Initial Brief Florida Third District Court of Appeal Darrin McGillis vs Uber Technologies

8/19/2019 Initial Brief Florida Third District Court of Appeal Darrin McGillis vs Uber Technologies

1/54

i

IN THE DISTRICT COURT OF APPEAL

FOR THE THIRD DISTRICT

STATE OF FLORIDA

DARRIN E. MCGILLIS

Appellant,vs.

Third DCA Case No.DEPARTMENT OF ECONOMIC

3D15-2758

OPPORTUNITY; and RAISER LLC,dba UBER; ET AL., L.T. Case No. 0026 2834 68-02

Appellees. ____________________________/

APPELLANT'S INITIAL BRIEF

__________________________________________

On Appeal from the final agency order of theState of Florida Department of Economic Opportunity

Reemployment Assistance Appeals.__________________________________________

Respectfully Submitted,

Darrin E. McGillis, Appellant

/s/ Darrin E. McGillis ____

In Proper Person

22205 SW 103 AvenueMiami, Florida 33190Telephone.: (305) 506-4411

Email(1): [email protected](2): [email protected]

R E C E I V E D , 3 / 8 / 2 0 1 6 3 : 5 5 A M , M a r y C a y B l a n k s , T

h i r d D i s t r i c t C o u r t o f A p p e a l


2/54

ii

TABLE OF CONTENTS

TABLE OF CITATIONS ...................................................................................... iii

PRELIMINARY STATEMENT ............................................................................1

STATEMENT OF THE CASE AND FACTS .......................................................3

SUMMARY OF ARGUMENT .............................................................................12

ARGUMENT ..........................................................................................................16

A. Argument on the Merits; Appellant was an Employee of Uber ..................16

a. Control Over the Work ..................................................................................17

b. Distinct Occupation or Business....................................................................23

c. Whether the Work is Usually Done Under the Direction of the Employer or

by a Specialist Without Supervision ..................................................................24

d. The Skill Required in the Occupation ...........................................................27

e. Whether the Employee Supplies the Instrumentalities, Tools, & Place of

Work ..................................................................................................................28

f. The Length of Time for Which the Person is Employed ...............................30

g. Method of Payment, Whether by the Time or by the Job .............................32

h. Whether or Not the Work is Part of the Regular Business of the Employer.35

i. Whether or Not the Parties Believe they are Creating an Independent

Contractor Relationship .....................................................................................39

j. Whether the Principal is or is not in the Business ..........................................40

B. Standard of Review .....................................................................................43

CONCLUSION .......................................................................................................45

CERTIFICATE OF SERVICE ............................................................................46

STATEMENT OF COMPLIANCE WITH RULE 9.210(a)(2) .........................47


3/54

iii

TABLE OF CITATIONS

CASES

4139 Mgmt. Inc. v. Dep’t of Labor & Emp’t ,

763 So.2d 514 (Fla. 5th DCA 2000) ................................................................ 13, 17

Adams v. Dep’t of Labor & Emp’t Sec., Div. of Unemployment Comp. ,

458 So.2d 1161 (Fla. 1st DCA 1984) ......................................................... 23, 33, 39

Air Couriers Int’l v. Emp’t Dev. Dep’t , 150 Cal.App.4th 923 ...............................21

Alexander v. FedEx Ground Package Sys., Inc. ,

765 F.3d 981 (9th Cir. 2014) ............................................................................ 18, 25

Berrocal v. Moody Petroleum, Inc. ,

2009 WL 455448, (S.D. Fla. Feb. 22, 2009) ..........................................................31

Bowdoin v. Anchor Cab 643 So.2d 42 (Fla. 1st DCA 1994) .......................... 34, 35

Campos v. Zopounidis , 2011 WL 2971298, (D. Conn. July 20, 2011)..................30

Cantor v. Cochran, 184 So.2d 173 (Fla. 1966) ............................... 2, 12, 22, 35, 39

Carlson v. FedEx Ground Package Sys., Inc. ,

787 F.3d 1313 (11th Cir. 2015)...............................................................................18

Clincy v. Galardi S. Enterprises, Inc. ,

808 F.Supp.2d 1326 (N.D. Ga. 2011) .....................................................................30

Conley v. Oliver & Co. , 721 A.2d 1007 (N.J. Super. Ct. App. Div. 1998).............22

