Labor Law

How risky is your Uber ride? Much More than you think

An Uber ride is different from hopping into a taxi or a traditional car or limousine service. When you download Uber's app and get into a car summoned with the mobile reservation system, you agree to a host of terms and conditions by default. Uber claims it puts potential drivers through a background check so that they can become an impromptu taxi driver using their own car and Uber's tech platform. The incidents, injuries, assaults and accidents involving Uber drivers and the riding public are too numerous to detail. But the real issue is that the public should understand Uber's responsibility to passengers (or lack thereof).

What exactly do passengers agree to when they use Uber? That depends on whom you ask. Most people don't know what they're getting into when they get into one of these Uber cars and they surely don't know what they're getting into when they download the app. The public is essentially giving Uber a free pass -- up to and including possible death.

Uber's terms and conditions are a way for the company to absolve itself of any liability in cases of injury or accident and to avoid responsibility for a driver's actions. It is a way for Uber to attempt to cover their ass and claim they are not responsible for anything that happens to you. Uber's public statements on safety contradict its terms and conditions. It is akin to an outright deception on people. They surely do not in any way seek to warrant that their product/service is safe.

The fine print of Uber's  terms and conditions clearly says that passengers accept a risk by using the service. "You understand, therefore, that by using the application and the service, you may be exposed to transportation that is potentially dangerous, offensive, harmful to minors, unsafe or otherwise objectionable," Uber's terms and conditions read, "and that you use the application and the service at your own risk." Lyft essentially operates the same way as Uber.

In essence, Uber and Lyft are basically trying to show through their terms of use that they are ride-matching services, rather than transportation companies. No one is really buying that they are merely tech platforms, but people continue to use these services without knowing the true potential dangers

While there are some Uber and Lyft drivers that are safe, courteous and competent, several incidents have occurred during the past few years that have called into question the safety of the services. The most severe incident was the death of 6-year-old Sophia Liu, who was  struck and killed by an Uber driver on New Year's Eve in San Francisco. There have also been more than a dozen allegations of sexual assault and gropingkidnapping; and physical assault, according to several media stories.

Uber claims its drivers are independent contractors rather than employees, which if true, it protect Uber from liability. But the company's terms and conditions can be trumped in court if it's shown that Uber exercises a certain amount of direction and control over its drivers and they more are akin to employees. Such factors of control include the ability to hire and fire drivers, decide where their services are performed, or provide them with specialized equipment, along with other considerations -- many of which, some would argue, including myself, Uber has.

Soon enough, the time will come when the issue of whether Uber's drivers are independent contractors or employees will hit the appellate courts and if it goes bad for Uber, then their entire business model may be placed in grave danger...the same type of grave danger that Uber often places its customers.....the danger of death.

Uber to pay $20,000,000.00 to settle unfair practice claims

Uber just settled a claim filed by the FTC (Federal Trade Commission) forcing them to pay $20 million and alter various business practices including misleading their own drivers on how much they would make driving for Uber. 

Uber apparently had inflated its hourly drivers' earnings in its ads in order to attract drivers to its company. But once Drivers started to receive their paychecks, they discovered that their actual earnings were substantially less than Uber claimed. Additionally, Uber's vehicle solutions program, which helped drivers find vehicles to lease or own, advertised the "best financing options available." Yet, drivers who leased through the platform received worse rates than customers with the same credit score would typically obtain.

According to the FTC, many consumers sign up to drive for Uber, but they shouldn’t be taken for a ride about their earnings potential or the cost of financing a car through Uber. The company is now barred from misrepresenting drivers' earnings and financing and lease terms for its vehicle leasing terms.

While this settlement may put millions of dollars back in Uber drivers’ pockets, the real issue is how long are the Uber drivers going to allow themselves to be taken advantage of. Uber claims to be the best option for anyone looking to earn money on their own schedule, but the reality is that they control your every move and in the long run, that are going to seal your own fate. It is public knowledge that Uber wants and is in the process of creating a driverless vehicle….and they will eventually get it. When that happens, a large part of the competition will be eliminated and you will be left with no job because they will not need you any longer. All you will have been left with is the forms to fill out to get unemployment….and I am sure Uber will fight you on that too. Don’t be fooled. Uber is not the company you should be driving for. Go and stay with a car service that has been around for decades, knows how to treat its customers and respects its drivers. To accept anything less, is not fair to you. The drivers of New York City deserve better. 

