Class Certification Critical in Uber Case

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Summary: A case against Uber that seeks to change their worker statuses from independent contractors to employees will largely depend on whether class certification is granted.

On Thursday, U.S. District Judge Edward Chen of the Northern District of California stated that he is not convinced that Uber Technologies Inc.’s driver survey demonstrates that the majority of drivers object to a lawsuit that seeks to provide them with minimum wage and other benefits that are guaranteed to employees.

  

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According to The Recorder, the judge was presented with declarations from 400 Uber drivers, each of which stated that the drivers enjoy being independent contractors. Many predict that the move will not be enough to defeat class certification in a class action suit that seeks to force the company to change its business model.

The judge said that 400 declarations seems “impressive, except when you measure that against 160,000 class members, that measures out to 0.25 percent, not even that.”

A judge recently ruled that Uber is a transportation services company.

The class certification fight is a major part of the case, and Uber has a lot to lose in the case. Last month, a San Francisco-based company that provided on demand housekeeping services was shut down after it faced four lawsuits over worker pay and benefits. The company had a business model similar to Uber’s. Business Insider stated that Uber could lose tens of millions of dollars if the company changes its workers from contractors to employees.

Shannon Liss-Riordan, the lead attorney for the plaintiffs, said that if she cannot bring a class action against Uber, she will begin filing individual suits. She added that close to 2,000 drivers have contacted her.

She commented, “Far less efficient, but that’s what we’d have to do.”

An Uber driver hit a six-year-old child, killing her.

The hearing on class certification lasted nearly three hours. The judge said that there are other interests to consider. For example, Uber must follow labor code regulations, and it cannot put its competitors at a disadvantage by failing to properly classify its workers. Judge Chen commented, “You cannot allow naysayers and a group of potential class members who objet to control the situation. You’re always going to get some people who don’t agree with it.”

Theodore Boutrous Jr., a partner at Gibson, Dunn & Crutcher, is the lead attorney for Uber. He said that the issue is whether the plaintiffs in the suit are able to adequately represent the interests of the class members. He explained, “Plaintiffs have three people. Three named plaintiffs. They didn’t bother to find out what anyone else desired.” According to Fortune, the defense will argue that the drivers are so different with respect to their hours and flexibility that they cannot be certified as one class.

Liss-Riordan said that the case is not a “popularity contest,” and that in employment disputes, “happy camper” declarations from workers always pop up.

For several weeks, Boutrous and his team have emphasized the 400 declarations. He has also held two press conferences on the opinions of the drivers who disagree.

Chen asked the attorneys to consider the following question: If all drivers should be independent contractors, then wouldn’t there be enough commonality in the group to certify the class?

Read more about Uber’s arguments here.

Chen said, “How can you argue that everyone is an independent contractor, it’s clear, and yet there are individual variables that preclude class certification?”

Boutrous commented that there are other factors that cannot be proven on a classwide basis. For example, he noted that Uber has used 17 driver contracts since it began its operations in California in 2009. Depending on which agreement a driver signed, he or she may be subject to varying amounts of control by Uber. This is a significant factor in determining one’s employment status. Just 10 of the 17 agreements noted that Uber can deactivate a driver if a driver’s rating is too low. Five agreements preclude drivers from working for other apps that compete with Uber.

Judge Chen commented that much of the proof in the case “is going to look very classwide.” The judge also appeared concerned about those who operated their own car services or limo companies while working for Uber. He noted, “That sure does look like an independent contractor to me.”

During a press conference prior to the hearing, Boutrous said that most drivers want to be independent contractors instead of employees. The three plaintiffs do not represent the interest of the entire class, he said. “You can’t have a class action when that is the situation,” he added.

Alicia Devora, a 50-year-old driver from San Francisco, said she enjoyed the independence of working for Uber. She said she can turn off the app whenever she needs a break. “No one’s telling me what I can do or cannot do,” she remarked.

Source: The Recorder

Photo credit: cato.org, zimbio.com (Boutrous), The Recorder (Liss-Riordan)