Cotter v. Lyft, Inc. , 60 F.Supp.3d 1067 (N.D. Cal. 2015) ......................... 26, 27, 37


4/54

iv

Florida Hospital v. Agency for Health Care Administration ,

823 So.2d 844 (Fla. 1st DCA 2002) ........................................................................43

Gonzalez v. Workers’ Comp. Appeals Bd. , 46 Cal.App.4th 1584 (1996) ..............30

Grant v. Woods, 71 Cal.App.3d 647 (Cal. Ct. App. 1977) .....................................39

Gustafson v. Bell Atlantic Corp. , 171 F.Supp.2d 311 (S.D.N.Y. 2001) ................28

Harper ex rel. Daley v. Toler , 884 So.2d 1124 (Fla. 2d DCA 2004) .....................17

Harrell v. Diamond A Entm’t, Inc. , 992 F.Supp. 1343 (M.D. Fla. 1997) ............21

Hathcock v. Acme Truck Lines, Inc. , 262 F.3d 522 (5th Cir. 2001) ....................41

Herman v. Express Sixty-Minutes Delivery Serv., Inc.,

161 F.3d 229 (5th Cir. 1998) ............................................................................ 29, 41

Hicks v. Kemp , 79 So.2d 696 (Fla. 1955) ...............................................................36

JHK Enter. v. Dep’t of Indus. Relations , 142 Cal.App.4th 1046 ................... 21, 35

Justice v. Belford Trucking Co., Inc. , 272 So.2d 131 (Fla. 1972) ........................28

Keith v. News & Sun Sentinel Co., 667 So.2d 167 (Fla. 1995) ...............................2

La Grande v. B&L Servs., Inc. , 432 So.2d 1364 (Fla. 1st DCA 1983) .................13

Lee v. Am. Family Life Assurance Co. of Columbus ,

431 So.2d 249 (Fla. 1st DCA 1983) ........................................................................39

Lewis v. ASAP Land Express, Inc. , 554 F.Supp.2d 1217 (D. Kan. 2008) ...........29

Magarian v. S. Fruit Distrib. , 1 So.2d 858 (Fla. 1941) ............................ 13, 30, 40

Malloy v. Fong , 37 Cal.2d 356 (1951) ....................................................................26


5/54

v

Matter of BKU Enter., Inc. , 513 N.W.2d 382 (N.D. 1994) ....................................22

Matter of Polinsky , 163 A.D.2d 684 (N.Y. App. Div. 1990)...................................32

Metropolitan Dade County v. State Department of Environmental Protection ,

714 So.2d 512 (Fla. 3d DCA 1998) .........................................................................43

Nat’l Sur. Corp. v. Windham , 74 So.2d 549, (Fla. 1954) ......................................17

O’Connor v. Uber Technologies, Inc. , 2015 WL 1069092

(N.D. Cal. Mar. 11, 2015) ........ 14, 16, 19, 21, 22, 23, 25, 34, 36, 37, 38, 39, 40, 41

O'Connor v. Uber Technologies, Inc.,

No. C-13-2826 EMC (N.D. Cal. Sept. 1, 2015) (Doc. 341)....................................42

Orcutt v. Envtl. Technologies, Inc. , 432 So.2d 701 (Fla. 1st DCA 1983).............32

Parlato v. Secret Oaks Owners Association,

793 So.2d 1158 (Fla. 1st DCA 2001) ......................................................................43

Parrilla v. Allcom Const. & Installation Servs., LLC ,

2009 WL 2868432, (M.D. Fla. Aug. 31, 2009) ................................................ 29, 30

Pena v. Handy Wash, Inc. , 28 F.Supp.3d 1289 (S.D. Fla. 2014) .........................28

Ruiz v. Affinity Logistics Corp. , 754 F.3d 1093 (9th Cir. 2014) .............. 18, 35, 39

S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations ,

48 Cal.3d 341 (1989) ........................................................................................ 13, 42

Sakacsi v. Quicksilver Delivery Sys., Inc. ,

2007 WL 4218984, *7 (M.D. Fla. Nov. 28, 2007) ..................................................29


6/54

vi

Sales v. Bailey , 2014 WL 3897726, (N.D. Miss. Aug. 8, 2014) .............................31

