Also the drivers aren't supplying a service "outside the business's normal variety." They're supplying the core Uber service.

EDIT: They might be able to redefine themselves as purely a software company for the drivers to remain contractors.

Well, I suppose Uber would argue that their service isn't the providing if rides, but rather, the matchmaking of independent ride providers to prospective customers, and facilitation of payment. (Not that we should believe them.)

That would be difficult to reconcile with a self-driving car project (unless they didn't own or operate those cars themselves).

I think a distributed ownership model is actually the most likely model for self-driving cars given the capital investment required.

So are property owners employees of AirBnB?

Property owners set their own rates and don't get detailed directions from Airbnb for each stay.

They're just providing a free GPS, it's not a core part of the business. Even the rates thing isn't particularly compelling, the drivers can decide which sort of jobs to take, normal, high, etc. it's not like they have set shift patterns or anything.

I find the rates thing quite compelling. Uber/Lyft are dictating the prices. Drivers have no say in them. And, while you can technically decline rides, the Uber/Lyft algorithms will punish you for doing so.

What does it matter if Uber punishes drivers who decline rides?

If I’m an independent developer, and I frequently refuse to accept your contract work, you might “punish” me by not offering me as much work in the future. That doesn’t change the fact that I always have the choice to accept offered work or not.

"What does it matter if Uber punishes drivers who decline rides?"

It means that the driver is unable to choose their work, which was one of the key differences between a contractor and employee.

It's no different to how every other freelance employing business works.

If I run an advertising agency and I've got 4 freelance film makers I regularly use and one of them stops taking my calls or almost always says no, I'll eventually stop calling him and add someone else to my regulars. It's just business, no point me wasting my time calling him.

I think there's a load of companies abusing the gig economy at the moment, but Uber aren't the worst and definitely not for things like they provide a GPS or set the rate, it's all the delivery companies and the gas-servicing people who all have to wear uniforms and work full days.

"If I run an advertising agency and I've got 4 freelance film makers I regularly use and one of them stops taking my calls or almost always says no, I'll eventually stop calling him and add someone else to my regulars. It's just business, no point me wasting my time calling him."

But that's different than the situation with Uber/Lyft. In your story, the person has the ability to find new clients. If you're an Uber/Lyft driver, you can't exactly "go it alone", so to speak. You're kinda stuck with Uber/Lyft.

"I think there's a load of companies abusing the gig economy at the moment, but Uber aren't the worst and definitely not for things like they provide a GPS or set the rate, it's all the delivery companies and the gas-servicing people who all have to wear uniforms and work full days."

I disagree; I feel setting the price unilaterally is a huge part of why they're abusing things. By doing that, they are kind of dictating the wages that the driver can earn. If Uber/Lyft decide to change the per mile rate, there's nothing the driver can do. By contrast, something like Angie's List allows the different providers to set their own rates.

I think they would have to end up far more like ebay where Uber gets a request for a ride, puts that up for a period of "bid" by the drivers who will bid a price for that ride, and then gives that list with sorting options back to the requester to pick from.

Of course, I imagine that sort of process would make it much harder to actually get a ride and make it far less interesting to the users.

It says "... or workplace". Uber drivers don't work in Uber's buildings.

This is not quite an exclusive or.

The service is not outside of business standard variety. Other cab companies have client driven matchmaking systems too now... They also employ office workers. The workplace for a cab driver is his car.

Therefore, what Uber does would make them a cab company that abuses contractors instead of employing employees.

However, the key point here is the test A. If Uber is specifically telling the drivers to pick up specific fares or otherwise forcing them to pick up fares beyond the number and/or time, they are actually employees not contractors. Fudging with scoring system to fire those who do not follow such orders indirectly could be construed as such as well.

Considering the actual text posted by jaggederest in another comment, it does seem to be an exclusive or:

"the services provided were either outside the usual course of business or performed outside of all the places of business of the enterprise"

Regarding other cab companies, most cab drivers have been traditionally classified as contractors. The idea that Uber introduced this practice is propaganda.