Federal Judge Rejects Uber's $100M Settlement Offer to Its Drivers

Now it is time for the real game of chicken. Since the Federal District Court Judge overseeing what is likely the biggest labor law case in history has rejected the $100,000,000.00 settlement Uber was going to pay to its drivers, both sides will have to move forward. The stakes are high for the drivers, even higher for the lawyers for Uber and the highest for Uber itself. The drivers have little to lose as most would only get peanuts. The lawyers for Uber agreed to reduce their legal fee from $25,000,000.00 to $10,000,000.00 to push the settlement through. But for Uber, it may be winner take all. Uber may move forward and win simply because the appeals court may not permit the class action to move forward at all, thus killing the case as all drivers would be then forced to arbitration on a case by case basis. On the other hand, if the case moves forward in class action status and Uber loses, the gig economy may be upended, Uber's $65 billion dollar valuation make implode and Uber as we know it may be over. I for one am happy that the case must move forward. The drivers are the client's and they should be zealously represented and not sold out by their lawyers who simply wanted to cash in before the oven got too hot and they were at a severe risk of losing any legal fee they could have earned. As I have written before, I have never seen a case so clear for employee-employer relationship as Uber and its drivers in my 20 years of practicing law. The Judge overseeing the case must agree that the case has great merit, otherwise, the $100M offered would have been a windfall and no judge would have declined to approve such a settlement for a meritless case. Time will tell what happens when the appeals court rules on the class action status (obligation of each driver to go to arbitration as opposed to court) and we will see who blinks first.......the 800 pound Gorilla (Uber) or the lawyers who are now forced to either move the case forward on its merits or to obtain a better and increased monetary settlement from Uber. Grab tour seats because this issue is far from over. 

Uber is Creating a Jobless Future

Professional car service and taxicab drivers are fighting for survival in New York City in a new economy which is trying to replace them with other means of transporting customers.  New business models like those of Uber and Lyft are threatening drivers and customers alike. Car service and taxicab drivers are joining a long list of people replaced by new technologies: grocery-store clerks, dockworkers, retail employees (especially from book, music, and video stores), etc.  As the twenty-first century proceeds, it is replacing jobs with apps. This is a new lower-wage and even jobless model of business.  There are three problems at work, which are creating a new jobless economy, and are associated with, respectively, the business models of Uber along with the likes of Wal-Mart, and Amazon.

The Uber Problem

The first problem with our "new economy" is the Uberization of the work force and the business model of replacing well-paid, full-time, professional workers with low paid amateurs. While Uber drivers bring in somewhat more revenue per hour for short shifts than do cab drivers (who make much more money per hour for long shifts than for short ones), they are also entirely self-financing (car, gas, insurance, maintenance, etc.), unlike most cab drivers (who depend on their companies to provide some or all of their operating costs).  Such jobs are often intended by car-owners to supplement other income, or while looking for a better job, rather than (as for most cab drivers) serving as a long-term profession.  The Uber model of transportation has been deconstructing the regulatory environment designed to keep us safe, allowing drivers to work without undergoing local police investigation (generally required in most places for cab-driving licenses).  They also drive cars that are not inspected by any authority, in contrast to expensively inspected taxicabs.  Uber drivers have been involved in many physical and sexual on passengers and bystanders and the is creating an ugly reality that existing regulations have not helped to prevent.

Unfortunately the dangers posed by Uber to our communities are not limited to the immediate physical dangers posed by improperly licensed and unvetted drivers, operating uninspected vehicles, and with no regulatory intervention in the employment of potentially dangerous individuals (with criminal backgrounds, or with high accident rates).  Uber is also teaching passengers that any idiot with a car can replace a professional driver operating an expensively fitted, inspected, and insured vehicle.  Uber is teaching us to disrespect professional means of income-earning, and to prefer a cheap but dangerous alternative.  Uber is teaching us to prefer a less effective and less prosperous economy, and offers us discounted car rides in return for our safety, our jobs, and our souls.  As the Uber model passes (as it ultimately will) to cargo transport and other business sectors, our economy will replace more full-time jobs with low-pay, part-time work.  Wealth will be created for the designers of Uber, Lyft, and other services.  But such services are also transforming middle-class jobs of the 20th century into lower-class jobs of the 21st century.  Uberization is diminishing jobs as drivers themselves make less money and consume less, driving demand and production down as well.

Uber is not alone, nor is it the first manifestation of this problem.  From the 1950s through the 1980s, store clerks and cashiers earned income levels closer to the middle class.  Such workers had to memorize many prices and categories of products, and operate complicated registers.  They required training and experience to do their jobs properly; and could only be fired at the expense of the investment in training a new employee.  However, the development of bar-codes and scanners enabled grocery and retail stores to hire lower-paid workers, and to deploy new workers with little training and experience (enabling bosses to replace more easily those wanting raises or organizing for benefits).  A career profession became merely an entry-level job for adolescents; and a job capable of supporting a small family became a minimum-wage job pushing the professional into looking for work elsewhere.

