Can an Uber or LYFT Driver File a Maryland Workers Compensation claim?
There are no Maryland appellate cases addressing the issue of whether an Uber or Lyft driver can file a Maryland workers compensation claim. The issue depends upon whether the Uber of Lyft driver is an employee or an independent contractor. If the Uber or Lyft driver is an employee, then the Uber or Lyft driver can file a Maryland workers compensation claim. If the Uber or Lyft driver is an independent contractor, then the Uber or Lyft driver can- not file a Maryland workers compensation claim. Since there are no appellate decisions on this issue, at this point the purpose of this article is to support the position that Uber or Lyft drivers are employees of either Uber or Lyft and therefore can file a Maryland workers compensation claim. Herein after any reference to Uber includes Lyft.
The Workers’ Compensation Act applies to “covered employers and employees.” Accordingly, the first inquiry in a workers’ compensation case is whether there exists an employment relationship that qualifies under the Act. See Sclosser v. Uninsured Employers Fund, 414 Md 195,994 A.2d 956 (2010) (stating that in a workers’ compensation case, “the first question to be resolved is whether [the claimant] is a `covered employee'”). Under the statute, there is a “presumption” that an individual is a covered employee. Specifically, § 9-202 provides that:
(a) An individual, including a minor, is presumed to be a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire.
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(c) To overcome the presumption of covered employment, an employer shall establish that the individual performing services is an independent contractor in accordance with the common law or is specifically exempted from covered employment under this subtitle.
Stated differently, a worker will be deemed a “covered employee” unless it is established that he or she is an “independent contractor” under the common law rules. Accordingly, we look to the common law “master” and “servant” relationship to determine whether an individual is a “covered employee.” See Sun Cab Co v Powell, 196 Md. 572,577,77 A.2d783,785 (1951) (“[T]he words `employer’ and `employee’ in the Workmen’s Compensation Act are synonymous with the words `master’ and `servant,’ and the rules for determining the existence of the relation of employer and employee under the Act are the same as the rules at common law for determining the relation of master and servant.”). In undertaking this analysis, we typically consider five factors: “(
The Maryland Appellate Courts have traditionally considered five criteria in determining whether or not an employer/employee relationship exists between two parties. These criteria, developed from the common law standard for determining the master/servant relationship, see Sun Cab,supra,196 MD.at 577,77 A.2d at 784-85 include (1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of the regular business of the employer, Mackall v. Zayre Corp., supra, 293 Md at 230,443 A.2d. at 103.Whitehead v. Safway Steel Products Inc. 304 Md. 67 497 A.2d 803(1985)
Of the five factors, the factor of control stands out as the most important. We have said, for example, that whether the employer “has the right to control and direct the employee in the performance of the work and in the manner in which the work is to be done” is the “decisive,” Mackall v. Zayre Corp., supra, 293 Md at 230,443 A.2d. at 103. or “controlling” test, L. & S. Construction, supra, 221 Md. At 57, 155 A. 2d at 656. We have also recognized, in speaking to the interrelationship of the factors, that “standing alone, none of these indicia, excepting (4) [the factor of control], seems controlling in the determination as to whether such a relationship exists.” (emphasis supplied). Whitehead v. Safway Steel Products Inc. 304 Md. 67 497 A.2d 803(1985) Injured Workers Insurance Fund 988 A.2d 1120, 190 Md. App. 438(2010)
We held in Whitehead v. Safway Steel Products Inc. 304 Md. 67 497 A.2d 803(1985). that the power to control the employee’s conduct is the most important factor. (stating that the employer’s “`right to control and direct the employee in the performance of the work and in the manner in which the work is to be done’ is the `decisive’ or `controlling’ test”). In other words, the one exercising control is the employer.
In this context, “control” is demonstrated in a number of ways. For example, in the Whitehead case, the respondent, Safway Steel Products, Inc. (“Safway”), contacted a temporary services agency to retain temporary workers to perform work in its facility. The agency assigned the petitioner, Whitehead, to perform work for Safway. Whitehead v. Safway Steel Products Inc. 304 Md. 67 497 A.2d 803(1985). While Whitehead was assigned to Safway’s facility, Safway instructed Whitehead on his tasks, could assign him to other duties, and “supervised and directed his actions and rate of work.” Whitehead v. Safway Steel Products Inc. 304 Md. 67 497 A.2d 803(1985). As a result of the level of control over Whitehead’s actions, we concluded that Safway was Whitehead’s employer. Whitehead v. Safway Steel Products Inc. 304 Md. 67 497 A.2d 803(1985).