That isn't an exclusive or; the English language lets that be interpreted as either an xor or or, and the reasoning of the context shows it to be an or.

To iterate; the statement sets out two conditions, either of which are sufficient independent of the other, and claims that each of a number of services met one of those conditions.

Thanks, I'm not a native speaker, and I thought either/or was a xor.

I think there is valid confusion to be had in interpreting this statement.

Usually, when a statement of "choose either x or y" is made, then the only valid options are exclusively x or exclusively y (None and Both are not valid).

Though, when the statement of "if either x or y then do action" is made, then the action is done with any of three valid options: x, y, or x and y (only None is not valid).

To change the second statement to mean the first, you could say "if only x or only y then do action." The "only" cancel Both as being an option.

Native speaker here.

Either-or does imply exclusive-or, but it is often used less formally, so you will sometimes see it made explicit as "either x or y, but not both."

> Fudging with scoring system to fire those who do not follow such orders indirectly could be construed as such as well.

Surely companies must be allowed some method to ensure the quality of work they desire.

No one's saying they can't be allowed such a method. But it may be the case that for persistent business relationships doing so may mean an employee/employer relationship rather than the relationship between a business and an independent contractor.

I believe the distinction lies in describing the final work product vs. describing means and methods. If you have an outsourcing contract with an independent contractor, you're allowed to specify (usually via specifications that are appended to the contract) performance objectives and quality of the work, and what the final work-product looks like. If you stray too far or too often over into specifying the means and methods by which they're supposed to achieve those results, then you're treating the contractors like employees, which actually come to think of it, is already sort of a no-no under most current contracting arrangements I'm aware of. Although there are always gray areas... for example what if you're turning over source code at the end of a project? Then your writing of the code is both a method and a final work-product. Some attorney needs to earn their keep and make sure everything is all laid out nice and kosher in the contract so things don't get murky.

A scoring system of the resulting work is fine. A scoring system that effectively encodes how they did the work is problematic because it means they company is now dictating how work be done, which is an employee relationship.

E.g. It's the difference between: a scoring system that uses a coding style standard and unit tests on the resulting code to build a score; and a scoring system that uses hours logged into the computer manipulating the IDE and lines of code written per hour to build a score (the contractor could use that as a way to score himself and for billing, but not the company).

Please read the decision re B (starting at page 64 of http://src.bna.com/ypI)—if I'm not misreading it, it has nothing to do with work location and the article is confused. But I am not a lawyer and would appreciate your reading if it :)

My guess is that B comes down firmly on the side of Uber/Lyft drivers being employees, unless they can convince a judge that their business is merely "providing an app that lets people find car companies" and not "giving people rides."

Yes, "providing an app that lets people find independent contractors who give people rides" is what Uber/Lyft will argue.

And there are a host of companies that offer similar services. They derive their value from being able to facilitate business interactions.

Angie's List is another example, and I can totally see similar businesses passing the "B" part of the test, because although they may implement some quality-control measures, such as requiring the independent contractors to abide by certain terms or meet certain standards, they are pretty hands-off in terms of HOW the recommended plumber fixes the clogged drain, or HOW the recommended carpet cleaner schedules its appointments.

But with Uber/Lyft, the HOW is much more like an employee relationship.

The problem with that argument is Uber will kick people off the platform. They manage the relationship between customers and drivers instead of simply facilitating communication and payment.

By comparison most point of sale (POS) venders just provide hardware and software don't involve themselves in the actual business enough though they may provide phone apps etc. Marketplaces like App stores or Amazon get more involved, but they don't dictate prices.

On Angie's List, the contractor sets the price, and I don't believe they're punished (sent to the bottom of the rankings) if they don't choose to accept a client. This is not the case with Uber/Lyft, where Uber/Lyft sets a price the driver has no say in whatsoever, and if you turn down rides, you get sent to the bottom of the queue.