A similar phenomenon took place in the 1960s, when factory farming began replacing family farming.  Factory farms employ low-wage workers with little to no experience (often illegal immigrants and young children) and provide consumers with cheap food that also pushed family farm workers into seeking work elsewhere (perhaps becoming grocery-store clerks, or cab drivers).  While few would argue that high food prices are good for a population, the path from that step led to the replacement of other middle-class professions with part-time and/or lower-class pay rates, such as our retail workers and cab drivers.  Uber is merely the latest nail in the coffin of the middle-class worker, a coffin we have been building since the middle class first expanded so successfully in the middle of the last century.

The Wal-Mart Problem

Another effect impacting our economy is its growing Walmartization.  Wal-Mart has sought to provide low-cost products to consumers by encouraging American manufacturers to push manufacturing jobs to overseas locations.  In order to gain customers, Wal-Mart has deliberately deconstructed the American middle class by shipping overseas the jobs on which we depend.  Consumers giving their money to Wal-Mart pay for the privilege of exporting and eliminating our jobs, our economic security, our union rights, our tax revenues, and our social services.

As with Uber, Wal-Mart is of course not acting alone.  Since the 1990s NAFTA has helped to globalize American manufacturing.  And the US has been bleeding manufacturing jobs for decades, as foreign nations have seen increases in educational levels, technical familiarity, physical health, and political stability; while also remaining below US rates of income (all things encouraging ever more investment in new overseas plant capital).  However, Wal-Mart developed a specifically targeted plan for pushing manufacturing overseas, and at the same time kept its own workers at low wages (forcing many to seek government-funded welfare and social support). The company has not only exported middle-class American jobs; but also maintains pressure on the labor market to keep wages at or below poverty levels.  The company’s workers become absolutely dependent on companies like Wal-Mart for their cheap food and products, the only products they can then afford.  Wal-Mart cooperates with Uber and other sectors in deprofessionalizing the labor market (by continuing to push retail wages lower), and in depressing wages and income.  Wal-Mart has been steadily converting the middle class into the lower class (driving down consumption and demand and production); and the working class into the unemployed.

The Amazon Problem

The final effect driving us toward universal unemployment is the Amazonification of business; and the related automation of all work areas.  Amazon has amassed an enormous financial empire by replacing “brick and mortar” businesses with instantaneous touch-screen or keyboard shopping by computer, phone, or tablet.  In the process, the "Amazon Effect" has put out of business bookstores (including major chains like Borders), record stores (also killed by iTunes and other music-sharing technologies), and video stores (with an even more forceful shove by businesses like Netflix).  These impacts have hurt large companies and family-owned businesses alike; and they have killed off more jobs than the growing empires of Amazon and other such companies have created.  Amazon’s deconstruction of “brick and mortar” retail operations did not merely (like Uber) push middle-class jobs into the lower class; or (like Wal-Mart) push middle-class jobs overseas.  Instead, the jobs lost to the Amazon business model (and to data services that replace stores providing books, music, and video) are lost completely, and forever.  For example, Netflix has effectively replaced video stores across the nation; and yet it currently employs approximately 4000 people.

Some businesses have survived the scorched earth left by the “Amazon effect” by emulating the workerless e-commerce model (like Barnes and Noble, which while still maintaining physical book-stores sells a great deal of its merchandise through its automated online ordering system).  Other businesses have survived by becoming tributary fiefdoms of the Amazon empire, selling their products through Amazon’s order processing service (which provides small businesses with a potentially global clientele).  But the failure of 20th century, labor-intensive retail to compete with 21st century, information-intensive business models tells the full story.  Even though some businesses have held on by bowing to the inevitable, the inevitable has killed far more business opportunities and actual jobs than it has created.  Those opportunities created on the information super-highway have largely been monopolized by a few powerful corporations like Amazon, Netflix, Apple, etc.

As with Uber and Wal-Mart, Amazon did not create this phenomenon, but jammed its foot down on the accelerator of the process already underway. The “Amazon effect” are the results of automation and the improvement of technology and software.  Grocery stores also automate and eliminate jobs by using self-checkout lanes (enabling a smaller work force to manage larger numbers of customers and products).  Apps replace workers and specialists.  Expensive and expanding technologies are going to increase also the number and diversity of jobs lost to automation and applications, including many previously seen as “untouchable” (requiring too much dexterity, skill, creativity or intuition, etc.; all of which are now being surpassed by better technologies and software).

In the next decade, self-driving cars are going to replace many of today’s cars.  The self-driving car will launch the next work-force revolution.  Customers frustrated by sketchy and unstable Uber drivers (who by then will have out-priced cab drivers into obsolescence) will enjoy new services which simply send them self-driving car-bots.  Owners of self-driving cars will realize that having their car sitting in the driveway, or in the parking lot at work, is a lost opportunity to have the car make money.  New apps will enable owners of such cars to release their cars to leasing services until they need them back.  Fewer and fewer people will own (and buy) cars, as it becomes easier and cheaper to simply share cars through such systems.  And fewer people will make them.  Soon, no one will be driving cars for a living.  