Scantland v. Jeffry Knight, Inc. , 721 F.3d 1308 (11th Cir. 2013) ........................20

Schwann v. FedEx Ground Package Sys., Inc. , 2013 WL 3353776, *5

(D. Mass. July 3, 2013) opinion withdrawn in part ,

2015 WL 501512 (D. Mass. Feb. 5, 2015) ..............................................................36

Shultz v. Mistletoe Express Serv., Inc. , 434 F.2d 1267 (10th Cir. 1970) ..............29

Solis v. A+ Nursetemps, Inc. , 2013 WL 1395863

(M.D. Fla. Apr. 5, 2013) .................................................................................. 33, 34

Solis v. Int’l Detective & Protective Serv., Ltd. ,

819 F.Supp.2d 740 (N.D. Ill. 2011) ........................................................................31

Tower Ins. Co. of N.Y. v. Rainbow Granite & Marble, Inc. ,

2010 WL 3604998 (S.D. Fla. Sept. 13, 2010) ........................................................32

Transportes Aereos Nacionales, S.A. v. De Brenes ,

625 So.2d 4 (Fla. 3d DCA 1993) .............................................................................44

Univ. Dental Health Ctr., Inc. v. Agency for Workforce Innovation ,

89 So.3d 1139 (Fla. 4th DCA 2012) ................................................................ 33, 35

Usery v. Pilgram Equip. Co., Inc. , 527 F.2d 1308 (5th Cir. 1976) .......................41

Verchick v. Hecht Invs., Ltd. , 924 So.2d 944 (Fla. 3d DCA 2006)

rev. denied, Bocelli v. Hecht Invs., Ltd. , 935 So.2d 1 (Fla. 2006).........................17

Walter v. Walter, 464 So.2d 538 (Fla. 1985) ..........................................................44


7/54

vii

Yellow Cab Coop., Inc. v. Workers’ Comp. Appeals Bd. ,

226 Cal.App.3d 1288 (Cal. Ct. App. 1991) .............................................................35

STATUTES

§120.68(7)(d), Fla. Stat. ..........................................................................................43

Cal.Lab.Code § 351 .................................................................................................42

Fair Labor Standards Act, 29 U.S.C. § 201 ...........................................................14

Restatement (Second) of Agency § 220 (1958) ............................................... 12, 13

OTHER AUTHORITIES

Administrator’s Interpretation No. 2015-1, Wage and Hour Division

(Dep’t of Labor July 15, 2015) ...............................................................................15

Berwick v. Uber Technologies, Inc. ,

No. 11-46739 EK (Cal. Lab. Comm. June 3, 2015) ........................................ 13, 18

RULES

Federal Rule of Civil Procedure 23 ........................................................................42


8/54

1

PRELIMINARY STATEMENT

In this brief, the Appellant, Darrin E. McGillis shall be referred to as the

"Appellant". The Appellee, Raiser LLC shall be referred to as "Uber", and the

Appellee, the Department of Economic Opportunity shall be referred to as

"DEO". Citations to the original seven volume record on appeal will be made by

the letter (R.) and the appropriate page number(s), with reference to the Transcript

of the administrative proceedings of August 17, 2015, being referred to as (TR.),

including references that indicate the initials of the witness providing testimony

and the pages and line numbers of the hearing transcript. “MG” refers to Matthew

Gore (Uber’s Florida General Manager and company representative at the

hearing); “DM” refers to the Appellant Darrin McGillis; and “MT” refers to the

Florida Department of Revenue representative, Myra Taylor.

At the August 17, 2015, administrative hearing (TR.01-342), the Appellant

demonstrated that drivers are being misclassified as independent contractors by the

Appellee Raiser, LLC (“Uber”). As such, Appellant and other drivers for Uber are

entitled to Reemployment Assistance.

As the record shows Uber either employs more than 10,000 drivers (MG:

TR.149:12-20) or more than 20,000 drivers (R.863-864) in the state of Florida.

See (R.438). However, Uber contends that these drivers are merely “driver-

partners,” and classifies them as independent contractors. See id. By failing to


9/54

2

recognize that its drivers are employees, Uber avoids paying unemployment

contributions on behalf of its drivers and reaps enormous savings from skirting

other employee protections as well.

