Editorials

Uber, the Gig Economy, and Labor

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

OnLabor will soon launch a new feature providing coverage of labor news from the “gig” – or “sharing” – economy.  Similar to our Fast Food News feature, Gig News will consolidate stories with important labor implications from these emerging sectors of the labor market.

In anticipation of our first installment, it is worth posting here Judge Chen’s recent order denying Uber Technologies’ motion for summary judgement in Uber Technologies, Inc. v. O’Connor.  The question in this litigation is the fundamental one: are Uber drivers employees or independent contractors?  Proceeding under California law, and applying the Borello standard, Judge Chen holds that the “most significant consideration” in a case like this one is the putative employer’s “right to control the work details.”  After an extensive review of the record – one that provides an illuminating picture of Uber and the relationship between Uber and its drivers – Judge Chen determines that “the Court cannot conclude as a matter of law that Plaintiffs are Uber’s independent contractors rather than their employees” and so he denies Uber’s summary judgment motion.  Along the way, Judge Chen rejects many of Uber’s primary claims, including that Uber is a “technology company” rather than a “transportation company.”

Perhaps the highlight of the order comes when the court addresses Uber’s assertion that it does not monitor drivers sufficiently to warrant a finding of employment.  Judge Chen writes:

Uber drivers . . . are monitored by Uber customers (for Uber’s benefit, as Uber uses the customer rankings to make decisions regarding which drivers to fire) during each and every ride they give, and Uber’s application data can similarly be used to constantly monitor certain aspects of a driver’s behavior. This level of monitoring, where drivers are potentially observable at all times, arguably gives Uber a tremendous amount of control over the ‘manner and means’ of its drivers’ performance.

The citation for this part of the court’s holding?  A cf. to Michel Foucalt’s, Discipline and Punish.

This will be an interesting case to watch, one with critical implications for gig and sharing economy jobs.  We’ll have updates as the litigation progresses.

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