By Sam Schechner and Preetika Rana
France's highest appeals court ruled that one of Uber
Technologies Inc.'s former drivers should be recognized as an
employee rather than as an independent contractor, putting France
at the vanguard of other efforts around the world to give so-called
gig-economy workers broader employment rights.
The decision -- which can't be appealed -- appears to be the
first from a top court anywhere in the world that contradicts
Uber's contention that its drivers are independent contractors.
Uber is facing similar litigation in the U.S. and the U.K. It
recently won a case in Brazil, which ruled that its drivers aren't
employees.
The cases are part of a global battle over how to regulate
employment in the gig economy, where apps distribute individual
tasks to a pool of people that the app makers usually regard as
independent contractors.
In France, the Cour de Cassation upheld an appeals-court ruling
that found that the former Uber driver's "status as an independent
contractor was fictitious" because he had a "relationship of
subordination" to the company. That is because Uber dictates the
terms of its drivers' work, such as by setting their rates and
determining their routes, and can sanction them when they violate
Uber's rules, the court said.
The court brushed aside Uber's arguments, including that its
drivers have no obligation to work and can connect to the app when
they wish, saying that such a requirement is unnecessary to
establish employment status.
"This decision relates to the case of one specific driver, who
hasn't used the Uber app since 2017," Uber said after the decision.
"The ruling does not reflect the reasons why drivers choose to use
Uber: the independence and freedom to work if, when and where they
want."
Wednesday's decision doesn't directly affect the employment
status of other drivers in France. But the court's opinion, which
says that Uber drivers are in a "relationship of permanent legal
subordination" to Uber, could allow any Uber driver to demand
reclassification by a French employment tribunal.
"This sends a strong signal to Uber and other platforms," said
Fabien Masson, the lawyer for the former Uber driver, who will now
seek severance and back pay from the company before an employment
tribunal. "All Uber drivers will be able to use this decision."
An Uber spokeswoman said that if a current driver were to
petition to change their employment status, Uber "would have no
choice but to terminate the agreement with the driver as our app
isn't built for this model (as of now)." She added that its
existing cases in France involve only former drivers asking for
severance payments.
The issue remains under litigation in other parts of the world.
In the U.K., an appeals court ruled in 2018 that Uber drivers have
a type of employment status that entitles them to some rights such
as paid vacations and a minimum wage. Uber's appeal in that case
will be heard in the U.K.'s Supreme Court in July.
In that case as well, a key issue is subordination, or deciding
whether drivers are in a position of inferiority to Uber rather
than on an equal footing, which would be the case in a commercial
relationship, said Jason Galbraith-Marten, an employment lawyer
with London law firm Cloisters who represents drivers in the
worker-status case against Uber in the U.K.
Uber faces mounting regulatory challenges in the U.S.
California, which accounts for 9% of Uber's bookings, last year
passed a law aimed at reclassifying the company's drivers as
employees, eligible for benefits such as health insurance, sick
days and minimum wage. Uber has maintained it doesn't need to
reclassify drivers.
The law, which went into effect on Jan. 1, establishes a test
that employers must pass to classify their workers as independent
contractors. Employers who don't meet the test must treat their
workers as employees. Uber has said that it meets that test and so
doesn't need to reclassify drivers as employees. At the same time,
it has made a series of changes to give drivers in California more
autonomy to bolster its argument. Drivers in the state can now see
where riders are going, in effect choosing the trips they want to
take. Some can even set fares.
Uber has also joined with other U.S. companies whose operations
rely on so-called gig workers. Together, they collectively raised
over $110 million for a ballot initiative this year, asking that
state voters exempt them from the statute. If people vote in the
companies' favor, it would preclude further legal challenges and
invalidate any current litigation based on the law.
The ballot measure promises several other protections to gig
workers that currently don't exist, such as giving drivers 30 cents
for each mile driven to account for gas and other vehicle costs,
health-care subsidies for drivers who work 15 hours or more a week
and occupational-accident insurance coverage while on the job.
The stakes are potentially high for Uber. "The classification of
Drivers is currently being challenged in courts, by legislators and
by government agencies in the United States and abroad," Uber noted
in its 2019 annual report published on Monday. Any reclassification
would "incur significant additional expenses," the company said,
adding that it "would require us to fundamentally change our
business model, and consequently have an adverse effect on our
business and financial condition."
Uber separately said that more than 100,000 drivers in the U.S.
"have filed (or expressed an intention to file) arbitration demands
against us that assert similar classification claims." The company
said it expects to pay $170 million to settle these cases, of which
$149 million had been paid as of Dec. 31, 2019.
Such settlements "force these disputes into the shadows," said
Travis Lenkner, managing partner at Chicago-based Keller Lenkner
LLC, which this week won a successful appeal of a lower U.S. court
ruling in a Pennsylvania case. The lower court ruled that Uber
drivers couldn't be classified as employees.
"Once the disputes make it to court, Uber's business model is
being unanimously rejected. It's true in France, it's true in the
U.K. and now it's true in the U.S.," Mr. Lenkner said.
Parmy Olson contributed to this article.
Write to Sam Schechner at sam.schechner@wsj.com and Preetika
Rana at preetika.rana@wsj.com
(END) Dow Jones Newswires
March 04, 2020 15:40 ET (20:40 GMT)
Copyright (c) 2020 Dow Jones & Company, Inc.
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