Although Uber attempts to mask the reality of its employment relationship

with drivers, courts have repeatedly held that if “the actual practice of the parties

belie the creation of the status agreed to by the parties, the actual practice of the

parties should control.” Keith v. News & Sun Sentinel Co., 667 So.2d 167, 181

(Fla. 1995). A worker’s status “depends not on the statements of the parties but

upon the circumstances of their dealings with each other.” Cantor v. Cochran,

184 So.2d 173 at 174 (Fla. 1966). Here, based on the facts presented in the record,

and the legal analysis set forth in this brief, it is clear that Uber has created an

employment relationship with its drivers, including the Appellant, and so this

Court should reverse the final order of the Department of Economic Opportunity

(R.866-896) and reinstate the original finding by the Florida Department of

Revenue which correctly concluded that Appellant was in fact an employee of

Uber. See, (R.8-9), (R.469), (R.158-161).


10/54

3

STATEMENT OF THE CASE AND FACTS

1. Uber is a California-based company that arranges transportation services for

customers through its mobile phone application. See (R.67). In order to

describe its business, Uber has used the slogan “Everyone’s Private Driver.”

(MG: TR.149:1-2); (R.394). In order to use Uber, passengers request a ride

through the Uber “Rider App” and then Uber forwards the request to the

nearest available driver. (MG: TR.109:8-13). Uber is then able to track the

ride through a GPS system embedded in its software. (MG: TR.136:11-16).

After the ride has been completed, Uber charges the rider’s credit card

directly; riders store their credit card information with Uber. Passengers

cannot pay the driver directly; they can only pay through the credit card that

they have on file with Uber. (MG: TR.119:13-16); (MG: TR.121:2-5).

2.

More than 10,000 individuals drive for Uber in Florida. (MG: TR.142:15-

16); (MG: TR.149:14-15); (R.438). However, Uber's representative stated

weeks before giving sworn testimony in this case that the number of drivers

was over 20,000 in Florida. (R.863-864). Uber classifies all of its drivers as

independent contractors. (R.69). Through its (unsigned) contract with

drivers, Uber retains full discretion to terminate its drivers at any time, for

any reason. (R.75-76).


11/54

4

3. Uber does not charge for its mobile phone application or software, which

can be downloaded for free. (MG: TR.104:15). Instead, Uber derives

revenue by retaining a percentage of the fare for each ride that its drivers

provide passengers. (MG: TR.170:14-18); (MG: TR.180:15-18); (R.430).

4. In order to drive for Uber, drivers must complete an online application on

Uber’s website. Drivers must provide Uber with their date of birth, address

and social security number, upload copies of their driver’s license,

registration, and insurance, and demonstrate that their vehicle meets Uber’s

specifications. (MG: TR.103:7-15); (MG: TR.112:3-22); (DM: TR.203:20-

23). In Appellants’ case, it was required to demonstrate that his vehicle was

ten model years old or newer. (R.70). Drivers must also consent to a

background check. (MG: TR.103:15); (MG: TR.105:21-24 – 106:105).

After passing the background check, the Appellant was required to watch

several training videos before being permitted to download Uber’s mobile

phone application and receiving a Driver ID. (DM: TR.206-5-7); (DM:

TR.204-5-16). The training videos included information about accepting

ride requests, greeting and picking up passengers, and when and how to

contact customers. (DM: TR.204:9-16); (DM: TR.251:3-21). The training

videos informed drivers that their star ratings (Uber’s assessment system

under which riders have the option to provide a numerical rating and


12/54

5

comments to describe their experience on a specific ride) would be higher if

they, among other things, dressed well, opened doors for riders, and

provided riders with water and gum. (DM: TR.252:2-24 – 253:1-17).

5. Drivers are prohibited from sharing their Driver ID and mobile phone

application with other individuals. (MG: TR.123:16-19); (R.74). Moreover,

drivers cannot independently hire their own employees because Uber

requires each driver to go through its application process. (MG: TR.123:12-

14); (MG: TR.168:4-19). Appellant did not have any employees, nor did he

own or operate an independent transportation business. (DM: TR.250-11-

14).

6. There are no special educational requirements to become an Uber driver.

(MG: TR.150:5-7). Drivers are not required to have professional driving

experience or possess a commercial driver’s license. (MG: TR.150:8-23).

