Malos Et Al Re Uber Drivers 11-6-18
Malos Et Al Re Uber Drivers 11-6-18
Malos Et Al Re Uber Drivers 11-6-18
ISSN 0892-7545
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https://doi.org/10.1007/s10672-018-9325-9
Stan Malos 1 1
& Gretchen Vogelgesang Lester & Meghna Virick
1
Abstract
As the gig economy continues to grow, the legal status of its workers remains a
source of confusion and controversy. Uber and other transportation network companies
(TNCs) typically disclaim employee status, depriving drivers of social insurance
among other benefits. Further, such companies typically deny liability to third party
victims for damages due to auto accidents, sexual assaults, and other negative
outcomes arising out of their business. Legal and regulatory systems in the U.S.
and elsewhere continue to struggle with how to determine and apply a consistent
standard as to employee classification. We argue that corporate social responsibility
should figure prominently in the equation. Private companies already are required to
cover social costs of doing business in a variety of contexts (e.g., workers compen-
sation, family leave, public and workplace accommodations for disabled individuals),
and it makes sense that they also should be required to underwrite other important
implications associated with employee status as part of their responsibilities to society.
This is especially so where, as with Uber and other TNCs, a company’s core profit-
making operations include activities that carry the direct potential for causing sub-
stantial harm both to individual clients and to the public at large.
Keywords Uber . Ride hailing . Worker classification . ABC test . Corporate social responsibility
Published reports of offenses including physical assault, kidnapping, sexual assault, and rape
by Uber drivers in Australia, Canada, India, the Philippines, Singapore, the U.K., the U.S. and
elsewhere continue to appear in the media with disturbing regularity (see, e.g., incidents
reported at www.whosdrivingyou.org). Some of these offenses were perpetrated by known
* Stan Malos
[email protected]
1
School of Management, College of Business, San Jose State University, One Washington Square, San
Jose, CA 95192-0070, USA
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Recent growth of the Bgig^ economy and the prevalence of Bside hustles,^ where employees
are paid on short-term contracts or freelance work, has admittedly generated increased
flexibility for workers. However, although hailed as offering solutions addressing the needs
of an entrepreneurial generation that craves flexibility (Friedman 2014), some Bgigs,^ partic-
ularly those inherent to transportation network companies (TNCs), are really just on-demand
piecework (drivers are paid per completed trip; see Rauch and Schleicher 2015). These ill-
defined employment arrangements reduce security for many workers due to the lack of legal
protections and traditional benefits included in the employment contract (Friedman 2014).
More specifically, workers misclassified as contractors rather than employees are improperly
denied expense reimbursement, health and retirement benefits, unemployment compensation,
workers compensation for work-related injuries, and the protections afforded by wage laws,
1
A recent British court decision has resulted in Uber being granted only probationary licensing status due to the
company’s failure to run adequate background checks or report crimes involving its drivers as required by law
(https://www.reuters.com, downloaded 6/25/18).
2
Uber, originally called BUberCab,^ now asserts that it is only a provider of Bmobile applications and related
services^ and is not a provider of Btransportation, logistics, or delivery services^ (https://www.uber.com/,
downloaded 7/1/18).
3
The gig economy also is known as the on-demand economy and the sharing economy; see generally, Andoyan
2017; Kennedy 2016-2017; Keeton 2016; Scott and Brown 2016-2017).
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occupational health and safety requirements, anti-discrimination statutes, and labor relations
laws (see generally, Bennett-Alexander and Hartman 2018; Friedman 2014).
Variability of income due to the nature of gigs and side hustles is one area of concern
(Friedman 2014); the erosion of non-salary benefits and employer-sponsored obligations that
correspond with employee status is another. The United States, in contrast to many industri-
alized nations, relies upon Boccupational welfare^ to ensure income security (O'Rand 1986;
Titmuss 1969). Traditionally, most full-time working adults in the US enjoyed benefits funded
by their employers, thus reducing the demand for such benefits to be provided by government
sources (O’Rand, 1986). However, as workers adopt gig-based contract work, which entails
few if any benefits, we will likely see greater reliance on public programs to help support such
workers. Without access to employer-sponsored group health insurance (and given the
uncertain status of the Affordable Care Act; Luthi 2018), drivers may see their premiums rise
precipitously. Without workers’ compensation coverage, already cash-strapped social pro-
grams such as the Social Security Disability Insurance (SSDI) program may become insolvent,
leaving contract-based drivers in precarious financial positions should they be injured either on
or off the job (Fichtner and Seligman 2016).
