Legal Considerations in Relationships Between Transit Agencies and Ridesourcing Service Providers (2018) / Chapter Skim
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Pages 73-98
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73 records law.563 No such provisions were identified that would preclude a contractual agreement to provide such records, however, or that would cover the public records act status of an agreement with, or records provided to, a transit agency.
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74 A Employment Classification Use of the independent contractor designation is a central component of the business model in the so-called gig economy, iconically so among TNCs.
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75 while they are on duty.576 The answer to this question is likely to vary by jurisdiction. Moreover, even as the legal principles become more defined, individual case results may vary, as the employment classification determination is very fact-dependent.
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76 that the questions at issue were whether there was a valid agreement to arbitrate and then whether defendants had waived their right to enforce the agreement. The court discussed different possible online agreement formats and how those formats affect the central question of whether the existence of the terms was reasonably communicated to the user.
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77 In its opening brief, Uber raised numerous issues related to its arbitration agreement and the district court's orders affecting enforcement thereof. Most material to misclassification issues, Uber urged the court to uphold the enforceability of the Uber arbitration agreement, relying on the Mohamed decision.
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78 The court reviewed the general presumption under California law of employee status for a person performing services, with the burden on an alleged employer to prove an individual is in fact an independent contractor, as well as the protections and benefits under California law of employee status, including receiving unemployment benefits and minimum wage. The court noted that the legislative intent in providing these benefits is to protect employees in the face of employers' bargaining advantage.
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79 The second proposed settlement agreement raised the settlement amount to $27 million, with no increase in the plaintiffs' attorneys' fees. The court found this settlement to be fair, reasonable, and adequate, and granted the motion for preliminary approval.605 In granting the motion for final approval of the settlement agreement, the court declined to approve proposed language enjoining members of the settlement class from filing future actions related to the released claims.
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80 terminated by Postmates for similar fraudulent behavior.614 In addition, the court's analysis of Grubhub's right to control demonstrated that that right is arguably less extensive than that of TNCs vis-à-vis their drivers. For example, Grubhub did not require the plaintiff to undergo any specific training or orientation, to sign up to provide service within a specific timeframe in order to remain active on the service, nor to follow prescribed routes to reach a restaurant or make a delivery.615 The court rejected Grubhub's argument that mutual at-will employment weighs against an employer–employee relationship under California law, but found that under the plaintiff's specific circumstances, Grubhub's right to terminate at will was a neutral factor in the right-tocontrol analysis.616 Of additional interest is the fact that the court held that despite the fact that food delivery was not the primary part of Grubhub's regular business, the fact that it was part of Grubhub's regular business was a factor in favor of a finding of an employment relationship.
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81 Uber is no more a "technology company" than Yellow Cab is a "technology company" because it uses CB radios to dispatch taxi cabs, John Deere is a "technology company" because it uses computers and robots to manufacture lawn mowers, or Domino Sugar is a "technology company" because it uses modern irrigation techniques to grow its sugar cane.
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82 the employer. In examining the requirements to facially plead the fourth factor, the court -- noting that the parties' actual relationship, despite contractual language, may be the conclusive factor -- discussed a District of Columbia Court of Appeals case involving a larcenous home deliveryman.630 The Search court cited the facts about the deliverymen in Schecter that led that court to conclude that a reasonable jury could find that the deliverymen were employees, noting the similarities to Uber drivers.
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83 insurance, but also for unemployment compensation, minimum wage, overtime, and benefits.636 California Labor Commissioner. -- In 2015, the Commissioner addressed a complaint alleging that a former Uber driver was owed wages, reimbursement of expenses, liquidated damages for Uber's failure to pay the required minimum wage, and penalties for failure to pay wages when they were due.637 In the legal analysis, the Commissioner noted the inference of employment under California law "if personal services are performed as opposed to business services," citing ten factors established under Borello for consideration in making the determination of whether an employment relationship exists.638 The Commissioner also noted that the parties' belief whether there is an employment relationship, while relevant, is not determinative. The Commissioner discussed Yellow Cab Coop., in which cab drivers were found to be employees "based on circumstances very similar to those of the instant matter."639 The factors highlighted by the Commissioner were lack of importance of the fact that the driver owns the vehicle used to perform the work, the fact that the plaintiff 's work was integral to the defendants' business (which would not exist without the drivers)
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84 claimants to be employees of the employer, Uber Technologies Inc. and the employer liable for contributions for claimant and others similarly situated as of January 1, 2014." The ALJ also overruled Uber's objection that the claimants and all others similarly situated are independent contractors.643 In the findings of fact, the ALJ reviewed elements of the relationship between the drivers and Uber: Uber's onboarding process; fringe or other benefits; required equipment and associated costs; claimants' provision of ride services under the Uber app; claimants' rating/performance review; payment of fares, other earnings, and reporting of income taxes; Uber's consideration of claimants' requests for clean-up and repair costs, and other reimbursement; Uber's process for addressing rider complaints against drivers; drivers' ability to work for competing TNCs; and drivers' ability to use sub-drivers.