Into the Jobless Economy We Go!
These three effects are combining to create the new, jobless economy of the 21st century.  Uberization and related effects are helping to deconstruct middle-class incomes and our respect for middle-class professions.  Walmartization is transferring ever more jobs overseas, and maintaining ever more poor people on low-level incomes that force their dependence on government assistance.  Amazonification and automation are reducing and eliminating the work force entirely, insulating wealth from the need to employ people at all.  These effects are progressively transforming capitalism from a labor-intensive means of generating wealth (which “shares” at least a portion of the wealth with the working classes responsible for actually creating it) into an information-intensive model no longer requiring workers.  

The jobless economy also inhibits the formation of small businesses by those without inherited or pre-established wealth.  Small businesses cannot compete on the information superhighway with major corporations able to make and exploit new applications and technologies (and economies of scale) which push their operating costs below those of local businesses.  Local businesses are dependent on many other large businesses to move outside and attract global clientele.  As the century progresses, both work and entrepreneurial opportunities are going to be increasingly monopolized at the top, and are going to be increasingly absent at the middle and bottom.

Ultimately, there are three places these effects can lead us.  The first is the realization that, if people are not going to have either work or business opportunities available to them, then the state is just going to have to provide them with food, clothing, housing, medical care, etc.  This will create the nightmare: the total welfare state.  An uglier option is a dystopian future of mass hunger, disease, suffering, and death. Finally, a third path takes us through violent revolution by the hungry masses; although that option will likely still lead to one or the other of the first two (welfare state, or dystopia of hunger and death).  Are you ready to explore these exciting new vistas?   Then, hop into an Uber car and enjoy the ride!

 

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Who Is The Real Winner In The Uber $100 Million Class Action Settlement

Who Is The Real Winner In The Uber $100 Million Class Action Settlement

While Uber just settled two major class action lawsuits that were pending in California and Massachusetts to the tune of $100 Million Dollars, the settlement does not amount to much and really does not settle anything. This was the case that was supposed to knock Uber off the high perch it has sat on since its founding in 2009. $100 Million Dollars is a lot of money, but with billions in financing, this amount is a very modest price for Uber to pay to protect its business.

The thing is, the settlement does not really settle anything. By settling these lawsuits, Uber has forestalled any precedent being set on the question of whether Uber—and others in the so called “gig economy” has a legal obligation to classify its workers as employees.  A loss of a case like this would cost Uber billions of dollars, eroding its potential profitability and its supposed value.

The question of whether Uber drivers are independent contractors or employees centers largely on how much control the company exerts over them. The main difference is that if drivers are employees, then Uber has to pay drivers benefits like health insurance, paid time off as well as payroll tax and other large costs associated with benefits that employees are entitled to under the law.

The key question left unanswered by the settlement announcement is whether the drivers are receiving enough in return for what they're giving up. Nothing fundamental in the balance of income and expenses will change as a result of the deal. Uber drivers will still have to pay for gas, insurance and wear-and-tear on their vehicles, and Uber will retain the right to set fares and extract fees and commissions of more than 20%.

The settlement of these cases is a great deal for Uber because, at least for the moment, it removes what was plainly regarded as a massive threat to its business. Uber portrays the deal as a complete victory for drivers because according to Uber, drivers value their independence. This is yet another example of Uber’s press relations machine operating at full steam (blow hard steam).

The settlement agreement boils down to one thing: If a judge accepts the terms, Uber can still treat its drivers as independent contractors, in exchange for a few minor concessions that address some concerns that drivers had expressed throughout the case. The main part of the settlement that directly affects Uber riders is the company’s agreement to stop saying that the tip is included in the fare. Uber often discouraged its drivers from soliciting tips from passengers because the company argued the extra step made the experience much less seamless and thus less on-demand. But riders were never prohibited from tipping their drivers; they were just told they didn’t need to. This was done because Uber didn’t want riders to have to carry around cash. Uber’s saw its cashless, friction-free payment experience as a positive differentiator from yellow taxis. The settlement does not require Uber to add an in-app tipping feature which allows riders to add a tip to their electronic bill.

The biggest change for drivers, inside and outside of California and Massachusetts, is that they cannot be deactivated from the Uber platform for failing to accept a minimum number of ride requests. Previously, drivers would receive emails or other forms of communication warning that they would be deactivated/fired if they did not raise their acceptance rate to at least 80 percent of all ride requests.

Drivers in California and Massachusetts will see more minor changes. More specifically, certain drivers in these states will receive some money form the settlement and will have the right to a new appeals panel. Out of the $100 million settlement, $84 million is the first part of the settlement and If Uber goes public, it will have to pay $16 million more. The distribution of the money that drivers receive will be based on a number of factors, but regardless of the factors, the total amount to each driver will range from $24.00 to $8,000.00.