In addition, the level of control necessary to be deemed an employer may be evidenced by the amount and type of employee rules and regulations that are imposed upon an individual. For example, in Mackall v. Zayre Corp., supra, 293 Md at 230,443 A.2d. at 103an employer subjected a worker to all the same rules and regulations that were applicable to a regular employee of the company, including the requirement to wear a “Zayre” logo smock. In that case, we held that the evidence clearly demonstrated that the company exercised adequate control over the worker for the worker to be considered an employee of the company. Mackall v. Zayre Corp., supra, 293 Md at 230,443 A.2d. at 103.
In Richard Elms v. Renewal by Anderson 96 A.3d 175, 439 Md. 381(2014), the Court held it is clear that Renewal “control[led] and direct[ed]” Elms “in the performance of the work and in the manner in which the work [was] to be done.” Whitehead v. Safway Steel Products Inc. 304 Md. 67 497 A.2d 803(1985). Renewal provided detailed training and instructions to Elms regarding how to complete the installations, including how to install the insulation and the types of shims, screws, caulking, and molding to use around the windows. In addition, although Renewal did not directly supervise Elms in the performance of the work, Renewal did engage in “spot checking” of Elms’s work. Renewal also required Elms to wear clothing bearing the “Renewal” logo and place a Renewal sign in the customer’s yard at job sites. Renewal expected Elms to adhere to the policies and instructions contained in the “Installation Job Expectations” manual. Renewal also required customers to rate Elms’s performance on report cards at the end of each installation. Further, Renewal provided Elms with a schedule of jobs that included the address of the sites, the names of the residents, and the time frame for each job. Elms had no control over the dates and times the jobs were scheduled. Therefore Elms, as a common law employee of Renewal, is entitled to recover workers’ compensation benefits under Renewal’s policy.
What if the driver executed a sole proprietor election form and or signed an independent contractor agreement; A worker is considered an independent contractor if he performs the work “`according to his own means and methods free from control of his employer in all details connected with the performance of the work except as to its product or result.'” On the other hand, even if the employer has only “some ability, should he care to exercise it, to tell the `employee’ what to do and how and when to do it,” a worker is considered an employee, rather than an independent contractor. Id. Additionally, the “parties’ subjective belief as to whether an employment relationship exists is not dispositive of the legal question of whether one is the employer of another, except as such belief indicates an assumption of control by one and the submission to control by the other.” Whitehead v. Safway Steel Products Inc. 304 Md. 67 497 A.2d 803(1985) (citation and internal quotation marks omitted).
There is nothing in the statute or case law that indicates that a worker can simply “elect” status as a sole proprietor and “opt out” of the workers’ compensation system if the worker is not a sole proprietor in the first instance. The reductio ad absurdum of OEDS’s interpretation of the statute is that any worker “employed” by any Maryland company could become a sole proprietor by virtue of signing a form, and thereby decline workers’ compensation coverage.
The Act, however, is remedial in nature, and intends to protect workers and provide coverage, regardless of whether they believe they want coverage when first hired. See Breitenbach v. N.B.Handy Co 366 Md 467, 784 A2d 569 (2001) (“Act is remedial in nature”) (The Act “as a whole should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.”) (Citations omitted); Weatherly v. Great Coastal express Co Inc. 164 Md App.354, 883A.2d 924 (2005) (purpose of the Act is to protect employees, employers, and public by maintaining a no-fault compensation system for employees) (citations omitted).
The sole proprietor status form can be considered as some evidence of sole proprietor status but is not dispositive. Whether an individual is a sole proprietor is a question depending on the specific circumstances of each case.
The bald assertion that a worker is an independent contractor by virtue of signing a form to that effect is not sufficient. We advise courts to avoid elevating form over substance in this respect, because whether workers are independent contractors or employees for workers’ compensation purposes is a fact specific inquiry that depends upon the circumstances of each case. Indeed, after careful consideration of the factors, a court could find that the emperor wears no clothes—that is, despite the belief and insistence of the parties, independent contractor status does not actually exist.