Angie's List seems like ... a list. I have the option of picking which independent contractor on the list I want to hire. I pay them, I don't have my credit card number on file with Angie's List. And in common speech I will "get an Uber" or "get a Lyft" to go somewhere, but I won't "get an Angie's List" (or even any slightly similar phrasing) to do some work, I'll "find someone from Angie's List." I definitely have never said that I'll "find a car service on Uber".

So yeah, I agree that Angie's List is clear of B and Uber/Lyft much less obviously so.

Having card on file is not a big difference - a lot of sites like Amazon or Yelp record cards, that doesn't mean Amazon sellers or Yelp business are employees on Amazon and Yelp. Ability to choose specific service provider is much more of a difference. But Uber could easily fix it (though it probably would raise some discrimination concerns, for example).

Being an app company and not a company that gives rides is a strange rationale for investing in self-driving cars. Will the robots be considered independent actors too?

I agree with your assessment (you failed to mention leeway with which rides to take, but maybe it doesn't matter) -- Uber/Lyft would definitely not want to lose control on how their drivers perform their services since it's directly counter to part of their value proposition/brand.

I pessimistically assume, however, is that assuming the A/B fight is a lost battle for gig economy compnaies, the next step is to limit these employees to being part-time with some kind of <20 hours per week or something rule.

Background: I am a spitballing layman

> I pessimistically assume, however, is that assuming the A/B fight is a lost battle for gig economy companies, the next step is to limit these employees to being part-time with some kind of <20 hours per week or something rule.

How does 20 hrs/week factor in here? I didn't see a reference in the Bloomberg article. Though this is actually a good point — if time spent working isn't a factor, then someone who works for Uber, Lyft, Grubhub, and Google Express could end up as en employee of all of these companies. That seems like kind of a weird result.

I mentioned that since hours worked is normally a big distinction between a "full time" employee and "part time" employee for traditional roles, which have different employment costs -- It's not mentioned in the article

Part-time workers don't usually get benefits, which is the main reason Uber is terrified they'll be classified as employees.

Walmart used the part-time distinction to great effect to increase their profits and decrease workers wages. Much has been written about this.

Not a lawyer, but I would think they could require drivers follow a reasonably direct route but not require the specific route offered by the driver’s app.

And in general quality issues can be handled by ratings. If a driver takes bad routes or has a dirty car they’re going to get complaints / bad ratings.

I’d be surprised if they couldn’t offer drivers “suggestions” on how to receive good ratings.

I think that Uber/Lyft could pretty easily argue A. The driver has control over the quality/cleanliness of the car, amount of conversation, extra perks provided, and timeliness of arrival.

While I agree element B would be difficult for them to overcome I would give it around 50/50 that they can successfully argue the drivers are not a part of the normal workplace.

Given that the job is "giving rides to other people in your car," how would B not apply?

The normal Uber workplace is the office where the app is developed, drivers never visit so they are not part of the normal work place. That argument or some other one that is equally dumb on it's face but might work in a court of law

I completely disagree. The normal Uber workplace for developers is the office. How many of the drivers do you think have ever set foot in that office?

To put it another way, if you're a plumber who is working for a plumbing company, are you doing your plumbing in the office?

> That argument or some other one that is equally dumb on it's face but might work in a court of law

> equally dumb

I was defending why I think there is a 50% shot that Uber could make part B not apply. It seems like you think it is more like a 1% shot which you might be right, I am not a lawyer.

I guess the question is whether the companies can allow the drivers enough freedom to make them contractors, while still retaining enough control to maintain service standards. Letting the drivers set their own prices, perhaps through some sort of bidding system, might go a long way.

Agreed. If I work for a plumbing company, where is my normal workplace?

Uber?

What about the Post Office??

This is going to create an interesting situation for the supremacy clause.