The most significant aspect of the settlement is that drivers in California and Massachusetts get to form an appeals panel, through which drivers can appeal the company’s decision to deactivate them, and a driver association that serves in the place of a union but will not be legally recognized as one. So while there will be a remedy when a driver believes they were wrongfully deactivated, Uber will ultimately have the final say.

In the end, the Uber settlement gives some drivers a few dollars as a one-time payout, but still leaves them working as Uber employees in all but name. Since these lawsuits had the potential to force real change, it is hard to see this as their victory. In essence, Uber just paid through the nose to buy labor peace in California and Massachusetts.

The settlement completely abandons the very point of the lawsuit. The lawyers for the Uber drivers have long framed these cases as a crusade for employee rights. They defended the settlement, saying it was the best one possible given the uncertainties of continuing to trial. Anyone is the legal profession knows that lawsuits are always risky because the outcome is always uncertain. Lawsuits are also very costly. While Uber’s attorneys were undoubtedly paid very handsomely, the attorneys for the Uber drivers (approximately 385,000 of them) have had to pay the costs of litigating these cases to date all with the risk to them of not receiving a fee for its time and efforts. The attorneys for the Uber drivers are asking the judge for a 25 percent cut of the settlement, or about $21.75 million, to cover her team’s costs.

In my opinion, it seems that the lawyers for the Uber drivers are folding their cards in return for a fat fee and promises from Uber that it will make some minor changes to its driver policy. I am sure fighting Uber is a hard and arduous undertaking, but once you take case, a lawyer is supposed to do what is in the client's best interest and not their own....and certainly not where the opponent (Uber) makes out better than all of the parties. It is as if this settlement was a clear victory for Uber.

In the end, a settlement removes the biggest threat to Uber's Business model, while Uber drivers get a bit more protection by having less stringent rules before Uber can deactivate a driver and drivers are allowed to ask for tips from passengers. BIG DEAL......This is a settlement that is fair to drivers? NO WAY. NOT IN MY BOOK. The small amount of money that will be paid to drivers in California and Massachusetts is peanuts and not worth it. This lawsuit was supposed to be about vindicating the rights of Uber drivers, but a settlement of this nature does not accomplish that goal. All this settlement does is provide a big payday for the lawyers representing the Uber drivers. Yes, they worked extremely hard over the past 2.5 years, but in the end they will get about $21.75 million in legal fees from this case. This is a huge incentive for them to settle and the impetus to convenience their clients (the drivers) that the settlement will give them more rights and will vindicate their interests.

I have the utmost respect for the plaintiffs’ attorneys as they took a case and financed it all the way, but I believe they had a great case and would have won. I have been litigating cases involving the issue of employer-employee relationship in almost every forum in New York for the past 20 years and this is one of the most clear cut cases of employer employee relationship I have ever seen. So why settle, especially before the plaintiffs’ attorney even had the chance to make a motion for summary judgment asking the court to declare Uber's drivers to be employees as a matter of law? The answer is that the plaintiffs’ attorneys worked hard, paid money from their own pockets to litigate the case and they wanted to get paid.....and now they will....BUT the real issue of whether Uber's drivers are employees or independent contractors will remain unsettled.

What a shame for the drivers, because they really don't get anything here.....and what a shame for the legal profession because now it is just another case where the lawyers settle because money has that kind of effect on people. This degrades the legal profession....and kind of makes me ashamed to be a part of it. A lawyer is supposed to zealously represent the interests of their client (not their own interests). I apologize in advance to the attorneys for the drivers, but this case has turned into just another case for them to make money. It turns out that it was not about vindicating the rights of drivers. Each driver really did not have much to lose by continuing to litigate the case, but the plaintiffs’ attorneys had millions of dollars in legal fees to lose. This appears to be simply too much for them to risk. The drivers didn't have much to risk by continuing. This is a pathetic settlement that the drivers should reject as it is their case and they should demand more.

Sometimes you have to take a risk and sometimes that risk means taking a case all the way and get a decision. Yes, it would have been a big gamble for the plaintiffs’ attorneys and they did a great job thus far, but I felt so strongly about this case that if asked, I would have worked with them for free. After 20 years of practicing law, I still believe in justice...and in this case, justice was not served. Uber continues to operate with impunity, their business model survives and the drivers go on as usual, getting treated like cattle, when in fact they are as close to an employee of Uber as any case could possibly expose. Again, Uber wins, the lawyers win and the drivers, who are the represented parties, get nothing in the long run.