Courts must acknowledge that the general trend in Maryland has been to narrowly define “independent contractor” and to protect employee access to unemployment insurance, workers’ compensation insurance, and other benefits. For example, the Workplace Fraud Act, which became effective on October 1, 2009, makes it a violation to fail to properly classify workers as employees, and imposes penalties on those employers who knowingly misclassify their workers. LE § 9-402.1. Additionally, LE § 9-202(a) provides that an individual is presumed to be a covered employee for workers’ compensation purposes “while under the service of an employer under an express or implied contract of apprenticeship or hire.” (Emphasis added). And, “[t]o overcome the presumption of covered employment, an employer shall establish that the individual performing services is an independent contractor in accordance with the common law or is specifically exempted….” LE § 9-202(c).
Uber Technologies, Inc. (hereinafter “Uber”) is a corporation that holds proprietary interest in a smart phone accessible application (the “App”). This App is used, by Uber, to facilitate the connection between individuals who want transportation service (the “Riders”) with persons who have agreed with Uber to provide such shuttle service, labelled by Uber as partner-drivers (the “Drivers”). Uber markets its App to potential Drivers through online and billboard advertisements.
- Does Uber incentivize current Drivers, with referral fees, to recommend their family and friends associate with Uber as Drivers.
- Does Uber have what it terms an on-boarding process for new Drivers.
- Does each of the drivers go to an Uber office where they presented certain documents, as required by Uber, to establish their eligibility to drive in the State they will be driving? These documents included, the claimants’ driver’s license; vehicle registration; and their certification of automobile liability insurance policy.
- Does Uber subject drivers to background checks?
- At Uber’s office are the drivers shown a video that explains how the Uber App works; and depicts certain best practice guidelines—such as maintaining a clean vehicle; keeping water in the car for Riders; and, professional attire—that would be beneficial for the claimants to adopt?
- Does Uber impose a dress code?
- Does the video include the advisement, “this video has ESSENTIAL information for new Uber partners? You are responsible for understanding all information in the video before you accept your first trip.
- During this on-boarding process, are drivers given a map test, by Uber, concerning their knowledge of the area they will drive in.
- Does Uber make Uber signage available to drivers at its office, and does Uber mandate that drivers use said signs.
- Does Uber published its Code of Conduct, which was made available to the Drivers.
- Does this Code enunciate the minimum standards of conduct to which Uber expects its Riders and Drivers to adhere;
- Does this Code enunciate and advises Drivers that failure to maintain such standards risks deactivation of their access to its App. I
- Did Uber published a Handbook, referred to as its Welcome Packet, which was made available to the Drivers.
- Does the Handbook’s preamble read, “[t]this guide contains essential information for new Uber partners? Please read it carefully.”‘ This Welcome Packet lists contact information to Uber for Drivers who have questions related to the transportation service. During the period in issue, Uber maintained online support resources for Drivers, accessible at partnersnvuber.com and also designated a support staff to field Drivers’ questions.
- Does Uber collect the drivers e-mail address to disseminate various correspondence during their association with Uber; for example, updates to its App; and instructions regarding the same; reminders for expiring licenses; notices regarding high-volume areas; or other communication regarding Driver and/or Rider concerns.
- Does Uber contracted separately with Riders, to provide guaranteed, reliable ride service. Does Uber market itself as “Everyone’s Private Driver.”6 The Riders provide Uber with their credit card for charges associated with the transportation service. The Drivers are not party to the contracts between Uber and the Riders.
- Does Uber provide drivers with paid vacation, sick leave, health insurance coverage, or other fringe benefits.
- Are Uber drivers required to have a vehicle and smart phone to provide rides through the Uber App.
- Who assumes the cost of their leased or owned vehicles, fuel insurance and maintenance cost.
- Are the drivers required to have a vehicle that is on Uber’s list of vehicles it deemed acceptable. Uber categories its list of acceptable vehicles—as Uber X (the most basic acceptable vehicles); Uber XL; and, Uber Black (luxury vehicles). Uber’s App is programmed to apply varying base fares, depending upon the vehicle a Driver uses to provide transportation service.
