I can see some pretty clear holes in that reasoning. If you spend even a few minutes investigating whether you should actually drive with the Uber app, you realize there's an incredibly complex set of calculations to understand profitability, what kind of car to lease, how much to invest in passenger extras to boost your rating, associated "hidden" costs to factor in, etc.
Drivers absolutely choose their tools and invest heavily in those tools which directly impact their profitability and their ratings. Drivers absolutely employ managerial skill in deciding what hours and how many hours to work and what areas to drive in to get the best passengers and best ratings.
For example, the last Uber ride I took, the driver explained how they specifically avoid driving during certain time frames and certain locations because the fares are more likely to damage their tools, or leave poor ratings, or start yelling at them randomly.
> Uber exercises extensive control over vetting and hiring drivers...
For a pretty lose definition of 'extensive'. Nothing compared to a typical job interview and vetting process that a real hire goes through. How many dollars per contractor does Uber spend validating drivers? Probably averages to something like $25 - $50. There's a validation process, certainly, but it's hardly a "vetting" process.
> But for Defendant's intellectual property, Plaintiff would not have been able to perform the work
This is also absolutely not true. There are a number of different apps which would allow the plaintiff to perform substantially the same work using the same tools and the same business plan. But for using the Uber app, they would not be able to pickup Uber fares, obviously, but that's a tautology. They certainly would be able to perform the same work though. Or they could write their own app and perform the same work (obviously fighting the network effect, they may not succeed, but it's certainly possible).
The fact is that plaintiff can drop Uber on Monday and be driving for Lyft on Tuesday, or even drive for both concurrently and arbitrage between the two apps.
Personally I think this ruling goes too far, but it is a close call and it will be very interesting to watch this develop. The chicken farmer analogy is a good one. If Uber drivers are employees, it actually breaks a fairly large number of well established business models. I think this has more to do with push-back against Uber specifically than technical compliance with the law.
> The fact is that plaintiff can drop Uber on Monday and be driving for Lyft on Tuesday, or even drive for both concurrently and arbitrage between the two apps.
I keep seeing this, why do you believe that because people are using more than one app it makes it impossible for them to be employees? Why can't someone work more than one job and be considered an employee of both?
Not an expert, but intuitively it shows that Uber doesn't have any monopoly over their time at any level.
They can't be hourly, because in any given hour they may work for two different companies. They can't be salary, because they are collecting income from both companies concurrently.
So what are they? Minutely employees?
Even if you try to say that they are minutely employees, you have to account for the fact that there is no preset schedule, or even an expectation that the Uber driver must take a fare offered them. In other words, there's no "boss"; the computers are just making a series of offers, some of which may be accepted and others rejected.
Since each effective work 'shift' begins with picking up a rider and ends once they're dropped off, outside of the taxi industry the best comparison i can make off the top of my head is the workers of one of those 900s numbers. They can work from home and accept calls as they please, with each payment being independent of the next. I'm not sure if they're contractors or not, never really looked into it, but they would be 'minutely employees', so to say. You don't even really need a 'boss' in that situation either, just a computer switching calls.
That's another great example, and I think that industry and thousands more just like it are all 1099 today and are impossible to run as W2. This is a really crucially important distinction which drives a significant percentage of GDP. That's why I think ultimately they are throwing the baby out with the bath water and it won't stand.
Drivers absolutely choose their tools and invest heavily in those tools which directly impact their profitability and their ratings. Drivers absolutely employ managerial skill in deciding what hours and how many hours to work and what areas to drive in to get the best passengers and best ratings.
For example, the last Uber ride I took, the driver explained how they specifically avoid driving during certain time frames and certain locations because the fares are more likely to damage their tools, or leave poor ratings, or start yelling at them randomly.
> Uber exercises extensive control over vetting and hiring drivers...
For a pretty lose definition of 'extensive'. Nothing compared to a typical job interview and vetting process that a real hire goes through. How many dollars per contractor does Uber spend validating drivers? Probably averages to something like $25 - $50. There's a validation process, certainly, but it's hardly a "vetting" process.
> But for Defendant's intellectual property, Plaintiff would not have been able to perform the work
This is also absolutely not true. There are a number of different apps which would allow the plaintiff to perform substantially the same work using the same tools and the same business plan. But for using the Uber app, they would not be able to pickup Uber fares, obviously, but that's a tautology. They certainly would be able to perform the same work though. Or they could write their own app and perform the same work (obviously fighting the network effect, they may not succeed, but it's certainly possible).
The fact is that plaintiff can drop Uber on Monday and be driving for Lyft on Tuesday, or even drive for both concurrently and arbitrage between the two apps.
Personally I think this ruling goes too far, but it is a close call and it will be very interesting to watch this develop. The chicken farmer analogy is a good one. If Uber drivers are employees, it actually breaks a fairly large number of well established business models. I think this has more to do with push-back against Uber specifically than technical compliance with the law.