In the meantime, U.S. District Judge Edward Chen may refuse to approve the settlement until it provides real benefits and lower legal fees. Everything Judge Chen has said up until this point seems to suggest that he was looking forward to a jury trial in this case. The plaintiffs in Uber's case were seeking $3.4 billion, a fairly ridiculous sum but one they thought they were owed. Judge Chen could decide that $100 million isn't enough compensation, or that the reforms Uber is promising more transparency, an ability for drivers to solicit tips and challenge deactivations through arbitration, recognition from Uber of quasi-union "driver associations" don't even scratch the surface.

Until a court decides whether Uber drivers are employees or independent contractors, the debate will not end. I guess a new set of plaintiffs in other states will have to hope for a lawyer that is willing to take the risk of taking this type of case to trial and consider more than their own self interests in being compensated for their efforts rather than the cause they were supposed to be seeking, which is justice. In this case, once again, Uber is the clear winner.

Uber will pay $100 million to settle the biggest legal threat to its business, but are Drivers or Uber the real winner?????

It is crying shame to have settled this case. I am sure fighting Uber is a hard and arduous undertaking, but once you take case, a lawyer is supposed to do what is in the client's best interest and not their own....and certainly not where the opponent (Uber) makes out better than all of the parties. It is as if this settlement was a clear victory for Uber.

As we know, Uber has spent the last two and a half years embroiled in a major legal battle over its business model. The company considers its drivers to be independent contractors, but many of those drivers believe they were treated more like employees. Paying up to $100 million to settle class action lawsuits in California and Massachusetts removes the biggest threat to Uber's Business model. Drivers in those states will remain independent contractors rather than becoming employees. So who wins in all of this????? Certainly not the drivers. The small amount of money they will each receive will perhaps reimburse them for some of their past costs for gas and car maintenance, but Uber is not going to be paying any of these items to drivers in the future. The drivers get a bit more protection by having less stringent rules before Uber can deactivate a driver and drivers are allowed to ask for tips from passengers. BIG DEAL......This is a settlement that is fair to drivers? NO WAY. NOT IN MY BOOK. 

Uber get to keep its business prized model and gets to claim vindication by continuing business as usual. 100 Million to them is peanuts. So we know that Uber benefits the most, but who also benefits....the lawyers for the drivers. Class action cases of this nature are supposed to be about vindicating the rights of the drivers, but for the plaintiffs attorneys it has proven to be clearly about a big payday and mega buck. Yes, they worked extremely hard over the past 2.5 years, but in the end they will get about $25-$30 Million dollars in legal fees from this case. This is a huge incentive for them to settle and the impetus to convenience their clients (the drivers) that the settlement will give them more rights and will vindicate their interests.

I have the utmost respect for the plaintiffs’ attorneys as they took a case and financed it all the way, but I believe they had a great case and would have won. I have been litigating cases involving the issue of employer-employee relationship in almost every forum in New York for the past 20 years and this is one of the most clear cut cases of employer employee relationship I have ever seen. So why settle, especially before the plaintiffs’ attorney even had the chance to make a motion for summary judgment asking the court to declare Uber's drivers to be employees as a matter of law? The answer is that the plaintiffs’ attorneys worked hard, paid money from their own pockets to litigate the case and they wanted to get paid.....and now they will....BUT the real issue of whether Uber's drivers are employees or independent contractors will remain unsettled. 

In the interim, Uber, which doesn't really make money at all, will continue to save as much as 30% or so on labor costs, because independent contractors aren’t entitled to the same safety nets as traditional employees—i.e., benefits such as health insurance and minimum wage protection. They’re also responsible for paying their own business expenses. For Uber drivers, these include gas and car maintenance, which really add up.

What a shame for the drivers, because they really don't get anything here.....and what a shame for the legal profession because now it is just another case where the lawyers settle because money has that kind of effect on people. This degrades the legal profession....and kind of makes me ashamed to be a part of it. A lawyer is supposed to zealously represent the interests of their client (not their own interests). I apologize in advance too the attorneys for the drivers, but this case has turned into just another case to make money. It turns out that it was not about vindicating the rights of drivers. Each driver really did not have much to lose by continuing to litigate the case, but the plaintiffs attorneys had about $25-$30 Million dollars in legal fees to lose. This appears to be simply too much for them to risk. The drivers didn't  have much to risk by continuing. In the end, for the drivers who drove the most, around 10,000 drivers, they will receive around $8,000. For the rest, the more than 122,000 drivers who have driven less than 750 miles, they should expect an average of $24. This is a pathetic settlement that the drivers should reject as it is their case and they should demand more.

 

Sometimes you have to take a risk and sometimes that risk means taking a case all the way and get a decision. Yes, it would have been a big gamble for the plaintiffs attorneys and they did a great job thus far, but I felt so strongly about this case that if asked, I would have worked with them for free. After 20 years of practicing law, I still believe in justice...and in this case, justice was not served. Uber continues to operate with impunity, their business model survives and the drivers go on as usual, getting treated like cattle, when in fact they are as close to an employee of Uber as any case could possibly expose. Again, Uber wins, the lawyers win and the driver, who are the represented parties, get nothing in the long run. 