Drivers must simply have had their standard driver’s license for at least one

year. (MG: TR.150:10-11). Appellant does not possess a commercial

driver’s license. (DM: TR.269:1-4). Appellant also did not have any

professional driving experience, or ever worked as a taxi driver, courier, or

limousine driver prior to working for Uber. (DM: TR.249:17-24 – 250:1-3).

7. Uber does not require its drivers to carry commercial vehicle insurance.

(MG: TR.129:3-22). Instead, drivers must provide proof of personal


13/54

6

insurance, and Uber states that it covers drivers on its commercial insurance

policy during most periods where the driver’s personal insurance policies are

exempt from coverage. (MG: TR.129:3-22).

8. When receiving a ride request, drivers are able to see only the first name of

their customer and the customer’s pick-up location. (MG: TR.109:14-19).

Drivers only have a specified amount of time to accept the ride request

before it is forwarded to another driver. (MG: TR.109:19-21); (MG:

TR.110:3-7). Drivers are unable to see the rider’s requested destination

before accepting the trip. (MG: TR.113:14-20). Uber monitors each of its

driver’s acceptance rates. (MG: TR.162:1-2); (DM: TR.280:1-4); see (DM:

TR.268:19-24). As Mr. Gore testified, drivers are “encouraged to accept the

majority of trips.” (MG: TR.110:11-12). Indeed, Uber, in its discretion,

retains the power to deactivate drivers who accept less than 80% of trip

requests. (R.408); see (MG: TR.110:11-15); (MG: TR.162:3-7). Drivers

who do not accept enough ride requests might also receive a warning email

from Uber, encouraging them to increase their acceptance rate. (MG:

TR.110:19-22). Similarly, drivers must accept at least one ride every 180

days or risk being deactivated. (R.76).

9. While driving for Uber, drivers are limited to obtaining customers through

Uber’s mobile phone application, who are assigned to them at random


14/54

7

(based on which vehicle is closest). (R.426). Riders cannot request specific

drivers, and drivers are prohibited from arranging future rides with

customers obtained through the application. (MG: TR.173:3-17); (DM:

TR.280:16-18); (R.426). Drivers are also prohibited from obtaining rides

through other transportation provider services while logged into the Uber

application. (R.69). While driving for Uber, drivers are not permitted to

display any removable logos or insignia of other transportation providers.

(R.69).

10. At the end of each ride, customers are asked to provide feedback about the

ride and rate the driver on a scale of one to five; drivers also have the

opportunity to rate passengers. (MG: TR.125:4-12); (MG: TR.154:9-11).

All customer feedbacks and ratings are sent directly to Uber after each ride,

and drivers cannot view this information. Instead, Uber provides drivers

with only their cumulative star rating (from all rides given, rather than from

individual riders) and periodically sends drivers a sampling of their customer

feedback. (MG: TR.154:6-18). In its discretion, Uber warns, suspends, or

terminates drivers whose star ratings fall below the minimum standards set

by the general manager in each location. (MG: TR.125:23-24 – 126:1-7);

(MG: TR.154:19-24 – 155:1-15). Drivers who are deactivated due to low

ratings, and who complete an independent driver quality course, are


15/54

8

sometimes, in Uber’s discretion, permitted to resume their work driving for

Uber on a trial basis. (MG: TR.126:11-20); (MG: TR.160:2-10); (R.428).

11. The minimum rating in South Florida, where Appellant drove, is a 4.6 on a

5-point scale. (MG: TR.155:4-15). Further, Uber can, in its discretion, raise

or lower its minimum rating at any time. (MG: TR.155:7-8). For instance, if

Uber has too many drivers in a certain market, it is free to raise the

minimum rating in order to drop some of the drivers. (MG: TR.155:16-21).

Similarly, Uber could also lower the minimum rating in order to retain

drivers that might have otherwise been deactivated. (MG: TR.155:20-24 –

156:1-3).

