Uber driver wins misclassification case

The California Labor Commissioner recently ruled that former Uber driver Barbara Berwick was an employee of the ride share company, not an independent contractor, and therefore was owed more than $4000 in job-related expenses that Berwick paid while working for Uber.

While the ruling applies only to Berwick, the commissioner’s ruling could have far-reaching consequences for Uber and other employers who classify workers as independent contractors in order to lower their labor costs.

According to Bloomberg, the commissioner’s ruling, “strikes at the heart of (Uber’s) business model, (which) like other ‘sharing economy’ startups has built a business around a flexible car fleet piloted by people it contends are independent contractors. If Uber’s drivers were treated as employees, the company would be required to guarantee them a minimum wage, compensate them for mileage, and pay into social security.”

After the ruling was issued, Uber announced that it would appeal the commissioner’s ruling in court.

In announcing its decision to appeal, Uber touted its labor policies, which a company spokesperson said gives workers “complete flexibility and control.”

But some Uber drivers have a somewhat different view of Uber’s flexible labor policies. “Uber’s like an exploiting pimp,” said Arman, an Uber driver in Los Angeles to  writing for Jacobin. “Uber takes 20 percent of my earnings, and they treat me like shit — they cut prices whenever they want. They can deactivate me whenever they feel like it, and if I complain, they tell me to fuck off.”

Other Uber drivers critical of the company’s labor policies are a bit less caustic than Arman, who asked Asher-Schapiro not to use his last name. For them, the word that best describes Uber’s labor policies isn’t “flexible;” instead it’s “indifferent.”

Some Uber drivers have responded to the company’s indifference by organizing. One of the new app drivers organizations in Southern California is called the California App-based Drivers Association (CADA).

“(Uber’s) manifest indifference to the plight of its drivers . . . led drivers to form CADA,” said Lotfi Ben Yeder, a member of CADA’s leadership council.

Among other things, members of CADA complain that Uber doesn’t provide them with enough protection on the job.

One female driver who didn’t want her name used said that when a customer sexually harassed her, she wanted to end the ride but didn’t do so because she feared that the customer might give her a negative approval rating, which could lead to her being fired.

When she reported the harassment to Uber management, she said that she received no meaningful response.

Other drivers who belong to CADA complained that Uber’s approval rating system is arbitrary and not transparent. If drivers receive a bad rating,which could lead to their firing, there’s no way for them to appeal.

In addition, drivers are responsible for paying for gas, tolls, insurance, repairs, and other work-related expenses and receive no company benefits including health insurance. The company also doesn’t make social security or unemployment insurance contributions on behalf of the driver.

CADA has affiliated with Teamsters Local 986, which issued a statement after CADA was formed in 2014.

“We look forward to working with CADA to help the drivers win fairness in the workplace and help them get recognized for the work they do making Uber and other app-based companies successful,” said Chris Griswold, secretary-treasurer of Local 986. “These app-based companies need to start treating their professional drivers with the respect and dignity that they deserve.”

Like their counterparts in Southern California, Uber and other app-based drivers in Seattle have formed their own organization–the App-based Drivers Association (ABDA).

Members of ABDA also complain about Uber’s non-transparent approval rating system and are seeking a voice to make it more fair.

“The association will give us a voice, more control over our working conditions, and an opportunity to be heard,” said Ydediya Seifu, a member of ABDA’s leadership council.

ABDA has affiliated with Teamsters Local 117.

The Berwick ruling by the California Labor Commissioner affects only one former driver, but the commissioner’s ruling does not bode well for Uber, which is facing challenges from other drivers, who contend that they are employees, not independent contractors.

The Berwick ruling dismisses Uber’s claim that it’s nothing more than a neutral technological platform that connects passengers with owner operator drivers.

According to the commissioner’s findings, “(Uber) controls the tools the drivers use,” closely monitors their approval ranking, and “terminates their access to the application (in other words, fires them) if the ratings fall below a specific level (4.6 stars).”

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NLRB ruling could end independent contractor status for port truck drivers

Truck drivers at the Port of Long Beach, California on March 21 announced a National Labor Relations Board settlement with a trucking firm that could end the practice of misclassifying short-haul truck drivers as independent contractors.

Members of Justice for Port Truck Drivers and Teamster officials at a media conference said that the NLRB Region 21 office had negotiated a settlement between the Teamsters and Pacific 9 Transportation that requires the company to treat its truck drivers as employees.

The California state labor board has also taken action supporting the workers’ claim that they are employees rather than independent contractors.

The NLRB settlement, the result of an unfair labor practices charged filed by Pacific 9 drivers and the Teamsters, requires the company to post notices affirming that the drivers are employees who have the right to organize a union without fear of recriminations from the company.

The company had asserted that the employees were independent contractors, who don’t have the right to form unions.

The NLRB’s ruling could change the employment practices of short-haul trucking companies throughout the US, which since the trucking industry was de-regulated 30 years ago have lowered wages of their drivers by misclassifying them as independent contractors.

“The 30-year debate is over,” said Eric Tate Teamster Local 848 secretary-treasurer at the media conference. “The misclassification lie has been busted. The port drivers are, in fact, employees. The NLRB has said so. . . . Pac 9 has said so. Now every port truck driver who wants to end their sweatshop conditions can bargain collectively to climb the economic ladder into the middle class.”

The unfair labor practices charge that led to the settlement was filed in 2013.

Drivers at Pacific 9 complained that when they began talking about forming a union, management began interrogating them about their union activities and threatened to close down operations if the workers continued to try to organize a union.

The company denied the charge and argued that the drivers were independent contractors who aren’t covered by the National Labor Relations Act.

Low pay and general lack of respect from the company drove workers to consider forming a union.

“I work more than full time for Pac 9, and the company tells me where to go, what to do, and how much I will be paid,” said Amador Rojas, a Pacific 9 driver. “I do the exact same work and in the same way as employee drivers, but I earn a lot less because the company deducts their business expenses from my paycheck.”

Short-haul drivers misclassified as independent contracts pay for truck maintenance, fuel, parking, insurance, and vehicle fees that according to the Los Angeles Times, reduce take home pay to as little as $20,000 a year.

“We are making peanuts over there,” said Daniel Linares, a Pacific 9 driver to the Times at the media conference. “Some people working at McDonald’s, they  make more money than us.” We want a union “so we can get decent pay and benefits, in order to lead a decent life.”

Pacific 9 drivers have also filed 50 wage and hours claims against the company that will soon be heard by the California Division of Labor Standards.

The drivers have charged the company with wage theft and making illegal deductions from their paychecks. The claims are worth $5 million.

Other short-haul drivers in the Los Angeles area have made similar claims against their employers. In total, 400 wage theft claims have been filed against Port of Los Angeles and Port of Long Beach trucking companies.

So far, the labor board has ruled on 30 of the claims, found in favor of the drivers in all of them, and awarded $3.5 million in back pay.