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The putative employer's right to control work details is not the only relevant factor and the control test cannot be applied rigidly and in isolation. Thus, the Supreme Court has also embraced a number of "secondary indicia" that are relevant to the employee/independent contractor determination. These additional factors include:(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.
Named plaintiffs Douglas O'Connor and Thomas Colopy filed this putative class action on behalf of themselves and other similarly situated individuals who drive for Defendant Uber Technologies, Inc.(“Uber”) Plaintiffs claim that they are employees of Uber, as opposed to its independent contractors, and thus are eligible for various statutory protections for employees codified in the California Labor Code, such as a requirement that an employer pass on the entire amount of any gratuity “that is paid, given to, or left for an employee by a patron.”
Pending before the Court is Uber's motion for summary judgment that Plaintiffs are independent contractors as a matter of law.
Were plaintiff Uber drivers classified as independent contractors instead of employees, as argued by defendant Uber?
The United States District Court held that the drivers were presumptive employees of Uber, not independent contractors, because the drivers performed a service for Uber and Uber depended on its drivers' performance of services for its revenues. Fundamentally, it was obvious that the drivers performed a service for Uber because Uber simply would not be a viable business entity without its drivers. Because plaintiffs established that they provided a service to Uber, a rebuttable presumption arose that they were Uber's employees. Whether a hiree was an employee or independent contractor was a mixed question of law and fact generally to be decided by the jury. The Court found that there were disputed facts, including those pertaining to Uber's level of control over the "manner and means" of the drivers' performance, that precluded a grant of summary judgment to Uber.