Why workers should fight for employee status
“UBER driver deemed employee by Labor Commissioner” is a headline. Why should this matter? Because employees receive more, in terms of pay, and in terms of legal protection than independent contractors. Employees, for instance, are reimbursed for expenses they incurred in performing their work.
The driver’s claims against Uber for reimbursement of expenses such as gas, insurance, is the issue before the Labor Commissioner. For the driver to win, she must be deemed as an employee.
Barbara Berwick drove for Uber from July to September and racked up over $4,000 in expenses. She asked Uber to reimburse her and was refused. Berwick complained to California’s Labor Commissioner, arguing that she is entitled to reimbursement. In a decision early this month, the Labor Commissioner agreed with Berwick.
The Labor Commissioner found that even though Uber presents itself as nothing more than a network company that brings together drivers and passengers in need of a ride, Uber is involved in important aspects of the operation. Uber vets drivers, requires them to provide personal banking, residence, and Social Security information, and conducts DMV and background checks.
Uber also requires the drivers to register their cars with Uber, and none of their cars can be more than ten years old. Uber monitors the drivers’ approval ratings and terminate their access to the application if the rating falls below 4.6 stars. Finally, Uber sets the price for the trip, and it alone negotiates the rates with passengers, simply paying the drivers a non-negotiable service fee.
Although several factors are considered in determining whether a contractor relationship exists, the most important factor is control. By obtaining the clients in need of the service and providing the drivers, Uber retained all necessary control over the operation as a whole. In light of this, the Labor Commissioner considered Berwick an Uber employee and is, thus, entitled to reimbursements from Uber.
Misclassified contractors lose out in many ways. They are not employees and, therefore, do not have the same rights and protections that employees enjoy. Employees are entitled to the following rights:
1) the right to minimum wage
2) the right to overtime pay for working more than 8 hours per day or 40 hours per week
3) protection from unlawful deductions
4) the right to the employer’s share of the social security, unemployment and disability taxes 5) workers’ compensation protection
6) additional benefits granted by employers to employees such as sick pay, retirement and profit-sharing plans
7) protection from unlawful discrimination and harassment
Persons classified as independent contractors are not entitled to any of the above rights. In addition, they are not entitled to significant benefits provided by employers such as health insurance, pension plans, or sick and vacation leaves. It is to the worker’s advantage, therefore, that he or she be correctly treated as an employee.
Our firm has fought cases for hundreds of workers seeking employee status and have recovered back wages due. These lawsuits also enabled employees to obtain additional benefits at work, without them paying out of pocket expenses in the prosecution of these cases. Workers classified as contractors should therefore seek confidential consultation with experienced employment attorneys.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.
