Will Uber drivers get class-action status for employment case?

Will Uber drivers get class-action status for employment case?
http://www.sfchronicle.com/business/article/Will-Uber-drivers-get-class-...
By Carolyn SaidAugust 6, 2015
August 6, 2015 5:19pm

Uber driver Sara Knapp (middle) answers questions during a press conference at the plaza entrance of 450 Golden Gate Ave. in San Francisco, Calif., on Thursday, August 6, 2015. Drivers discuss the O'Conner vs. Uber lawsuit seeking to reclassify Uber drivers in California as employees. Knapp became an Uber driver New Years day this year.

Uber driver Sara Knapp (middle) answers questions during a press conference at the plaza entrance of 450 Golden Gate Ave. in San Francisco, Calif., on Thursday, August 6, 2015. Drivers discuss the O'Conner vs. Uber lawsuit seeking to reclassify Uber drivers in California as employees. Knapp became an Uber driver New Years day this year.
A lawsuit by Uber drivers seeking to be deemed employees could become a bludgeon against the ride company or end up as a mere mosquito, depending on the outcome of a court hearing in San Francisco.

U.S. District Judge Edward Chen heard arguments Thursday about whether O’Connor et al vs. Uber Technologies deserves status as a class-action case representing 160,000 current and past Uber drivers in California, or whether it should be confined to the three drivers who brought the suit. His decision is not expected for several weeks.

The case’s outcome also looms over other on-demand companies because workers deemed employees have mandates on wages and benefits that contractors do not. It’s the furthest along of a recent raft of worker lawsuits against such firms, and potentially involves the largest numbers of plaintiffs.

Chen appeared skeptical of Uber’s arguments at the hearing’s outset. “Isn’t it contradictory that Uber says every single driver is an independent contractor and yet also says they are dramatically different from one another and thus can’t be certified as a class?” he asked.

Once the suit moves to a jury trial, where it will be decided on its merits, much of the “rights of control” that would be debated are uniform among drivers, Chen said, seeming to indicate that he’s leaning toward certifying the case as a class action. He also indicated that he can see evidence on both sides, pointing out that Uber doesn’t control drivers’ schedules or routes, while it does control fares and monitor their performance using star ratings.

In fact, Uber’s rating system, in which passengers rate drivers with up to five stars, is a major factor. Chen scoffed at Boutrous’ assertion that only some driver contracts specify that they can be “deactivated” for low ratings. “Is Uber going to say that it doesn’t have authority to control someone who … can’t cut it?” he asked.

Uber submitted as evidence statements from 400 drivers saying they prefer being independent contractors. While that sounds initially impressive, Chen said, measured against the 160,000 potential class members, it’s not even 1 percent. It would carry more weight if those drivers were randomly selected, he added. “I gather that’s not the case,” he said.

Chen also questioned whether the plaintiff drivers had much backing among other drivers. “There’s nothing in the record to show mass support for the position of your three named plaintiffs,” he said to the drivers’ attorney, Shannon Liss-Riordan.

The law is what matters, not drivers’ desires, she said. “This isn’t a popularity contest,” she said. “It’s not a question of what people want.”

She said 1,700 Uber drivers, more than half of them from California, have contacted her firm asking how they can be involved in the case.

Ted Boutrous, Uber’s lead outside counsel, claims that granting drivers employee status would force Uber to clamp down on the freedom they now enjoy, exerting control over when, where and how drivers work. Chen also took issue with that portrayal, saying Uber told the drivers who submitted declarations that they’d lose flexibi