The settlement represents a huge win for Uber. If the lawsuit had gone to trial, and a jury decided that drivers indeed deserved to be full employees, then Uber could have suddenly found itself responsible for all sorts of extra costs, from Social Security payments to minimum wage requirements. Instead, drivers will stay "independent", and Uber keeps its costs low. Don't be surprised if you don't see any Uber drivers celebrating in the streets as a result of this settlement. Many were hoping for a much different outcome.

I believe it is obvious that the plaintiffs/drivers who wanted to be employees are going to be disappointed and they should be. Although the lawsuit was settled, for the drivers, Uber really won this case.

But drivers could end up eventually coming out on top, depending on whether the settlement is approved by US District Court Judge Edward Chen, and everything he has said up until this point seems to suggest that he was looking forward to a jury trial. The plaintiffs in Uber's case were seeking $3.4 billion, a fairly ridiculous sum but one they thought they were owed. Judge Chen could decide that $100 million isn't enough compensation, or that the reforms Uber is promising more transparency, an ability for drivers to solicit tips and challenge deactivations through arbitration, recognition from Uber of quasi-union "driver associations" don't even scratch the surface.

Another potential poise result from this settlement is that without any jurisprudence on the most critical issue of employer-employee relationship, there is nothing preventing others from championing the cause in the future. The case would be settled and not decided. Until a court decides whether Uber drivers are employees or independent contractors, the debate will not end. I guess a new set of plaintiffs in other states will have to hope for a lawyer that is willing to take the risk of taking this type of case to trial and consider more than their own self interests in being compensated for their efforts rather than the cause they were supposed to be seeking, which is justice. 

 

A Distinction Without A Difference? Uber Is Just A Car Service By Some Other Name

You have probably heard of Uber, the app that lets you pre-arrange transportation from your smartphone. You may also have heard of its competitors Lyft and Sidecar.  Uber, Lyft and Sidecar have described their services as "ride-sharing." They claim they are not a taxi company, or even a car service. Instead, they claim to provide "marketplaces" where drivers can offer their services and users can get a ride. Lyft even goes so far as to describe their users, on both ends, as a "community." It's "your friend with a car," according to the website - not a driver you are hiring.

 There is an obvious tension in New York City, and around the country, between our traditional idea of a car service and the model that Uber, Lyft, and Sidecar provide. This is at the heart of the debate over government oversight and fairness to traditional car services, who are heavily regulated in New York City. The California Public Utilities Commission (CPUC) was the first to categorize Uber, Lyft, and Sidecar as an entirely new category of transportation services: transportation network companies, or TNCs.

 The issue of what exactly a transportation network company is has plagued Uber and its competitors across over the country and around the world. So far, some city governments have embraced Uber and Lyft like they are the best thing since sliced bread, while other officials have been unimpressed by the companies' insistence that they are not providing transportation, and therefore get to skirt around regulations that are in place for the safety of the riding public.

 Uber, Lyft, and Sidecar would rather have you think of them as technology company. As Uber wrote in a legal filing with the CPUC: 

Uber operates no vehicles, and does not hold itself out or advertise itself as a transportation service provider. In fact and law, Uber does not provide transportation services of any kind and does not own, lease or charter any vehicles for the transportation of passengers. On the contrary, Uber is a technology company that licenses the Uber App to transportation service providers. The transportation service providers pay a fee to Uber to use its software technology; the passenger of the transportation service provider pays the transportation service provider for transportation services received.

 Current car service owners in New York City, who have been in the industry for dozens of years have retorted that Uber’s claim to be a technology company is a farce. This is so because Uber sets the rates for both the passengers and the drivers. They collect the money and pay the driver. They hire the drivers. They blackball undesirable passengers. They tell their drivers where the best places to pick up are and, if the drivers don't pick up a high enough percentage of the fares, Uber fires them. But Uber isn't in the transportation business. Right!

 Some believe that government agencies and regulators who agree with Uber’s take that they are a technology company are likely to be in the pockets of politicians who make the laws and government regulators who have resisted the calls of the traditional car services to subject Uber to the same regulations as any other car service.

 While Uber disclaims that it is a “transportation company,” Uber has previously referred to itself as an “On-Demand Car Service,” and goes by the tagline “Everyone’s Private Driver.” Indeed, in commenting on Uber’s planned expansion into overseas markets, its CEO wrote on Uber’s official blog: “We are ‘Everyone’s Private Driver.’ We are Uber and we’re rolling out a transportation system in a city near you.” Other Uber documents state that “Uber provides the best transportation service in San Francisco . . . .” Moreover, Uber does not sell its software in the manner of a typical distributor. Rather, Uber is deeply involved in marketing its transportation services, qualifying and selecting drivers, regulating and monitoring their performance, disciplining (or terminating) those who fail to meet standards, and setting prices.

