Academic journal article Southern Law Journal

Worker Characterization in a Gig Economy Viewed through an Uber Centric Lens

Academic journal article Southern Law Journal

Worker Characterization in a Gig Economy Viewed through an Uber Centric Lens

Article excerpt

The ubiquitous presence of the Internet and social web applications have given rise to new opportunities for free-lance workers. Identified by various names, one such identification as gig-economy has been a coined phrase to describe interactions wherein a worker signs on for a gig, or usually limited time job such as a musical performance. The phrasing has also been extended to the sharing economy referring to consumers in some way sharing their property with users or renters, and also referenced as peer-to-peer sharing. Examples of such gig economy activities include residential sharing such as with Airbnb and Couchsurfing, transportation sharing with Uber and Lyft, home tasks with Taskrabbit, and even pet sitting with Dogvacay. Considered by this article, however, are the developing issues resulting from broad, more intensive use of the gig economy by companies in acquiring workers, and specifically the classification of those workers as either employees or independent contractors. For purposes of this article the bulk of the commentary will be directed toward the transportation company Uber due to its lead in the industry and pervasive presence both nationally and internationally. Structurally, Section I of this article will review Uber's method of operation; Section II will appraise various methods of characterizing workers, and the impacts of characterization as either independent contractor or employee; Section III will look specifically at specific recent and current litigation involving Uber; Section IV will identify several recent legislative attempts to provide guidance; and, Section V will propose that the most efficient system to resolve many of the issues presented specific to Uber and similar business models would be a commonality of statues, much as done with the Uniform Commercial Code, with recognition at the national level.

I. The Uber Model

Uber is perhaps the poster-child for success in the sharing/gig-economy. At the time of writing of this article Uber is subject to a class action lawsuit in California, O'Connor v. Uber Techs., Inc.,1 which was subject to a settlement agreement, but such agreement was not approved by the court.2 Some of the commentary will therefore recognize the status of Uber worker's contingent on settlement.

Started in 2009 as an alternative to traditional taxi service, estimates of Uber's worth vary in estimates up to near $65 billion dollars.3 Travis Kalanick and Garrett Camp, the founders of Uber, are said to have had the initial idea for a phone application while waiting for a taxi in Paris.4 Today, Uber is an application which, as Uber stresses, puts drivers and riders in contact and provides a platform for contract. Uber has matured from its early start primarily arranging for premium car or limousine service (Uber Black). It has evolved to now providing access to less expensive smaller automobiles, usually with a maximum of four riders (Uber X), subsidiary access to taxi service (Uber taxi), and delivery services such as food delivery (Uber Eats).

In its people-transportation module, both Uber passengers and drivers are required to agree to Uber's terms of service before being granted access to its application. Within the terms included in the service agreement is the express recognition, by both passengers and drivers, that the drivers are independent contractors. Drivers and passengers are both subject to ratings and reviews within the application, and both can be denied further access to the application should their ratings fall below Uber's threshold. Passengers provide billing information such as a registered credit card, PayPal, or Uber credits.

In practice, should an Uber passenger wish a ride, they request one through the application. The passenger's request includes the current location and desired destination, and if desired the passenger receives feedback which includes the approximate fare. Drivers then logged into the application may choose to accept the passenger's request, but are not bound to accept any request. …

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