
Florida Classifies Uber Driver as Employee, Says He Is Eligible for Unemployment - prostoalex
http://www.buzzfeed.com/johanabhuiyan/florida-agency-classifies-uber-driver-as-employee-says-he-is#.ppKMwvNmdb
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dylanjermiah
From the IRS: "You are not an independent contractor if you perform services
that can be controlled by an employer (what will be done and how it will be
done). This applies even if you are given freedom of action. What matters is
that the employer has the legal right to control the details of how the
services are performed."

~~~
jasode
> _What matters is that the employer has the legal right to control the
> details of how the services are performed._

You can't just pick _one_ bullet point and imply it's an open & shut case.
It's a _combination_ of factors.

If parents contract a painter to paint a mural in a child's bedroom and says
specifically:

\- I know you prefer acrylic paints but I specifically want latex paint

\- I know your website portfolio had examples of light blue but I specifically
want Pantone #2945 dark shade of blue

\- I know you prefer to work 9-5 but I need you to work onsite from 5pm to 9pm
because that's when I'll be home from work and can give live feedback as to
how it's done

\- I know that if I leave you to your own judgement, you'd prefer to paint
Greek & Roman nudes but I need this room to be rated G so if you can paint a
depiction of Mickey Mouse fighting Batman, that's what I'm looking for.

\- ... and so on...

The homeowner can be excruciatingly specific about how & when the work is
exactly performed but most reasonable people will not insist that the painter
is an "employee." It takes more factors than just control of the work method.

Maybe Uber's combination of _other_ factors _does_ ultimately mean drivers are
employees but your extraction of one IRS guideline is not convincing.

~~~
pja
Right - the parent / painter job is going to fail on the "ongoing
relationship" part of being an employee - once the painter has painted the
room they go off to another job.

Uber on the other hand, definitely has an ongoing relationship with their
drivers, as well as specifying how they work in fairly detailed ways.

~~~
jasode
>Uber on the other hand, definitely has an ongoing relationship with their
drivers,

But Uber drivers can also have _simultaneous_ business relationships with
Lyft, _and_ be a NY taxicab driver, _and_ offer driving services on
Craigslist, etc.

Employers such as Apple Inc or Microsoft would not tolerate an employee
working simultaneously for Google Inc.

The folks contending Uber drivers are employees have valid points. However,
Uber also has valid bullet points that the drivers are contractors. I don't
know which way the scales tip. I guess all this dialogue in the media, the
local governments, and maybe the IRS is trying to sort it out.

~~~
macspoofing
I can work at McDonalds in the mornings and Burger King at night.

~~~
jasode
And does the worker at McDonalds and/or Burger King bring his own grease
fryer, bun warmers, and soda dispensers?

In contrast, Uber/Lyft drivers own/lease their own cars. Who provides the
equipment to do the work is also another IRS factor.[1]

And btw, I don't think sniping with one liners that biases one viewpoint is
quality discussion.

[1] see item #14: "FURNISHING OF TOOLS AND MATERIALS."

[https://www.mdc.edu/hr/Operations/AFS/IRSFactorTest.pdf](https://www.mdc.edu/hr/Operations/AFS/IRSFactorTest.pdf)

~~~
jmaygarden
Pizza delivery drivers bring their own vehicles and are still considered
employees.

~~~
jasode
The actual product is arguably the "pizza" much more so than the "driving"
evidenced by the fact that customers themselves will sometimes drive to Papa
John's or Dominoes to pick up their own pizzas. In that framework, the
standard would be for the pizza driver to also provide his own pizza dough,
pepperoni, and baking ovens. If the pizza companies eventually figure out how
to use flying drones to drop off pizzas and eliminate drivers, I'm sure the
customers would be fine with it. The customers weren't really "buying the
driver"; they were buying the pizza with the convenience of delivery.

With Uber/Lift, the "driving" itself is 100% the product.

And why does the discussion continue to be "one bullet point" at a time
instead of a _combination_ of factors?

If parents provide _all_ the equipment & materials for the babysitter (infant
formula, diapers, toys, Walt Disney DVDs, etc) along with the premises to do
the work (the parents' home), does that make babysitter an employee?

If a dog owner provides the leash, the pet treats, and the back yard for the
pet sitter to walk and exercise the dog, should the pet sitter be classified
as "employee"?

Is it one factor or a _combination_ of factors?

~~~
threeseed
No I think you're wrong there.

