Uber Sued for Allegedly Violating Massachusetts Labor Law

From the Boston Globe:

[A suit] filed Thursday in Suffolk County Superior Court in Boston by Shannon Liss-Riordan…accuses Uber of misclassifying its drivers as independent contractors to avoid paying them the same as employees with benefits.

The case also charges that Uber does not give drivers the total proceeds they receive from gratuities and "retains a portion of the gratuity for itself." That alleged conduct violates the Massachusetts Tips Law, said Liss-Riordan….

Liss-Riordan has filed a similar labor case against Uber in US District Court in California, where the company is based. The federal judge presiding in that case ordered Uber in May to allow its drivers to opt out of an arbitration clause in their contract with the company. That clause prevents drivers from joining Liss-Riordan's class action lawsuit.

While the fact that Uber drivers generally work when and as they will without shifts assigned by the company, and receive not a set salary but merely portions of what they directly earn via using the company's app, might lead to a common-sense decision that they are not "employees" but independent contractors using and paying for a service that Uber supplies (the app), apparently Massachusetts has a more curious definition:

Massachusetts has some of the most stringent employment laws in the country. Under state law, for workers not to be considered as employees they must do work for a company that is "outside the usual course of business of the employer."

"All we have to prove is that Uber is a car service and that the people who drive their cars are employees," said Liss-Riordan. "Everyone who does the work should be an employee."

While noting they don't intend to comment specifically on ongoing litigation, an Uber spokesperson this morning said via email that in general the company "will vigorously defend the rights of riders to enjoy competition and choice, and for drivers to build their own small business."

Reason on Uber.

Comments

[Notorious G.K.C.]

"employees with benefits"

Kinky!

[Brandon]

"All we have to prove is that Uber is a car service and that the people who drive their cars are employees," said Liss-Riordan. "Everyone who does the work should be an employee."

So she doesn't think she has to prove the contentions in her own suit? Is this woman anything other than a gold-digging parasite?

[anon]

You must be new here.

[Brandon]

Has she been mentioned here before? I've never heard of her.

[anon]

Oh, sorry, I was referring more to the general question of "Is she anything other than a gold digging parasite?" To which the obvious reply is No, and there are millions more just like her.

[The Tone Police]

Anyone who blithely says proving someone is an employee is "easy" is a fucking moron.

[R C Dean]

Well, yeah, all they have to prove is that the drivers are employees. Duh.

Unfortunately, these drivers don't even come close to meeting the test for employees.

Good luck with that, hyphenated-name person!

[Warty]

"We've got to save our phoney-baloney jobs, gentlemen!"

[Episiarch]

It's the rent-seekers' world. We just live in it.

[Fr?ulein Nikki]

Would it have killed you to turn that into a joke about renting it? Jesus.

[Episiarch]

The only thing I rent is your mom, nicole. By the hour.

[jesse.in.mb]

What do you do with the other 58 minutes and 35 seconds of the time?

[Fr?ulein Nikki]

She feeds him meatballs.

[Episiarch]

I have her make me a turkey pot pie and iron my shit. But that's only on Tuesdays and Thursdays. Your mom handles the rest of the week.

[jesse.in.mb]

Your mom handles the rest of the week.

My mom stopped cooking in the late '90s and hasn't ironed since I've known her. Congrats on finding someone to provide sub-par services.

[Dweebston]

That's really not a problem unless she lives within the state of Massachusetts and accepts compensation for the services she does provide.

[JW]

Do you really want to know?

It's like a Ken Russel and David Lynch chimera of grotesque horror.

[kinnath]

Massachusetts has some of the most stringent employment laws in the country

Clowns to the left of me, jokers to the right.

[Fr?ulein Nikki]

Isn't "the usual course of business of the employer" something more like "making a mobile app that connects passengers with drivers"?

[Invisible Finger]

I think they process payments, too.

But you are correct, they are not a car service. Just like craigslist isn't a landlord. I hope she winds up paying all of Uber's lawyer fees.

[Adam330]

If Uber is a car service, then hotels.com is a hotel and expedia is an airline.

[bostonaod]

"All we have to prove is that Uber is a car service and that the people who drive their cars are employees," said Liss-Riordan. "Everyone who does the work should be an employee."

Uber is a car scheduling service, get fucked.

I'm also not buying the gratuities complaint - there's no way within the app to set a tip, so how would Uber know if I slipped the driver a fin?

[NoVAHockey]

I asked a UberX driver about this yesterday. In DC.
He basically wants to drive when he wants but thought it inevitable that gov would fuck up a good thing for him.

[NoVAHockey]

not about this case specifically, obviously.

[Grand Moff Serious Man]

Yeah, my dad does it too. He hears the drivers in California want to join the Teamsters, which would prompt him to stop since he's been represented by the Teamsters before and thinks they are a useless band of parasites.

[Invisible Finger]

Then Uber can just put a "teamster" checkbox in their app. Those who want union drivers could then specifically request one.

[NoVAHockey]

why would i want my driver to be lazy and surly?

[UnCivilServant]

It would route the business to those drivers who are not, because no one would intentionally check that box (at least not more than once)

[Rasilio]

Cause itud be a shame if anything were ta happen to that nice house/business after yas was picked up/dropped off

[Episiarch]

"We know where you live!"

[Jordan]

Common sense has no place in Massachusetts or California, and especially not in the court system.

[JW]

"All we have to prove is that Uber is a car service and that the people who drive their cars are employees," said Liss-Riordan. "Everyone who does the work should be an employee."

I see that the taxi cartels have found their patsy to do their dirty work.

[NewWorldDan]

It's entirely possible that she's a labor union patsy instead.

[JW]

Never rule out a conspiracy of parasites.

[Almanian!]

It's patsies all the way down

[Ted S.]