- Does Uber provide the opportunity to drivers to lease their vehicles through an Uber affiliated third-party. Does Uber refer drivers to an affiliate who allows drivers to lease vehicles despite their poor credit. Will Uber deduct and forward lease payments, from their fares and/or other earnings, to the third-party lessor on behalf of drivers.
- Does Uber under an affiliated third-party, offer drivers a Fuel Card Program, where-under they would be issued credit cards to purchase fuel. Does Uber withhold payments from his fares for those credit card payments.
- Will Uber provide a smart phone that is compatible with its App version. Does Uber limit his use of that phone to accessing its App. Will Uber withhold payments from fares for costs associated with the smart phone.
- Does Uber does not impose a work schedule on the drivers.
- Are the drivers required to notify, or seek Uber’s approval to take time off from work? If not, does contract with driver require driver to utilize the App a least once per month to accept Uber App’s ride requests
- Does Uber require the driver to turn on the Uber App, and enter their username and password to indicate they were available to accept ride requests and to select, on the App, the category of vehicle they were driving (Uber X, Uber XL, Uber Black) in order to alert the App to consider that component in calculating the fare.
- Can the Driver select to provide transportation service only for certain riders?
- Can riders elect, through the App, to only ride with certain Drivers.
- How are drivers selected? When a rider requests service using their version of the Uber App, the Driver closest to that Rider is alerted of the ride request by a flashing indicator on the App. Uber allows that Driver fifteen seconds to accept the ride request. If that Driver fails to accept, Uber’s App alerts the next closest Driver of the ride.If the Driver accepts the ride request, Uber then notifies them of the Rider’s name, pick-up location, and gives an estimated time they should arrive for said pick-up. Concurrently, Uber notifies the Rider of the Driver’s license plate number, their photograph, and estimated time of arrival. Upon arrival for the pick-up Uber requires Drivers to wait ten minutes for the Rider. If the Drivers comply with that wait-time requirement, and the Rider does not appear, Uber self-determines if that Rider should be charged a wait fee which it would pass to the Driver (less its fee from the overall fare). If the Driver does not comply with the required wait-time Uber considers them ineligible for any wait charge. If a Rider cancels the ride request after a driver accepts it, Uber decides in its sole discretion, if a cancellation fee should be charged to the Rider.
- How does the driver determine the route? The Driver first learns of the Rider’s requested destination and drop-off address when that Rider enters their vehicle. The Uber App suggests a route. But, the Driver is expected to follow the route suggested by the Rider, if given. The Riders are charged any tolls as part of their overall fare. When the Driver reaches the Rider’s required destination, they indicate on the App that the ride request is completed.
- How is the rate of the trip determined? The Uber App’s algorithm then calculates the fare based on current market factors, and displays said fare for the ride. Do drivers have any input with respect to the amount of the fare charged for the transportation service they provided. Are the drivers allowed to collect cash for the fares under the Uber App. Uber instructed drivers that solicitation, or acceptance of gratuities is prohibited, unless the Rider insists. The fare displayed on the Uber App is charged to the Rider’s credit card, by Uber. Uber then processed the Riders’ bills.
- Are drivers after completion of the trip and payment by the Rider, allowed to challenge the fare charged. Does Uber unilaterally review the disputed fares, and decide if an adjustment is warranted.
- Does Uber during the time period that Drivers are logged-in to the App, have the capacity to collect and review data regarding the Drivers’ activities. This may include a reading of your speed and braking patters that are available thru the car module.
