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.