UberEats: More Evidence of Employee Status?

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].

Yesterday’s Wall Street Journal has an in-depth look at Uber’s forays into the delivery business, including a description of the company’s food delivery service, UberEats.  The Journal article focuses on the hurdles Uber faces in the delivery sector, but, for labor and employment lawyers, there’s a particularly interesting tidbit that comes in the middle of the piece.  According to the Journal:

One of Uber’s main goals with UberEats is to give drivers a way to earn income and stay on the road from 10 a.m. to 2 p.m., a slow period when drivers are prone to drop off the service, according to a person who has discussed the program . . . .

Customers pay a delivery fee of $3, and participating drivers get $12 an hour plus $2 per order and temporary bonuses of as much as $20 a day to start making UberEats deliveries, drivers in Chicago say. Those rates may vary in other cities. Uber won’t comment.

In general, Uber drivers are paid per ride.  But it appears that drivers who also do UberEats deliveries are being paid by the hour.  Under certain tests of employment, this form of payment can be relevant – though not dispositive – in determining whether the drivers are employees or independent contractors.  Under California’s test of employment status – the test that the federal courts are applying in both the O’Connor v. Uber and Cotter v. Lyft litigation – one of the “secondary indicia” of employment is “the method of payment, whether by time or by the job.”  Applying this test, California courts have held that hourly payment, as opposed to payment per piece or per job, is indicative of employment.

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