- Does Uber’s “Driver Deactivation Policy”9 place Drivers on notice of the types of conduct that can result in Uber’s suspension or deactivation of their access to its App. Does Uber’s policy read that “our goal at Uber is transportation as reliable as running water everywhere, and for everyone. The policy alerts Drivers that Uber might deactivate access because of low Rider ratings, high cancellation rates, low acceptance rates. The policy advises, further, that “we will alert you over time if your rating is approaching this limit, and you’ll also get information about quality improvement courses that may help you improve. If you’re average rating still falls below this minimum after multiple notifications, you will be deactivated. You may be reactivated on the platform after you provide proof of the steps you’ve taken to improve. For example, by taking one of these quality improvement courses. At the end of each ride, the Uber App prompts riders to rate the Driver’s performance and their ride experience, using Uber’s five-star rating system. Uber notified the claimants that there is a minimum star rating they must maintain for continued use of the App. That minimum rating of at least a 4.7 is set, and subject to change, exclusively by Uber. Uber deems star-ratings below 4.3 unacceptable. Uber reviews the Driver’s star-rating, and includes an anonymous sampling of Riders’ comments on the Driver’s weekly Pay Statements. Uber adds its own characterization to the Driver’s rating, commenting for example on AK’s and JS’ Pay Statements, “nice work, your driver rating was above average.”14 When a Driver’s star rating falls below Uber’s minimum acceptable rating, Uber notifies said Driver by e-mail or other means, that their rating has caused concern and places them at risk of deactivation. If that Driver’s maintains a persistent low-rating Uber will deactivate their access to its App. Uber deactivated HK’s access to its App based on persistent low Rider ratings. HK contacted Uber to discuss the possible reasons for his low ratings, and to seek reactivation. At its office, Uber displays flyers for Quality Improvement Courses, provided by a third-party.
- Does Uber analyze the Driver’s acceptance and cancellation of ride requests rates. Does Uber advise drivers that, once logged-in to the App, they are expected to accept ninety percent of ride requests received. Uber takes corrective action if a Driver fails to meet that acceptance standard, by temporarily deactivating their access to the App. If the claimants failed to accept two consecutive ride requests Uber deactivated their App access for ten-minute periods. A Driver cancellation occurs where a Driver cancels a trip requests, after accepting the same. Uber determines the threshold for acceptable cancellation rates. Uber sends that Driver message notification that they were logged-out with the explanation that they, “rejected too many riders” and further comment about their acceptance history.’
- Does the Deactivation Policy also place Drivers on notice that their access to its App might be deactivated if they allow others to use their account, or accept a trip request using an unapproved vehicle?
- Are Uber Drivers paid on a per trip basis.
- Are Uber drivers paid with weekly direct deposit service, and are they issued weekly Pay Statements. The Pay Statements reported the fares collected by claimants; less Uber’s fee from each ride; and, any withholdings, if applicable (for example, withholdings by Uber for third-party vehicle lease payments, or fuel card usage for payment to such vendors on behalf of claimants). Uber unilaterally set its fee deducted from the Driver’s fare—that fare varied from twenty to thirty percent per fare—and depended in part, on the type of vehicle the Drivers used in providing the transportation service. Uber, acting in its sole discretion, increased or decreased the base fares charged based on its market analysis. In 2016 Uber unilaterally lowered its fares.
- Does Uber offer the Driver additional means of increasing their fare earnings through incentives or promotions. Drivers were not obliged to accept such incentives. At times Uber imposed surge pricing; thereby, increasing fares in certain geographic locations based on market demands. Drivers were alerted of the surge pricing by flashing sections of the map on the App, and they elected if they would take advantage of the surge pricing.
- Does Uber offer promotions like a promotion that promised driver he would earn $1,500.00 if he drove 1,500 hours in specified areas.
- Does Uber also designated certain Riders and Drivers as VIP. Those VIP Drivers, typically have high Rider ratings and low cancellations rates, are eligible for longer trips that realize higher fares. VIP Drivers are also eligible for certain Uber gift giveaways.
- Does Uber weekly Pay Statements and summaries report how long the drivers were online on the App on particular dates, and addresses their acceptance rate during those periods. Does the payment statement also detail if driver met any accepted promotion requirements, and if not, why?
- Does the Statement explain why Uber might have made deductions to the claimant’s fare disbursement; for example, for adverse Rider reports.
- After drivers report any errors to their Pay Statements to Uber, for its review and correction, Uber reviews the issue to determine if a trip payment was missing; if the Rider should be charged; and if drivers fare disbursement should be adjusted.
- Does Uber issue drivers’ IRS Form 1099 to report driver fare-based income to the Internal Revenue Service, and Form 1099 Miscellaneous to report non-fare base earnings, such as incentive and promotion payments?