The job description for a Pizza Hut driver is to drive no different to an Uber
driver. Whether they are delivering pizza or people is irrelevant. It's all
about the nature of the work.

~~~
jasode
>It's all about the nature of the work.

No, it's _not_ _all_ about the nature of the work. Again, that's just applying
one-dimensional criteria. To re-emphasize: is the employee/contractor
classification just one factor or a _combination of factors_?

The concept of "driving" does not automatically mean an "employee"
relationship. Many (probably most) 18-wheel truck drivers are independent
contractors. Many drivers of tour & charter buses are subcontractors as well.
Those charter bus drivers transport people like Uber drivers too.

Likewise, the "nature of photography work" does not instantly categorize it as
employee vs freelancer. Sports Illustrated had some staff/employee
photographers. But National Geographic has freelance photographers.

Another most obvious example to HN would be the existence of both contract and
employee programmers.

It isn't just about the "nature of work".

It isn't just about who provides the equipment.

It isn't just about who decides the hours of when the work is performed.

It's isn't just _one_ criteria.

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pekk
The elephant in the room is that the tech industry is FULL of companies who
are using contractor status to shift tax burden and avoid paying benefits.
Almost nobody ever calls this out and those who do are likely to get
blackballed.

If Uber is hiring drivers and treating them as employees while classifying
them as contractors, that isn't special to Uber, it's just the application of
the tech industry's way of doing things to taxi drivers.

~~~
floody-berry
Companies like Uber are much worse than that. They're a glorified web app
profiting off of hundreds of thousands of people who do all the work and bear
all the risk while the only people getting rich are the scum at the top and
their reprehensible backers.

Uber, Airbnb, etc. should make their slogan "Loopholes 101: Exploitation on a
global scale. You do the work, we make the money. Fuck you, we don't care!"

~~~
ahallock
Your comment is filled with vitriol -- did you something happen to you? Why
would Uber drivers be getting "rich" anyway? A decent living might be
possible, but I don't think driving cars is valued as much in the economy as
those creating jobs, nor should it be. And to say Uber bears no risk is
completely false--people invested money into Uber without any guarantees. And
I'm not saying that these companies are without criticism or that they don't
exploit workers. I'm just more baffled that alternatives haven't come along to
disrupt them -- say a completely open, peer to peer network of drivers using
open source applications that get paid through Square, Stripe, etc.

~~~
floody-berry
Why would something need to happen to me to point out exploitation? Uber and
Airbnb make money off people breaking the law. They exploit hundreds of
thousands of people wanting to make a little extra money so that they can make
a lot. They and their investors deserve to be singled out and condemned. That
this _doesn't_ happen regularly should be more shocking than pointing it out
in less than diplomatic terms.

~~~
ahallock
> They exploit hundreds of thousands of people wanting to make a little extra
> money so that they can make a lot.

Turning a profit does not automatically equal exploitation. How do you think
companies create new jobs or make capital investments? You must think that
profits are direct-deposited into the CEO's bank account, and never re-
invested into technology, new jobs, or into open source software that benefits
the community.

And I don't think you should be using the word "exploit" so freely. Look at
the sweat shops making designer clothes--that's exploitation. Taking a
transactional fee off a house rented on Airbnb?--I don't think so. What was
that house doing before Airbnb? It wasn't generating any revenue. Renters were
not depending on that as a primary source of income. Save your outrage for
real exploitation.

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lazyant
In Canada a similar argument could be made [http://www.cra-
arc.gc.ca/E/pub/tg/rc4110/rc4110-e.html#worke...](http://www.cra-
arc.gc.ca/E/pub/tg/rc4110/rc4110-e.html#workers_employment_status)

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lawnpuppies
I never see anyone discussing whether the IRS should change its
classifications based on the world be live in now, as opposed to when they
created those rules.

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MichaelCrawford
this is important. The law in the US as to whether one is an employee or an
independent contractor is quite clear. Look up the "twenty factors"; sometimes
they're referred to as the "twenty questions".

Among the factors is who shoulders the financial risk. If it's not possible
for you to lose money, that's one of the factors that qualifies you as an
employee.

Your title or contractual relationship have nothing to do with it.

~~~
paulsutter
Uber drivers buy a car, pay for insurance, gas, etc, and certainly run the
risk of losing money. They also have total control over their time and work.
They can switch on or switch off anytime they like, and choose whether to
accept each ride request.

There are lots of reasons to criticize uber. Classifying the drivers as
contractors isn't a reasonable one.

~~~
dnautics
I agree that "classifying the drivers as contractors is not a reasonable
_criticism_ " of Uber. But strictly in terms of the operation of
classification, they are in a somewhat grey area. In my opinion, on balance,
Uber drivers are more like ICs than they are employees (and by a very wide
margin). The problem is the 20 point test is totally ridiculous and doesn't
give clear guidelines as to how much to 'weight' each of the criteria and thus
gives great leeway for anyone to make a 'strong' claim in either direction by
selectively ignoring the points that don't fit their preconceived opinion.

~~~
sokoloff
The federal tax code has to work for literally hundreds of millions of people
and billions of situations. The presence of grey areas is a design feature not
a bug, IMO.

Yes, it can be annoying and frustrating to not know with a bright line test of
executable English law code the outcome, but I can only imagine how much worse
it would be if we tried to reduce every situation down to exhaustively
testable 0/1 pure-white/pure-black codification.

The disambiguation is lazily evaluated (sometimes at significant expense) by
the tax courts, or you can request an evaluation ahead of time in a private
letter ruling (at very reasonable expense). I believe this is still better
than eager/greedy evaluation of all situations.

Almost irrelevantly, I also think that Uber drivers are significantly more ICs
than employees.