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85 Uber Technologies v. Y.E.651 -- This was the first case decided by an arbitrator, who decided in Uber's favor -- that an Uber driver was an independent contractor.
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86 not a digital service.657 The question arose in connection with an action by Spanish taxi drivers accusing Uber of misleading practices and unfair competition. In order to resolve the questions at issue, the advocate general considered "whether Uber's activity must be regarded as a whole comprising, first, a supply whereby passengers and drivers are connected with one another by means of the electronic platform and, secondly, the supply of transport in the strict sense, or whether these two supplies must be regarded as two separate services."658 In examining those questions, the EUAG analyzed Uber's control over transport service delivery.
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87 questions of whether or not Uber is in the transportation business or whether the drivers would be entitled to protections under U.S. employment statutes.
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88 to passengers, or requiring drivers to accept at least 80% of trip requests to maintain account status.672 B Disability Accessibility Uber and Lyft have taken the position that they are not public accommodations and that therefore the ADA does not apply to them.673 As discussed further in this digest, this position has been rejected by at least one federal district court674 and has been challenged by the DOJ.
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89 the public accommodation provision of the ADA could not be resolved at the motion to dismiss stage. Uber had not challenged the allegation that it was liable under the ADA's specified public transportation service provision, so the court did not address that allegation.
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90 Human Rights Law (NYCHRL)
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91 number of claims for fraud and misrepresentation have at least survived motions to dismiss or for summary judgment,695 no cases were identified that resulted in an actual decision against the TNC in such litigation. The primary issues raised in these private actions related to Uber's gratuity practices and Uber's safety claims, particularly in regard to the "Safe Ride Fees." (At least some of the actions raised breach of contract claims, but those were related to the fraud and misrepresentation claims.)
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92 or misleading representations regarding the measures it takes to ensure customer safety in order to induce people to get into a stranger's car .
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93 states had reportedly opened investigations,707 and three additional government actions had actually been filed. In the first action, the City of Chicago and Cook County filed suit alleging that Uber engaged in deceptive practices in failing to correct its data security practices as promised following a 2014 data breach and that it covered up the 2016 hack of its data system and subsequent payment of ransom to the hackers.
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94 the proposed settlement closed on September 15, 2017. However, the full commission had not yet voted on the settlement as of the time Uber disclosed its 2016 data breach.713 E
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95 that in the instant case, the policy rationales weighed in favor of letting the complaint to go forward on the scope of employment question: Assaults of this nature are exactly why customers would expect taxi companies to perform background checks of their drivers. Holding Uber liable could also forward the underlying policy goals of respondeat superior, including prevention of future injuries and assurance of compensation to victims.
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96 classifying workers as independent contractors is an integral part of the ride hailing company's business model, and has saved Uber millions of dollars."726 The complaint also asserted that the plaintiffs were not subject to the app's arbitration provisions, as they were not required to read them to sign up for the app and at no time did they consent to the terms. The allegations concerning the terms of the app go to the allegedly unconscionable nature of the terms.
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97 proprietary. The court determined that the PUC had correctly applied the test under its own regulation of balancing the alleged proprietary nature of the information at issue against the public interest in disclosure.
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98 3. San Francisco Government Enforcement Action On June 22, 2017, a California court ordered Uber to comply with a San Francisco administrative subpoena to disclose driver contact information for the purposes of ensuring compliance with the San Francisco business and tax code.741 Also in June 2017, the San Francisco City Attorney's Office (City Attorney)
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