
San Francisco to Uber, Lyft: If your drivers aren’t employees, prove it - cribbles
https://arstechnica.com/tech-policy/2018/05/san-francisco-to-uber-lyft-if-your-drivers-arent-employees-then-prove-it/
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Const-me
I think to prove that, Uber/Lyft need to allow drivers to negotiate prices
with their passengers.

Currently, Uber EULA only allows them to lower prices. Without their freedom
to negotiate prices as they see fit, IMO drivers can’t be qualified as private
contractors.

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prepend
I don’t think that’s a true condition. There are many situations where prices
are not negotiated but are set by markets (easiest being eBay) and
participants aren’t employees.

I used to do a bit of contracting and I always set a price with my clients as
part of the contract. That didn’t make me their employee. And didn’t make my
employees and contractors my client’s employees.

~~~
Const-me
> many situations where prices are not negotiated but are set by markets
> (easiest being eBay)

Market is not a third party like Uber. Market is a collective name for the
body of the dealing parties. Specifically, prices on eBay are set by sellers
for fixed price offers, and by buyers for auctions.

> I used to do a bit of contracting and I always set a price with my clients
> as part of the contract. That didn’t make me their employee.

Exactly. But if someone else would set your price with your clients, and your
only options would be to agree to the price or quit the job, I would probably
say you’re an employee, and that third party who set your prices is your
employer or manager.

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prepend
“Exactly. But if someone else would set your price with your clients, and your
only options would be to agree to the price or quit the job, I would probably
say you’re an employee”

-This is actually precisely how about a third of my contracts worked. And reviews by my firm’s lawyers+theirs made sure it was legit.

There’s a bunch of case law on this and tons of companies with this as their
business mode (eg, FedEx). It will be interesting to see how this settles out
though. I know FedEx has been through a lot of lawsuits and Microsoft famously
lost and had a bunch of contractors reclassified as employees.

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prepend
For those wondering about the “3 part rule,” this is a long standing IRS rule
for employee (statutory or common) and had tons of guidance for companies and
workers [0]. You can file an SS-8 [1] with the IRS for a determination.

Basically boils down to behavioral, financial, and relationship factors. And
you can tell that Uber and Lyft designed their business around this pretty
carefully.

I don’t see any google results about people having ss8s determined as
employees so that likely says something.

[0] [https://www.irs.gov/businesses/small-businesses-self-
employe...](https://www.irs.gov/businesses/small-businesses-self-
employed/independent-contractor-self-employed-or-employee) [1]
[https://www.irs.gov/pub/irs-pdf/fss8.pdf](https://www.irs.gov/pub/irs-
pdf/fss8.pdf)

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chalkandpaste
> ... if your company is valued at $62 billion, you can afford to give your
> workers health care.

What? Just because it's "valued" that way (that is, someone thinks it's worth
that much) doesn't mean the entity has money in the bank or that such a change
wouldn't negatively affect the companies inflow/outflow.

Not that I support Uber or Lyft (I'm best described as ambivalent), or really
have the facts for myself, but this was just so illogical I wonder how this
guy can be the city's attorney.

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davidrm
you are completely right up to the last sentence, he knows what he’s
saying/doing. he’s simply appealing to emotion hoping to influence the
verdict. he most likely knows that this argument is bullshit, but it’s a good
strategy.

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peatmoss
I think if this sort of thing happens in a lot of places, we’re going to see
how quickly that $62 billion valuation evaporates. I also predict that venture
capitalists will eventually tire of subsidizing everyone’s rides much faster
if Uber and Lyft drivers become bonafide employees (almost certainly the right
thing considering the majority of drivers).

Of course there’s always the possibility that they’ll be able to ride things
out until autonomous fleets are real, but today’s combination of ride prices
with tomorrow’s increased compensation for drivers won’t be sustainable for
long.

That said, I’ve been participating in a beta of another TNC that uses bonafide
employees as drivers. The most interesting thing to me in that service is how
much less scarily aggressive the drivers are. It’s almost as if paying them a
wage makes them less stressed...

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CodeWriter23
This IRS document has an assortment of tests to determine employee vs.
contractor. I don’t see even 1 of these tests evaluating as “employee” in the
case of Uber of Lyft.

[https://www.irs.gov/newsroom/understanding-employee-vs-
contr...](https://www.irs.gov/newsroom/understanding-employee-vs-contractor-
designation)