12. Uber sets the fares that customers are charged, as well as the percentage of

the fare that drivers receive. ( MG: TR.169:11-13); (DM: TR.259:15-17);

(R.430). Generally, the fare is calculated using a formula that is based on

time and distance. (MG: TR.120:17-22); (MG: TR.169:14-18). Under

Uber’s standard service fee arrangement in most locations, Uber takes a 20%

commission from each uberX fare and a 28% commission from each uberXL

fare. (MG: TR.170:14-18). Although Uber’s (unsigned) contract states that

drivers can negotiate a different rate, Uber’s General Manager was unaware

of any driver who has successfully negotiated and obtained a different rate.


16/54

9

(MG: TR.171:5-8). Drivers are paid through direct deposit into their bank

accounts on a weekly basis. (MG: TR.121:2-5); (DM: TR.260-18).

13. Uber, in its sole discretion, can alter the fares it charges riders. (R.71);

(MG: TR.120:1-12). For instance, if a passenger complains that a driver

used an “inefficient route,” Uber has the discretion to alter the rider’s fare

without the driver’s permission. (MG: TR.120:1-12); (MG: TR.191:1-11);

(R.475). Uber also retains the discretion to waive a rider’s cancellation fee.

(R.71); (MG: TR.117:19-24 – 118:1-14); (DM: TR.255:18-24 – 256:1-2).

Similarly, Uber unilaterally determines the cleaning fee that each driver

receives when a rider causes damage to their vehicle. (DM: TR.228:8-10);

(R.463).

14. At times, Uber offers its drivers “surge pricing” and guaranteed hourly rates.

(MG: TR.138:13-24); (MG: TR.139:1-24; 140:1-2). Surge prices are

higher fares that Uber institutes, unilaterally, when the number of ride

requests exceeds the number of available drivers. (MG: TR.138:23-24 –

139:1-3).

15. Appellant drove for Uber from November 1, 2014, to March 30, 2015. (DM:

TR.200:4-20).

16. On March 29, 2015, a scooter ran into the rear-side door of Appellants’ car

as an Uber passenger that he was transporting exited the vehicle. (DM:


17/54

10

TR.269:22-24 – 270:1-4); (R.456-467). Appellant contacted Uber

immediately after the collision and was advised to send pictures of the

damage. (DM: TR.270:8-18); (R.463). Following the accident, Appellant

completed six more Uber rides that day. (DM: TR.277:4-7); (R.454).

17. Uber required Appellant to complete an internal Incident Report that

included questions about the identity and address of any witnesses. (DM:

TR.270:19-24); (DM: TR.271:7-9). (R.456) Appellant asked Uber to

provide the name and address of the passenger, but did not receive the

requested information. (DM: TR.275:10-24); (DM: TR.276:1-6). Because

Appellant was under the impression that the entire form needed to be

complete before getting Uber’s assistance in obtaining insurance

reimbursement, Appellant told an Uber representative that he would go to

the passenger/rider’s home to obtain the witness information, but he did not

actually do so. (DM: TR.271:2-21); (DM: TR.308:1-7). Appellant returned

the Incident Report to Uber without the passenger/rider’s personal

information. (DM: TR.271:2-5); (DM: TR.276:13-15); (R.456-457).

Appellant was told over the phone that he had been terminated because he

stated he was going to the passenger’s home. (DM: TR.277:8-13). (R.468)

Appellant never received a written explanation for the termination. (DM:

TR.308:13-16). At no time did Uber ever inform Appellant that he was not


18/54

11

allowed to go to a passenger’s home, nor was it prohibited by any

(unsigned) contract. (DM: TR.277:14-17).

18. On April 6, 2015, Appellant filed a claim for unemployment compensation.

Upon written submissions from both parties, the Florida Department of

Revenue determined that Appellant was an employee of Uber. (MT:

TR.323:14-20); (R.469).


19/54

12

SUMMARY OF ARGUMENT

As the evidence, the law, and the record before this Court, summarized in

this brief demonstrates, the only correct conclusion is that Uber has misclassified

its drivers, including the Appellant, as independent contractors in violation of

Florida law.