- Does Uber’s App includes a feature that allows Drivers to request reimbursement from Uber for damages caused to their vehicle by Riders. Drivers submit photographic evidence of the damage, evidence of receipts for repair or clean-up cost attributable to the Rider, to Uber through its App. Uber reviews such requests for repair and/or reimbursement, and in its discretion, determines if the Rider should be charged and the monies recovered passed to the Driver; if Uber will cover the cost; or, if the damage does not meet its threshold for repair or reimbursement.
- Does Uber occasionally assume the cost for certain traffic violations incurred by the Drivers?
- Do Riders report their complaints against Drivers to Uber. The Uber App includes a feature that allows Riders to report complaints against Drivers. Does Uber counsel drivers regarding customer complaints?
- Does Uber send admonitions to its drivers and give further feedback if they receive similar complaints in the future of this nature it could result in permanent deactivation of your account. Uber is aware, and does not prohibit, Drivers from also procuring rides from its competitors. Claimants JH and JS also accepted ride requests from Uber’s competitors while simultaneously using the Uber App.
- Does Uber allow Drivers to hire others to operate their vehicles.
- Does Uber allow Drivers to drive for other companies.
In determining if an employee-employer relationship exist, the “pertinent inquiry is whether the purported employer retained control over the results produced or the means used to produce those results, with control over the latter being more important.” The analysis of whether an employment relationship exist for purposes of unemployment insurance benefits is not dependent on any one fact, but that such relationship may be found where the putative employer exerts control over important aspects of the services provided even where certain evidence would support a contrary conclusion. It is uncontested that claimants and Uber entered into certain contracts that designated claimants as independent contractors. These contracts, drafted solely by Uber, were adhesion contracts, the nature of which did not allow claimants to negotiate the terms of said agreements. The contractual designation of claimants as independent contracts, standing alone, does not end the inquiry. I note that Uber correctly asserts that claimants AK and JS identified themselves as independent contractors to the Department of Labor in pre-hearing questionnaires. But, the claimants’ laymen designation of their employment status is not controlling. It remains necessary to consider the actual interactions and continuing relationship between claimants and Uber throughout their association. Certainly, it is significant that as the parties agree, claimants set their own work schedule; selected their work areas; were not obliged by Uber to report their absences or other leaves; and, were not provide fringe benefits by Uber—all factors indicative of an independent contractor status.’
The credible evidence also establishes; however, that during the time periods that claimants provided transportation service under its App, that Uber exercised sufficient supervision and control over substantial aspects of their work as Drivers. Uber’s assertion that it is not a transportation company; but instead that, it is only a technology company that generates leads for Drives is a non sequiter. Uber describes itself as a transportation company—advertising itself in 2014 as “Everyone’s Private Driver”, and more recently in its 2016 internal publication stating, “our goal at Uber is transportation as reliable as running water everywhere, and for everyone.”‘ Uber is a transportation company. It is a sine qua non therefore, that as a transportation company, claimants’ role as Drivers was a crucial aspect of Uber’s operation. Uber subjects the drivers to background checks during its on-boarding process for new Drivers. Uber also showed the claimants a video that depicted how its App worked, and suggested best practices the Drivers should adopt for success. Additionally, Uber tests driver’s knowledge of the city before they were allowed access to its App. Uber also informed the claimants of its online and other support services, delegated to field Drivers’ inquiries.
Uber did not employ an arms’ length approach to the claimants as would typify an independent contractor arrangement. Uber remained involved with the means by which claimants provided transportation services for its Riders. Claimants acknowledged they were responsible for their own vehicles and associated costs. It is notable that the claimants were restricted to use vehicles deemed acceptable by Uber—requiring compliance with a list that exceeded the governing TLC regulation concerning acceptable for-hire vehicles. Additionally, Uber dos not dispute that when drivers lack proper credit to secure their own vehicles, Uber not only refers them to their third-party affiliates to lease vehicles without credit; but also, Uber takes the additional step of withholding monies from these drivers’ fares and making lease payments on their behalf. Uber even intervenes when drivers are delinquent in his lease payments to the third-party lessor, to arrange an alternate payment plan on behalf of drivers to address his arrears.