Moreover, as most TNC contract drivers do not carry commercial insurance and may even
invalidate coverage under their personal liability policies by working as a driver-for-hire, Uber
and other TNCs may be imposing greater risks on drivers, passengers, and the public at large
(Feeney 2015). Although individuals gain some measure of autonomy when working as
contractors or on variable shifts, they lose the stability of employee benefits that have been
the bedrock of the employer-employee relationship for decades (Jerrell 1997). And, although
TNCs such as Uber tout the efficiencies gained from on-demand sourcing, evidence suggests
TNCs are pulling customers from public transportation, thereby putting more cars on the road
and causing more congestion and air pollution (Clewlow and Mishra 2017; Gehrke et al. 2018;
Schaller 2017). From the customer’s perspective, it may be advantageous to have an on-
demand mode of transportation that is not based on set times like buses, trains or subways and
that does not require sharing space with anyone but the driver. However, while classifying
workers as contractors rather than employees may save TNCs money in the near-term, these
savings and lax regulatory oversight would seem to be increasing costs to society at large
(Friedman 2014).
The previous rise of traditional employee benefits programs over the past century is starting
to ebb (Jerrell 1997). At the dawn of the industrial revolution, compensation to the worker
beyond a base salary evolved due to a number of different forces. For example, social
movements generated care for the elderly, injured, and widowed, and fair labor standards
and unemployment insurance were initiated through political changes after the Great Depres-
sion. More recently, innovative companies engaged in a war for talent have been a driving
force behind paid maternity and paternity leave (Gault et al. 2014; Jerrell 1997; Ko and Hur
2014). However, contract-drivers are not subject to minimum wage standards that would
otherwise apply, and a research finding from MIT (later withdrawn due to questions regarding
its methodology) had suggested that Uber drivers might average as little as $8.55 per hour
while driving in contrast to figures of more than twice that touted by Uber (see generally Hall
and Krueger 2018; Meyer 2018; and Zoepf et al. 2018).
Furthermore, there are issues that may arise from the displacement of historically minority
taxi drivers from their unskilled jobs, as well as outcomes of underemployment, where workers
otherwise qualified for higher-level jobs are relegated to lower level positions as on-demand
drivers or delivery personnel. Indeed, anecdotal evidence recently communicated verbally to
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one of the authors confirms that at least one Uber driver, an out-of-work software engineer in
Silicon Valley, had given up trying to regain employment in his chosen profession in favor of
less desirable but more available part time work in the ride hailing business. We return to these
issues later on after discussing the legal issues surrounding employee misclassification.
payable rather than out of payroll. Despite their classification by Microsoft as independent
contractors, the Court found these distinctions meaningless and held that the workers’ status as
Bcommon law^ employees did in fact entitle them to the same benefits as those bestowed by
Microsoft on its regular employees. The case stands with many others which conclude that the
label given to workers by a hiring entity, although worthy of consideration as one factor among
many, is not alone determinative of workers’ legal rights.
More recently, that same court addressed the issue of whether taxi drivers were employees,
versus independent contractors, and thus entitled to unionize under the National Labor
Relations Act. In N.L.R.B v. Friendly Cab (2008), the 9th Circuit upheld a decision by the
National Labor Relations Board that the company exerted substantial control over the manner
and means of how the drivers were to perform their jobs, and that the drivers were thus
employees. As in the previous two cases, notwithstanding that the workers had signed
documentation to the contrary, the court found the label assigned by the company not to be
conclusive. Factors arguably suggesting contractor status were outweighed by evidence that
Friendly enforced a dress code and strict rules regarding how their drivers actually were to
drive their taxicabs. The company also restricted their ability to take on entrepreneurial
activities for their own benefit while driving for Friendly.
In another case involving misclassification of drivers as independent contractors, the 9th
Circuit in Alexander v. Fedex (2014) again considered the strict dress code and other rules of
conduct enforced by Fedex to indicate control by the company over the manner and means of
how its work was done. It thus found Fedex package delivery drivers to be employees of the
company despite signed agreements to the contrary. Like Friendly Cab, this case also arose in
California, but Fedex has faced similar litigation results in a variety of other jurisdictions in
analogous legal contexts (see, e.g., Fedex vs. NLRB, D.C. Cir., 2009).