I'd rather it be pasties all the way down.

[anon]

"All we have to prove is that Uber is a car service and that the people who drive their cars are employees," said Liss-Riordan. "Everyone who does the work should be an employee."

Wow. I cannot believe this woman exists.

How does anyone not know how private contractors work?

[The Tone Police]

Labor attorneys like to pretend that private contractors don't exist. But I bet you dollar-to-doughnuts she has an intern who is paid as a contractor.

[Fr?ulein Nikki]

Getting people coffee isn't part of the usual course of business of the employer, though.

[Grand Moff Serious Man]

Related to what I said above: Teamsters and union recruiters urging LA Uber drivers to strike

Inspired by their counterparts in Seattle, Uber drivers in Los Angeles are organizing to demand greater transparency and more cost-sharing from the company?efforts they say could ultimately escalate to a strike. "It's a wonderful technology, and something that is certainly here to stay," says Joseph DeWolf, an Uber driver who is leading the charge. The problem, he says, is Uber's culture: "The rules don't apply to them."

DeWolf says he and his fellow drivers were spurred by concerns over the company's refusal to shoulder responsibility for insuring drivers; capricious-seeming policy changes, such as a recent announcement that pre-2010 cars will be phased out for Uber Black or Uber SUV services; and opaque disciplinary procedures.

DeWolf has the backing of the Teamsters, who have also been involved in organizing drivers, both app-based and not, in Seattle and taxi drivers in Washington, D.C., where disgruntled cabbies staged a moving caravan protest Wednesday morning against a city council ordinance allowing Uber and other companies, such as Lyft and Sidecar, to operate.

Not sure how a strike would help since other drivers would presumably just replace them.

[Episiarch]

That's what union violence is for! Death to scabs!

[MJGreen]

I hope they're not too serious about it. Escalation would inevitably entail calling up new Uber drivers and "dealing" with them.

[JW]

How is that Uber can't send them a nice letter, thanking them for their time as a driver and telling them to fuck off?

[Cytotoxic]

Fight on.

[ChrisO]

Liss-Riordan is a lawyer who specializes in representing employees in wage/hour class-action cases. The Globe article doesn't make it clear if she's the plaintiff in the suit or whether she's representing someone else. Slipshod reporting.

Either way, she's not bringing this case out of the goodness of her heart. I wonder who's paying her to do it?

http://www.llrlaw.com/attorneys/shannon.htm

[Invisible Finger]

Slipshod reporting.

What do you expect from the Boston Red Sox. They traded for Jake Peavy fer crissakes.

[Knutsack]

I know she's a woman, but that is still one punchable face.

[Mt low rider]

That face would look sweet on a pinata.

[Paul.]

Percentage of time Uber and Lyft's officers are spending on legal issues vs running the company: [ ]

Please fill out and get back to me.

What a country!

[Episiarch]

The ratio of parasites to non-parasites has gotten...worrisome. Overwhelming the host is a real possibility.

[wareagle]

overwhelming the host is the goal.

[The Heresiarch]

So, yes, this is a problem for Uber. State law independent contractor rules differ from IRS laws, and in California one (major) test is whether or not a person is a production worker. That is, is the person engaging in the business or activity that generates revenue for the company? If yes, that is a major factor in determining worker (as opposed to independent contractor) status. So a painter hired by Uber to paint their headquarters would not be a worker; an IT person working on their computer system - probably not; but a driver? Very big risk of yes.

As for the burden of proof, I believe that a company has to put forward the independent contractor status as an affirmative defense. As with all affirmative defenses, all elements have to be proven by the party offering it. So the burden of proof that they are workers will fall on Uber. This is how overtime cases work (that an employee is exempt must be proven by the Defendant; all workers are assumed to be entitled to overtime otherwise - that's why overtime class action cases are so profitable).

[R C Dean]

Here's the checklist for CA:

http://www.edd.ca.gov/pdf_pub_ctr/de38.pdf

The only one that might cause any angst is number 3:

Is the work being performed part of your regular business?

However, in Uber's case this requires that Uber be treated as something other than a software and payment processing business.

[The Heresiarch]

The problem for Uber is that this is a very important factor. I've litigated several of these and courts do take a look at that aspect probably the most. And as to what Uber's business is, if you were to ask people what Uber is they probably would say, "It's the company we use to get rides" rather than "It's a software and payment processing business." I know Uber will characterize it as such - it just may not fly when the cert. motion is decided.

[Libertymike]

The relevant statute in Massachusetts is M.G.L. c. 149 section 148B. The statute PRESUMES that one providing a service for another is an employee.

A couple of years ago, I represented a limousine company which treated its drivers as independent contractors. The company and its president were sued by a class action / rent seeking law firm.

I told the owner / president that both he and the company were going to lose. He needed time to move some assets and so I was charged with delaying matters.

Part of the delay was to plead that the statute violated the contractual liberty of both the drivers (most of whom did not want to be part of the class) and the company.

I penned an awesome memorandum in support of my clients' opposition to the plaintiff's motion for summary judgment.

The judge who decided the motion was none other than Gov. Deval "mini-me" Patrick's recent nominee to fill the vacancy on Massachusett's high court, the Supreme Judicial Court, one Geraldine Hines.

Yes, we lost.

[The Heresiarch]

Plaintiff winning on SMJ, huh? Sucks, sorry. It's rare that plaintiffs file one, much less win, but it's not unheard of. I'm planning on filing an SMJ on one of my plaintiff wage and hour class actions. It's got a shot, considering I live in the People's Republic of Kalifornia.

[Almanian!]

And this is why we don't do bidness in (in order):

- Cali
- New Nawk
- and we can now add Assholechussetts.

How nice.

[Robert]

Then are all clearinghouses potentially employers in states that have such laws?