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One to Keep An Eye On: O'Connor v. Uber (Ninth Circuit Court of Appeals)


Tomorrow, the Ninth Circuit Court of Appeals is set to hold oral arguments as to whether Uber drivers were misclassified as independent contractors and therefore whether the company is in violation of the California Labor Code by not reimbursing the drivers for certain expenses.  (At present, the Court has certified a class to pursue the reimbursement claim and the tip claim in regard to whether Uber improperly failed to pass along tips to its drivers).  Uber has continued to argue that because it exercised minimal control over how drivers set their own work hours and schedules, its drivers cannot be considered employees (and therefore no violation of the California Labor Code occurred).


It will be interesting to see how the arguments play out tomorrow.  At this point, it is difficult to see how things will shake out as the Court has not tipped its hand in this case so far.  Although note that Uber's motion for summary judgment had previously been denied on the grounds that there was a fact issue as to whether its drivers were actually employees under California law.  (Readers might recall that California has a two step process for determining whether a worker is an employee or independent contractor: 1) Does the worker provide a service to the employer? and 2) How does the Borello multi-factor test apply to the facts of the case?) 

Of course, just because a motion for summary judgment is denied should not necessarily be taken as a foreshadowing of the ultimate outcome of the case.  With such a tenuous issue as to whether Uber drivers are actually employees (which could result in other related businesses such as Lyft, Fiver, Door Dash, etc being confronted with similar lawsuits), I think it is likely that the Court will be deliberate and careful in its analysis of the case when it issues its ruling.

Stay tuned.

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