Lest it be concluded that the 9th Circuit always finds in favor of employee status, it is
illustrative to compare and contrast Murray v. Principal Financial Group (2010), a case in
which employee status would have been critical to Murray’s right to bring a Title VII
discrimination claim. In that case, the Court found that an insurance agent was properly
classified as an independent contractor due to the specific product knowledge and particular
skill applied by Murray in her sales work, and the fact that Murray was free to operate her
business as she saw fit without day-to-day intrusions. She also decided when and where to
work, and maintained her own office, where she paid rent. She scheduled her own time off,
and was not entitled to vacation or sick days. Finally, Murray was paid on commission only,
reported herself as self-employed to the IRS, and sold products other than those offered by
Principal. The Court, citing Nationwide v. Darden (above), also took the opportunity to clarify
apparent confusion in the trial court over whether to apply the common law agency test, the
Beconomic realities^ test applied by some courts, or a hybrid version of the two. It found Bno
functional difference^ in application among them, and reiterated that the proper inquiry is to
evaluate Bthe hiring party’s right to control the manner and means by which the [work] product
is accomplished.^
Similarly, in Varisco v. Gateway Science and Engineering (2008), a California state Court
of Appeals, based largely on the specialized skills, knowledge, and expertise of Varisco as a
state-certified architectural inspector, upheld the trial court’s finding that Varisco was an
independent contractor and not an employee. Because Varisco was hired for his
particular expertise and was expected to do his work under his own control, the
existence of isolated Bat-will^ language in his contract documents did not alone
operate to make him an employee.
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Returning to the context of workers who drive for a living, it is worth examining a recent
federal trial court case out of Northern California. In Lawson v. Grubhub (2018), the court
ruled that Lawson, a driver for a meal delivery service, was properly classified as an
independent contractor due to Grubhub’s lack of control over how Lawson performed his
job. Although noting that Lawson’s work was indeed part of Grubhub’s core business
(thus pointing toward employee status), the Court heavily weighed the lack of
training, lack of a regular work schedule, lack of a standard dress code, and lack
of any particularized vehicle requirement to tip the scales in favor of lack of control
over Lawson, and thus, contractor status.
However, as a trial court case, Lawson has little if any precedential value, and its result will
likely be challenged based on a recent watershed appellate case, Dynamex v. Superior Court,
et al. (2018). In Dynamex, the California Supreme Court adopted a three-part BABC^ test to
simplify employee-versus-contractor determinations under California’s wage orders, which
deal with exemption from or entitlement to premium overtime pay among other issues.4 The
case now requires any hiring entity asserting independent contractor status to establish each of
the following three factors: that the worker 1) is free from its control; 2) performs work outside
the usual course of its business; and 3) customarily engages in independent work. This analysis
appears to be consistent with and incorporate elements of both the common law agency test
and the economic realities test described earlier, and may ultimately become critical in the
ongoing debate over Uber drivers, at least in California.
In Dynamex, a group of drivers for a delivery service who worked only for that company
was awarded class certification to pursue claims that they had been misclassified as indepen-
dent contractors. The Court’s opinion provides an extensive historical review of California
cases dealing with the employee-contractor distinction, most notably Borello & Sons v.
Department of Industrial Relations (1989), and recognizes Bthe difficulty that courts in all
jurisdictions have experienced in devising an acceptable general test or standard^ for doing so.
Of particular relevance to our arguments concerning corporate social responsibility, discussed
in greater detail below, is the Court’s broad introductory language:
BWorker classification, under both California and federal law, has clear consequences for
workers, businesses, and the public generally. Businesses bear the responsibility of paying
federal Social Security and payroll taxes, unemployment insurance and state employment
taxes, providing worker’s compensation insurance, and complying with state and federal
statutes and regulations governing wages, hours, and working conditions of those who are
classified as employees. These protections are not available to independent contractors, and
although in some circumstances classification as an independent contractor may be advanta-
geous to workers as well as to businesses, the risk that workers who should be treated as
employees may be improperly misclassified as independent contractors is significant in light of
the potentially substantial economic incentives that a business may have in mischaracterizing
some workers as independent contractors. Such incentives include the unfair competitive
advantage the business may obtain over competitors that properly classify similar workers
as employees and that thereby assume the fiscal and other responsibilities and burdens that an
employer owes to its employees. In recent years, the relevant regulatory agencies of both the
federal and state governments have declared that the misclassification of workers as indepen-
dent contractors rather than employees is a very serious problem, depriving federal and state
4
The ABC test had previously been utilized elsewhere, but largely in determining entitlement to unemployment
insurance compensation. See the full text of the Dynamex decision for further detail.
