the gig economy.  The piece features quotes from members of Congress, attorneys and representatives of firms, among others.

Uber drivers in Seattle may soon be able to unionize.  The Seattle Times reports that a proposed city ordinance would give drivers the ability to bargain collectively, even as independent contractors.  Under the federal National Labor Relations Act, only employees have collective bargaining rights.  The Seattle City Council will vote on the proposal this month.  Uber and Lyft oppose the measure, and Uber has threatened to sue Seattle if it is approved.

In commentary, Noah Lang writes for TechCrunch that gig economy firms re-classifying workers as employees are doing so “because it’s a better way to build their businesses” due to scale, specialization, and timeliness considerations; Robert Reich argues in The Christian Science Monitor that gig economy firms should be responsible for labor protections and insurance as employers; and Governing columnist Alex Marshall believes the co-op model could be a possible solution for gig economy firms.

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