The central premise of this argument is Uber’s contention that it is not a “transportation company,” but instead is a pure “technology company” that merely generates “leads” for its transportation providers through its software. Using this semantic framing, Uber argues that its customers buy dispatches that may or may not result in actual rides. In fact, Uber notes that its terms of service with riders specifically state that Uber is under no obligation to actually provide riders with rides at all. Thus, Uber passes itself off as merely a technological intermediary between potential riders and potential drivers. This argument is fatally flawed in numerous respects.

First, Uber’s self-definition as a mere “technology company” focuses exclusively on the mechanics of its platform (i.e., the use of internet enabled smartphones and software applications) rather than on the substance of what Uber actually does (i.e., enable customers to book and receive rides). This is an unduly narrow frame. Uber engineered a software method to connect drivers with passengers, but this is merely one instrumentality used in the context of its larger business. Uber does not simply sell software; it sells rides.

A United States District Judge in the Northern District of California recently said in a court decision that”

Uber is no more a “technology company” than a 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. Indeed, very few (if any) firms are not technology companies if one focuses solely on how they create or distribute their products. If, however, the focus is on the substance of what the firm actually does (e.g., sells cab rides, lawn mowers, or sugar), it is clear that Uber is most certainly  a transportation company, albeit a technologically sophisticated one.”

TNC’s have been operating in many states by thumbing its nose in the air and laughing at government regulators. These TNC’s are taking advantage of loopholes in local laws to sidestep regulations that protect the public, drivers and others.  Although they purport to provide “ridesharing” services or be the provider of a “marketplace”, the business model of TNC’s is in direct violation of any traditional understanding of ridesharing and the means by which transportation is provided and regulated, especially in the City of New York. 

 In New York City, some people still use a telephone to call a car service for pre-arranged transportation, while others use smartphone app created by the TNC. Some car services in New York City actually have their own smartphone application, just like the TNCs, that allows the customer to pre-arrange transportation. But in New York City, the traditional car service that has its own smartphone application is subjected to a whole set of arcane rules and regulations, while the TNC’s are not. This is truly a distinction without a difference.

 The laws that apply to car services and their drivers require measures to safeguard the safety of the public who uses such services. Our elected officials must provide a public policy rationale that justifies having two sets of standards. One for car services and one for for TNCs. Politicians like to support TNC’s because the reference to innovation is sexy and these TNC’s are heavily funded and are able to pay for access to elected officials who make the laws. They also have access to high powered and costly lawyers who can go into court to defend their claims of being the creator of a “marketplace”, rather than what they actually are, which is just another provider of transportation, albeit a technologically savvy one. A passenger’s safety in one vehicle should not be any less valuable based on arbitrary differences.

 At the end of the day, the fundamental acts of either a TNC or a car service are essentially the same – a passenger entering a vehicle, either pre-arranged or hailed by a smartphone app, and then being transported from point A to point B.  There are no other differences between traditional car service and the new TNCs. The only difference is the manner in which transportation is arranged. Either the TNC’s must be subjected to the same regulation as the other car services in New York City or the traditional car services must be freed of the vice grip that the NYC Taxi and Limousine Commission has placed on them over the years and continues to do so despite their insistence that TNC’s should be treated differently.         To do otherwise would not only be unfair and irrational, but would jeopardize the safety of the riding public. 

FMLA-CHALLENGES TO MEDICAL CERTIFICATION

One basis for requesting leave under the Family and Medical Leave Act (FMLA) is the employee’s own “serious health condition” that renders them unable to perform the functions of the job.  When requesting leave under the Family and Medical Leave Act due to a “serious health condition”, the employee must tender to the employer a medical certification of the condition.

Some employers have found abuse of this procedure by employees, especially through the use of primary care physicians.  If the employer has “reason to doubt the validity of a medical certification”, the employer can request that the employee obtain a second medical opinion, at employer expense.  The employer can choose the health care provider rendering the second opinion, but can not regularly contract with, or use the services of that health care provider. 

The employer may not contact the employee’s health care provider, but the employer’s retained provider chosen to render the second opinion may make contact for limited purposes.  

If the second opinion conflicts with the opinion of the employee’s health care provider, a third provider jointly selected by the employer and employee will render an opinion that is final and binding.  The employer is responsible for the employee’s costs of the third opinion (travel, etc.).  While the above review is on-going, the employee shall have provisional FMLA leave.

If an employer decides not to challenge the medical opinion, or the result of the above procedure is confirmation of a serious medical condition supporting the basis for FMLA leave, an employer can request re-certification no more often than every thirty (30) days unless there is a significant change in circumstances, or the employer receives information to cast doubt on the certification.