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governments of billions of dollars in tax revenue and millions of workers of the labor law
protections to which they are entitled [emphasis added].^
In light of these comments, it is interesting to note that Uber, in its online recruitment
message for potential drivers (https://www.uber.com/careers), touts the various benefits of
contractor status that would be Badvantageous to workers^ but makes no mention of the many
downsides recognized above by the California Supreme Court. When considering the
numerous pending class action lawsuits against Uber and other TNCs in a variety of
jurisdictions, it might behoove such companies to consider these factors more
seriously when deciding whether to stick with the assertion that their drivers are
properly classified as contractors.
Since October of 2012, there have been more than a hundred lawsuits filed against Uber in the
U.S. alone (Bales and Woo 2016-2017).5 Among the more noteworthy decisions are O’Connor
v. Uber Technologies (N. D. Cal. 2015) and Razak v. Uber Technologies (E. D. Pa. 2018),
which reached opposite results.6 In O’Connor, a federal trial court in Northern California held
that Uber drivers were presumptively employees, but that there were genuine issues of fact as
to the level of control asserted by Uber such that summary judgment on the matter was not
appropriate. Significantly, the Court’s opinion concluded that current laws were not well
equipped to deal with the Bsharing economy,^ and that new legislation might be required to
clarify California law on the matter.7 On the other hand, a federal trial court in Philadelphia,
Pennsylvania decided that drivers for UberBLACK, which provides limousine service, were
properly classified as contractors because they set their own schedules, work when they want
to, and are free to run errands without reporting to Uber. The distinction appears to rest heavily
on the fact that these drivers essentially run their own businesses, which is virtually identical to
the third part of the ABC test adopted by the California Supreme Court in Dynamex. Whether
the same analysis will be extended to regular Uber drivers, many of whom drive for Uber as
only one of several types of work they perform, remains to be seen.
The story of the out of work software engineer driving for Uber mentioned earlier is not
unusual. Lower entry barriers combined with the attraction of working with a technologically
innovative platform has led to highly educated employees moving into jobs that had tradition-
ally been done by individuals without college degrees. When individuals suffer a job loss or
other career setback, they can easily shift to the gig economy—an ecosystem that allows
5
As reviewed in detail elsewhere, there also have been rulings by various state labor relations agencies (see, e.g.,
Keeton 2016). These decisions have limited applicability beyond their specific jurisdictions and are not
considered in our analysis.
6
An analogous case against Uber’s main competitor, Lyft, was settled by the parties and provides little useful
guidance in the present inquiry. See Cotter v. Lyft (N. D. Cal. 2017).
7
A proposed settlement of this litigation was rejected by the court, but the case was stayed pending appeal to the
9th Circuit on the issue of whether class action waivers in arbitration clauses signed by the drivers are
enforceable.
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workers by a small number of online companies—and finds that it drives Ban intensification of
exploitation with the lion’s share of the wealth of networks being re-routed into the pockets of
a handful of platform owners^ (p. 114).
Carroll’s (1991, 2015) pyramid model of corporate social responsibility (CSR) serves as a
starting point to understand and evaluate organizations like Uber. The framework encompasses
four aspects of CSR: economic, legal, ethical and discretionary expectations. Businesses first
and foremost have an economic responsibility to be profitable, and they do this by adding
value and sustaining their operations. In doing so, businesses are required to comply with laws
and regulations as a condition of operating. Compliance, however, is necessary but not
sufficient, and society expects businesses to conduct themselves in an ethical manner. Carroll
thus maintains that companies should perform in a manner consistent with expectations of
societal mores, recognize evolving ethical/moral norms adopted by society, prevent those
norms from being compromised in order to achieve business goals, and recognize that ethical
behavior goes beyond mere compliance with laws and regulations (Carroll 1991, 2016).
Carroll also points out that business goals and responsibilities most dramatically affect
employees as well as other stakeholders because of the critical nature of basic financial
viability once a firm occupies its place in the economy. This reasoning supports our argument
that companies like Uber have a responsibility to their workers to help them maintain a living
wage and decent levels of social welfare (see also Spence 2016, regarding a business firm’s
responsibilities to its employees).
In addition to these considerations, it is becoming increasingly common, indeed necessary,
for businesses to assume social and political responsibilities that go far beyond legal require-
ments and to fill the Bregulatory vacuum^ now present in a growing number of areas of global
governance (Scherer and Palazzo 2011). Where medical and retirement benefits may be
increasingly difficult to obtain, as is the case in the U.S. today, emerging notions of CSR
may require responsible businesses to step in and do so. Indeed, this very notion was recognized
implicitly by the California Supreme Court in its Dynamex decision, quoted in part earlier in
this paper. Requiring companies like Uber to offer at least the option to obtain employer-
provided group benefits to those who spend substantial portions of their work lives helping to
drive the profits of the company would recognize the realities of these ongoing developments.
