The point of Uber's alleged model is that Uber is not employing the driver, but rather that it is simply matching up drivers to passengers as a marketplace.
If that's the case, then Uber has no right to avoid working with contractors simply because they continually refuse work. That indicates a non-independent agency arrangement between Uber and the driver (aka "employee") and that's what they're claiming they don't have.
I disagree. Solely from the perspective of the person running the platform, it makes lots of sense to factor in "likelihood of accepting" into your driver selection algorithm.
If I know driver X rejects all rides from a certain area, I'm going to stop showing them rides in that area. That way the user gets their driver faster.
Right, but now they're no longer a marketplace, now the're the one assigning the driver...which makes the driver their agent.
And if the driver is their agent, it matters whether the driver is classified as an employee or independent contractor.
If Uber wants to be a transportation marketplace, they can be, but they actually have to act like one. (And in fact, in CA they've been run a small trial in the Bay Area to make that shift. The trial will supposedly be expanded to all of CA this year.)
How is that relevant? If you are an agency, you are advertising availability both ways. If you filter on behavior, you are no longer acting as an independent agency but as an agent for one side.
Disclosing pattern behavior (has rejected 12 rides this hour) is the correct way to provide value-add, not silently making decisions for parties.
If you went to a recruitment agency, would you expect them to send you to interview at every single company regardless of if they think that the company would be interested in hiring you?
Clearly agencies do discriminate who they match with each other. I would say that is the entire point of agencies infact.
> you expect them to send you to interview at every single company regardless of if they think that the company would be interested in hiring you?
I expect to be matched with every available role and an attempt to be made to represent me to them (and they to me). The disclaimer that they are looking for X Y or not Z is part of that. There is a practical issue muddying the metaphor which does not apply to the rideshare matching technology.
> Clearly agencies do discriminate who they match with each other.
That needs to be explicitly outlined in your contract with an agency. An employment agency is legally prohibited from doing that. This is the heart of the legal matter, imo.
Crucial difference: recruitment agency matches based on criteria that customer and contractor provide, because they work for both as an agent.
Agencies don't match based on their own internal criteria. That would recharacterize the relationship between the agency and the contractor, flipping it around so that the contractor becomes their agent.
User experience is incredibly relevant. The entire purpose of the platform is to match drivers and riders. If it can do that more effectively, it has become better as an independent platform.
> The entire purpose of the platform is to match drivers and riders.
That's fine, but we're talking about legal relationships here, not the facilitating product. If you are going to assert you are legally acting in an impartial role, turning around and claiming partiality for one party (the riders) invalidates that position.
I think the one exception there is that you need to distinguish between people who don't take contracts and people who break contracts -- refusing to take a job is one thing, but if a driver frequently accepts a job then cancels it halfway through (eg, they are driving to the pickup and suddenly get offered a better job, on the competing platform), that is a horse of a different color.
> If that's the case, then Uber has no right to avoid working with contractors simply because they continually refuse work.
Why? Uber has a right to do whatever they want for whatever reason or without any reason. Just like the other party in the contract, the driver, can stop accepting any rides and drive for lyft if he so wants. No reason required.
If that's the case, then Uber has no right to avoid working with contractors simply because they continually refuse work. That indicates a non-independent agency arrangement between Uber and the driver (aka "employee") and that's what they're claiming they don't have.