I have some sympathy with the views expressed by our learned friends above. But not much. Personally, I think Uber’s mistake was referring to drivers as contractors. They are not. If Uber provides a data service, the drivers are their customers. If they’re also providing a business model, then the drivers might be franchisees. I’m using these words, incidentally, because it makes governments and their lawyers happy if things are neatly categorized, not because I believe they have any useful real-world meaning.
“none of our reasoning should be taken as doubting that [Uber] could have devised a business model not involving them employing drivers.”
They could undoubtedly have devised a product that kept the lawyers happy, and might even have made drivers happier. Drivers have genuine gripes about their relationship with Uber - for example, one “feature” is that the driver is not told where the passenger is going. This is just stupid. An information system correctly designed for drivers would provide this information. However, if they tried to fix everything the lawyers don’t like, they’d end up with a commercially-useless proposition.
The contradiction [between Uber purporting] to be the drivers’ agent and [asserting] “sole and absolute discretion” to accept or decline bookings.
I have no idea where they got this from. The driver presses the ‘accept’ button. Or not. I’m guessing they took this out of some other context: Uber logically would need to assert discretion over the start of the booking process, for example to exclude people whose payment method is blocked or who are known to be bad customers in some way.
The fact that Uber interviews and recruits drivers.
Or, of course, they could allow any random rapist or psychopath access to their app without any checks at all. In which case some guy in wig would be on their case for not performing adequate checks. Rock and a hard place.
You could easily argue that Uber are simply promoting their services to potential customers (ie., drivers). Or if you refuse to accept that, it’s logically possible to “recruit” independent contractors. IT companies do it all the time.
The fact that Uber requires drivers to accept trips and/or not to cancel trips, and enforces the requirement.
Yeah, they just don’t. They ‘encourage’ drivers to accept 80%+ and give them a bonus if they do. Not a good idea IMO, but I don’t see how that crosses the line to ‘employment’. I don’t get instructions from my boss to tell me to complete 80% of the tasks that need doing.
There are certain requirements about cancellations, but these amount to no more than minimum good manners. Drivers are at liberty to turn someone away if (for example) they’re drunk, but not if they’re black.
Again, rock and a hard place. If they didn’t do this, service quality would nosedive and people (especially lawyers) would be up in arms.
The fact that Uber controls the key information […] and excludes the driver from it.
Uber clearly does withhold important information (as in the case of passenger destination mentioned earlier). But exactly what are the lawyers asserting here? That Uber should provide an unfiltered flood of raw data to every driver?
Providing a UI that works for people whose attention is focused on a safety-critical task (driving) is one of Uber’s key selling points, and the data is theirs to sell. That is, in fact, the entire basis of their registration as a data service. Oh, but they’re lying about being a data service. Circular logic much?
The fact that Uber sets the (default) route and the driver departs from it at his peril.
Rubbish. The route, as far as I can tell, is calculated by Google, and drivers accept it because it’s 99% likely to be good.
Apparently customers can ask for a route change, and drivers can use their own discretion to account for traffic problems. In practice if a customer doesn’t complain about a long-winded route, nobody cares.
The fact that UBV [the Dutch co.] fixes the fare
Uber is providing information about the market - in this case ride scarcity and the typical prices customers expect to pay. The critical point here is that the driver is not forced to make trade at a price he doesn’t like: if he doesn’t want to accept the fare, then he doesn’t.
As usual, the lawyers are floundering outside their narrow expertise. If Uber didn’t do this, it would be chaos. Tricycles in the Philippines make up their fares according to how much they think the customer is good for. The net result is complete market failure.
The fact that Uber subjects drivers to […] a performance management/disciplinary procedure.
Customers rate drivers and Uber blocks service access to poorly-performing drivers … because (a) if they didn’t, the rating system would be 100% pointless and (b) they have the right to sell their data and billing service (that’s what they do, remember?) to whoever they choose.
The fact that Uber determines issues about rebates, sometimes without even involving the driver whose remuneration is liable to be affected.
As do Credit Card companies under similar circumstances. This issue is related to their billing service, which you could argue is only tenuously related to the ride-booking service (and in fact isn’t even available in some places).
The fact that Uber imposes numerous conditions on drivers […] instructs drivers as to how to do their work, and, in numerous ways, controls them in the performance of their duties.
Any contract imposes numerous obligations on both parties. That’s the whole point of a contract. This is an astoundingly stupid remark.
As with fares, Uber do this because it makes good business sense, and because the alternative would be chaos, with each driver making up his own policies (and most likely coming up with bad ones).
The fact that Uber accepts the risk of loss which, if the drivers were genuinely in business on their own account, would fall upon them.
Not sure what they’re referring to here? Uber’s insurance services?
The fact that Uber handles complaints by passengers
Fine, so they offer a BPO service too.
The fact that Uber reserves the power to amend the drivers’ terms unilaterally.
Um what? This is exactly what happens with a customer/service-provider relationship. My bank does it all the time.
In most jurisdictions this is one of several things an employer absolutely may not do, at least not without the employee’s consent and an updated contract of employment.
Oh good grief, here we go again. There is no ‘bargaining position’ at all. Bargaining is not a component of the transaction. Uber offer a service to the drivers - customer recruitment and billing - and the drivers decide whether or not that service is advantageous. When was the last time you went into a restaurant and ‘bargained’ over whether the menu prices were fair or not?
In the land of Because I Say So. Therefore it’s an employment contract. Awesome. Why not just say that in the first place, instead of pretending you’re going through this logically?
All the humming and hawing really just illustrates what I said earlier: governments need to stop getting so obsessed with putting companies, or their various bits, into neat boxes. Are there lawyers out there arguing whether airlines are, in fact, catering companies which serve meals in flying restaurants? The days when William Smith and Co. was a Miller with six Employees and John Jones around the corner was a Carter with an Apprentice are long gone.
Um, yes, I know. And it’s my right, and hers, to create that relationship at our discretion. As opposed to the government’s discretion.
You missed my point though. I was asking why she gets to charge $400 an hour. Answer: artificial scarcity. Lawyers collude to ensure that prices stay high, and erect high barriers (well, one bar) to entry into the profession. An unequal relationship has been created, but funnily enough we don’t hear lawyers protesting about it.
I find it odd that you’re arguing that the likes of you and me - skilled people - should be allowed to sell services in whatever way we choose, protected by all kinds of statutes and precedents, while someone with less lucrative services to offer should only be allowed to become a vassal. For his own good, like.