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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).




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