The drivers indicated they are available to accept ride requests when they signed-into the App with their Uber designated usernames. Uber agrees that when the claimants accepted a ride request they were informed only of the Rider’s name and pick-up location, and that, the drivers first learned of the requested drop-off location after picking-up the Rider. This belies Uber’s assertion that it serves only as a lead generator for rides for the Drivers. It would seem reasonable to assume that an independent Driver would be afforded information about the length of the requested trip, and drop-off site to autonomously decide if they should accept that lead. Drivers are expected to allow the Riders a ten-minute wait period before leaving the pick-up site; and that, if Riders failed to appear it was within Uber’s sole discretion to determine if that Rider be charged a wait fee. If a Rider cancels their trip after a Driver had accepted the ride request it was solely within Uber’s discretion if the Rider should be charged a cancellation fee. Drivers have no input in determining the fare charged for the transportation services they provided; but instead, that fare is determined solely by Uber’s App algorithm. Uber agrees that drivers were advised not to solicit or accept tips, unless the Riders insists; and that, the Drivers were not allowed to accept cash for the rides under its App. Riders’ fares were charged to the credit cards they previously provided to Uber, and their bill processed by Uber, and fares passed to the Drivers.
Uber does monitor the drivers. Uber takes steps to modify the drivers’ behavior, as typical in an employer-employee relationship. Uber published, and made available to drivers, its Code of Conduct that placed them on notice of what constituted acceptable behavior and what consequences might attach; for example, deactivation, if they engaged in unacceptable conduct. In 2016 Uber also published its Deactivation Policy, applicable to certain named claimants that notified them of the types of conduct that might result in deactivation from its App and suggested means to avoid such consequences. Uber advises drivers that they were expected to accept ninety percent of all ride requests, and that failure to meet such acceptance threshold would result in deactivation. Drivers who failed to accept two consecutive ride requests were logged-out of the App, by Uber, for ten-minute periods. Drivers are deactivated for what Uber deems are excessive cancellations after they had accepted ride requests. Uber uses its Riders’ responses on its five-star rating system—which riders were prompted to complete at the end of each trip—to monitor and evaluate a Driver’s performance in providing ride service; and, to determine if that Driver’s rating were unacceptable such that he should be deactivated from is App. Uber unilaterally sets, and modifies the acceptable star rating based on its market analysis.
Uber provides drivers with weekly direct deposit services, and issued drivers weekly Pay Statements. These weekly Pay Statements, prepared by Uber, report the fares claimant earned based on completed rides, and deductions from those fares for Uber’s fee; and any withholdings (for Uber’s payments to third-party vendors such as the leasing company, on behalf of the drivers). Uber unilaterally set, and modified the base rates charged to the Riders; and in doing so, affected the claimants’ earning potential. It is undisputed that Uber determined the amount of its fee which varied from twenty to thirty percent based on the type of vehicle claimant used to provide the transportation service.
Drivers do not negotiate the terms of Uber’s fee. Uber offers Drivers additional means to increase their earnings through various optional incentives and promotions.
Uber determines if Drivers should be compensated for damages caused to their vehicles by Uber Riders. Uber also agrees that it responds to Riders complaints against drivers. In response to a Rider’s complaint Uber can resolve the matter by reducing the fare collected for that trip; which tangentially reduced the fare/earnings a driver collects from the transportation service he provided. Uber in further response to that Rider’s complaint, can counsel a driver.
Drivers can while providing ride requests under Uber’s App, may also accept rides from Uber’s competitors. The lack of any restrictive covenant here is not necessarily dispositive. Uber agrees that it has thousands of Drivers, and that if one Driver refuses a ride request, the request is relayed to the next closest Driver. Indeed, Uber testified that if a Driver does not accept a ride request within fifteen seconds, that request is relayed to a different Driver. As such, the Uber Rider is not left without ride service because a Driver did not accept the request.
A review of the record shows that each driver is subjected to substantial supervision and control by Uber. Based on these aforementioned factors, while there are some indicia of claimant’s independence, the overriding evidence establishes that Uber exercises sufficient supervision, direction, and control over key aspects of the services rendered by drivers such that an employer-employee relationship was created. Therefore, the Uber drivers, are/were employees of the employer, Uber.