To be sure, companies like Uber have gained attention from scholars and practitioners who
are fascinated by the efficiency and optimization of digital markets as well as their arguable
benefits to consumers. However, the needs and well-being of the people who perform the
work, as well as other stakeholders and third parties, deserve serious consideration as well.
Given the legal, societal, and ethical advantages of employee status discussed above, would
requiring that status through legislative or regulatory mandate pose difficulties with innovation
or other aspects of competition for companies like Uber and Lyft? To the contrary, we believe
there are potential strategic advantages to be gained through branding as socially responsible
companies who provide collective employee benefits and improved worker rights.
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Management scholars have developed frameworks for mapping a firm’s human resources
practices onto its overall competitive strategy. Among the most well-known and widely used
are those developed by Porter and by Miles and Snow (see Gomez-Mejia et al. 2016, pp. 28–
30). Porter’s typology of generic competitive strategies includes the distinction between cost
leadership and product or service differentiation (uniqueness) to achieve a competitive advan-
tage, whereas Miles and Snow analogously distinguish between the respective strategies of
defender (cost control, efficiency and stability) versus prospector (innovation and new product
development). As Gomez-Mejia et al. point out, low cost or defender firms tend to utilize HR
strategies that emphasize control and discourage creativity and innovation, while differentia-
tion or prospector firms utilize HR strategies that foster creativity and adaptability. In light of
the innovative, hi-tech nature of Uber’s ride sharing application, misclassifying on-demand
drivers as contractors thus appears to be part of a misplaced low-cost or defender strategy
given its corresponding attempt to save on expenditures related to health insurance, retirement
benefits and the like. On the other hand, requiring companies like Uber and Lyft to properly
classify their drivers as employees would incentivize them to raise the level of their hiring,
compensation and benefit practices to support a more appropriate competitive strategy of
differentiation (quality) or prospector (innovation).
Further, because Uber or Lyft would be responsible to third parties for the conduct of its
drivers were they employees (Bennett-Alexander and Hartman 2018, p. 9), potential customers
would likely be getting enhanced safety and reliability when they arrange transportation
services through these companies. Mandating employee status also would motivate Uber
and Lyft to maintain higher levels of commercial insurance coverage for the casualty losses
that are inevitable in ride hailing and other driving operations, thus providing recourse for third
party victims that is otherwise inadequate or lacking altogether from individual drivers
working as independent contractors.
In addition to the ABC test recently adopted by the California Supreme Court in Dynamex,
which would still require a case by case determination of its three relevant factors (worker
freedom from control, performing work outside the core business, and customarily engaging in
independent work), legal commentators have proposed a variety of other approaches for
determining worker status in the gig economy. These include a special Bfor-hire driver^
classification such as that used in Seattle’s rideshare ordinance (Keeton 2016); a Bhybrid^
approach that would provide workers with a basic level of protection while still maintaining
flexibility (Andoyan 2017; Redfearn 2016); a Bplatform contractor^ classification that would
examine issues including the level of worker dependency on a particular platform owner such
as Uber; and Btaxonomy^ (Scott and Brown 2016-2017) or Bcontinuum^ (Rathod and Skapski
2013) approaches whose application would depend, inter alia, on whether the business in
question focuses on reducing consumption (e.g., Booksfree), facilitating on-demand services
(e.g., Uber), or allocating shared housing and space (e.g., Airbnb).8 Finally, there are the
8
There is, of course, a question whether the first type of enterprise really exists to reduce consumption via
sharing things like books (Booksfree), toys (ToysTrunk), or clothes (Le Tote) or is more concerned with
Bsharewashing^—emphasizing claims of having a social mission or social responsibility in order to soften what
otherwise might appear to be a purely cutthroat profit motive.
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Conclusion
For all the reasons discussed above, workers in the gig economy should be entitled to be
classified as employees, not independent contractors. Legal mandates requiring the availability
of employee status for those workers who want it should be adopted and enforced. This
approach offers the best and most understandable way to recognize and balance important
worker rights, stakeholder interests, and corporate social responsibility. It would bring much-
needed clarity to what has thus far been a murky and inconsistent area of both business practice
and the law.
Ethical Approval This article does not involve any studies with human participants or animals performed by
any of the authors.
Conflict of Interest All authors declare that they have no conflicts of interest.
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