Uber's defense fails The Duck Test. They are describing a job, people doing a job, people paying for a job, and people taking a cut of the profits. They just don't use those words.
I suspect if/when this gets to a higher court, the whole thing will come crashing down, because to allow Uber's weaselly redefinition of common terms, would be to allow other classes of employment to similarly become unprotected.
I totally agree. I'm neutral on Uber, but their advertising is that you book an Uber ride. You don't use Uber to find a driver you like and then hire that driver from now on. Basically, the drivers are treated as the fungible part of providing service to the passengers. Contrast with Airbnb where owners can treat it like an advertising network to market their rental room, and it's totally reasonable to expect that a good experience will lead to more business for that homeowner specifically, not just the app in general.
>You don't use Uber to find a driver you like and then hire that driver from now on. Basically, the drivers are treated as the fungible part of providing server to the passengers.
Which is also one of the reasons that Uber became successful. A lot of the "Uber for..." companies that provided more personal services like massages or house cleaning failed for this exact reason. As soon as a user found a provider they liked it was easy for the two parties to come to a deal for ongoing service and cut out the tech company. That is how a lead generating company works. Uber doesn't function that way because the provider and the consumer don't have an ongoing relationship because the drivers have all been commoditized.
As a matter of fact I know of one person who met a driver through Uber and decided to hire them daily to get to their job without going through Uber ever again. I think that this is extremely rare and that everything in Uber is set up to prevent something like this. Same thing goes for Airbnb and the obfuscation of emails.
It is rare. The reason Uber and Lyft don’t have the same “work outside the network” problem that Wag / Airbnb does is because when you want a ride you want it now. If you had to wait for your “personal” driver to free up, you’d be waiting... or have to deal with scheduling in advance.
You schedule dog walks and lodging in advance, so it is quite tempting to cut the middle man out once you find what you like. Not so with transportation.
It used to be more common. Back when it was all town cars, and up through the early days of UberX, I frequently got business cards and phone numbers from my drivers.
I think it's actually a violation of the uber TOS for the driver to circumvent the app, and of the passenger not following the community guidelines of Uber, if I understand correctly. Similar to how Wag's new TOS tries to prevent contractors from seeking pet walking outside of the service.
I do feel that driver's being able to work for multiple ride sharing companies at the same time does make it a bit different from a normal job. A majority of drivers have both Lyft and uber enabled at the same time.... so are they employees of both? How should benefits be calculated?
If I am an employee of a company, they are probably not going to let me work for a competitor while I am on the clock with them.
> A majority of drivers have both Lyft and uber enabled at the same time.... so are they employees of both?
Having the app enabled is being on-call for potential assignments, not actually working. In my youngest years, I did that for multiple temp agencies at the same time a lot. Are they employees of both? Sure. Multiple W-2 employers is not that uncommon for people doing temp work.
> How should benefits be calculated?
In most cases, they will probably work little enough for each as to not reach mandatory benefit eligibility under most employer mandates.
> If I am an employee of a company, they are probably not going to let me work for a competitor while I am on the clock with them.
If you are an employee of a company giving on-demand assignments, they probably aren't going to consider you on the clock merely because you have indicated you are available to take an assignment if it becomes available.
If there are minimum paid shift rules in play, they may consider you on the clock and demand exclusivity for the paid period once you accept a job, even if there is a lull between assignments, though.
"Multiple W-2 employers is not that uncommon for people doing temp work."
But not simultaneously. Once I went to a neghborhod where I knew I would not get any Lyft rides (stodgy white folk in suburban San Diego) and took Uber rides specifically to nail bonuses on both platforms.
The new law enshrines the existing case-law test into statute, so if they are properly categorized as contractors under existing state law, then they are also properly categorized as contractors under the new law.
That said, if they were on on-demand W-2 temporary workers instead of contractors, then they’d probably be treated exactly like all such workers (who often are signed up with multiple agencies to receive assignments) are by their employers and not be paid when they were merely willing to receive assignments but only after they had been offered and accepted and were actually working on a particular assignment.
This is somewhat true for higher level jobs, but once you hit retail, and blue collar jobs generally, it stops being true.
McDonalds doesn't care if I also work at Burger King. Target doesn't care if I also work at WalMart. A plumber is generally fine if their assistant also works for another one.
All of this is subject to still doing the first job satisfactorially, of course.
You aren’t “clocked in” in to Target, McDonald’s and Walmart at the same time though. I imagine many of these drivers are marked “available” on lyft, Uber and probably some delivery stuff all at once.
I’ve always wondered what would happen if legislation required them all to open Go their API’s so drivers could use some “app to rule them all” that talks to lyft, Uber and more and helps them choose the best assignments....
At the moment, rideshare drivers don't get paid for being available, so the analogy to being "clocked in" at a regular job falls down.
This is how the rideshare companies claim an absurdly high hourly rate for driving — you only get that rate while actually giving rides and it is generally infeasible to be giving rides all the time. The effective hourly rate is much lower.
The question isn’t whether they’re doing a job, it’s whether drivers are acting as contractors vs employees while performing the job.
Ironically, taxi drivers are also contractors. I’m surprised nobody has brought up the fact that the status quo pre-Uber was a contractor model as well.
The real problem is that the Dynamex decision is legislation from the bench that redefines “contractor.” The historical definition of a contractor was basically only c in the abc test. It will be interesting to see how the court decisions come down. As the press release points out, the precedent so far is mixed.
Just dropping in to say that “legislation from the bench” is a charged, shallow criticism that says nothing except about the critic’s own political philosophy. The fact is, courts have been legislating from the bench for as long as we have had courts, and before then — the U.S. inherited its judicial traditions from England, after all. California is a common law jurisdiction. The essence of common law is that courts create law in the course of issuing their holdings.
Without going down the rabbit hole of Constitutional Law, I’ll just point out that there are folks on the Federal Supreme Court that disagree, in principle, that courts should be making laws.
That aside, if you think it’s a shallow criticism in this case, why do you think it required legislative action to have any effect? In other words, if this wasn’t legislation from the bench, ab5 is a noop.
I’m well aware that there are Supreme Court justices who claim to believe that courts should not make law. And yet... they continue to make law every time they contribute to a majority opinion.
As to AB5, I’m not really educated on the particulars of Dynamex or the political process around AB5 to opine on why it’s been codified. There are many possible reasons, ranging from a desire to try to freeze the law in place, to, as you say a “noop.” This, too, is just a part of the system.
Isn't being a driver on Uber platform same as being a seller on Amazon marketplace? Amazon takes care of delivery, cancellation etc and charges a commission for those services.
I suspect if/when this gets to a higher court, the whole thing will come crashing down, because to allow Uber's weaselly redefinition of common terms, would be to allow other classes of employment to similarly become unprotected.