To determine a worker’s classification as an employee or independent

contractor, Florida courts have looked to the law of agency to guide their analysis

and have specifically considered the factors enumerated in the Restatement

(Second) of Agency § 220 (1958). Cantor v. Cochran, 184 So.2d 173, 174-75

(Fla. 1966).1

1 The Restatement lists the following ten factors which Florida courts haveused to determine whether a worker is an employee or an independent contractor:

Although control is a core indicator as to whether an employment

(a) The extent of control which, by the agreement, the master may exerciseover the details of the work.(b) Whether or not the one employed is engaged in a distinct occupation or

business.(c) The kind of occupation, which reference to whether, in the locality, thework is usually done under the direction of the employer or by a specialistwithout supervision.(d) The skill required in the particular occupation.(e) Whether the employer or the workman supplies the instrumentalities,

tools, and the place of work for the person doing the work.(f) The length of time for which the person is employed.(g) The method of payment, whether by the time or by the job.(h) Whether or not the work is part of the regular business of the employer.(i) Whether or not the parties believe they are creating the relation of masterand servant.(j) Whether the principal is or is not in the business.


20/54

13

relationship exists, “there is no hard and fast rule governing the question as to

when one should be regarded as an employee or independent contractor and [] each

case must be considered on its own facts.” La Grande v. B&L Servs., Inc. , 432

So.2d 1364, 1366 (Fla. 1st DCA 1983); see Magarian v. S. Fruit Distrib. , 1 So.2d

858, 861 (Fla. 1941); 4139 Mgmt. Inc. v. Dep’t of Labor & Emp’t , 763 So.2d 514,

517 (Fla. 5th DCA 2000). In order to be legally held to be an employee, it is not

necessary to satisfy all the Restatement factors; instead the courts consider the

factors and weigh their importance. See Magarian , 1 So.2d at 861.

Moreover, similar cases that are currently pending (which address the

question of whether Uber drivers are employees or independent contractors) shed

light on the issue before this Court. In California, which uses a test that has

practically identical factors to the Restatement test used in Florida, see S.G.

Borello & Sons, Inc. v. Dep’t of Indus. Relations , 48 Cal.3d 341 (1989), the

agency charged with enforcement of California employment laws, the California

Labor Commission, recently concluded that an Uber driver was an employee, not

an independent contractor. See Berwick v. Uber Technologies, Inc. , No. 11-46739

EK (Cal. Lab. Comm. June 3, 2015) (R.340-351). Further, the California

Employment Development Department (“EDD”) likewise recently determined that

an Uber driver was an employee and awarded him unemployment insurance

Restatement (Second) of Agency § 220 (1958).


21/54

14

benefits. (R.531). Similarly, even more recently the California Unemployment

Insurance Appeals Board affirmed another decision of the California EDD that an

Uber driver was an employee and entitled to unemployment insurance benefits.

(R.605-615). The California Unemployment Insurance Appeals Board also

affirmed a similar decision that a Lyft driver (Uber's competitor) was an employee

and entitled to unemployment insurance benefits. (R.617-624).

In addition to these agency decisions, a private class action is currently

underway in federal court in California seeking to establish that Uber drivers are

employees, not independent contractors, and thus entitled to wage law benefits. In

that case, the court denied Uber’s motion for summary judgment in which Uber

argued that the drivers could not prove that they are employees of Uber. See

O’Connor v. Uber Technologies, Inc. , 2015 WL 1069092 (N.D. Cal. Mar. 11,

2015) (R.352-378). While the court determined that the issue would ultimately be

decided by a jury, the decision strongly suggests that many of these legal factors

point toward the drivers being employees.

Notably as well, the U.S. Department of Labor (“DOL”) recently issued an

Administrative Interpretation, addressing the test for determining employee status

under the federal Fair Labor Standards Act, 29 U.S.C. § 201, et seq. That multi-

factor test, which is referred to as an “economic realities” test, is itself very similar

to the Restatement factors. In discussing these various factors (most of which are


22/54

15

the same that apply here), the DOL stressed that “most workers are employees.”

See Administrator’s Interpretation No. 2015-1, Wage and Hour Division (Dep’t

of Labor July 15, 2015); (R.380), (R.379-393).

As such, this Court should reverse the DEO's Final Order and should

reinstate the Department of Revenue’s (“DOR”) determination that Appellant was

an employee of Uber, and thus grant Appellants’ request to receive Reemployment

Assistance. Support for this conclusion is discussed below.


23/54

16

ARGUMENT

A. Argument on the Merits; Appellant was an Employee of Uber

Whether examining each of the independent contractor factors one-by-one,

or assessing the facts as a whole, the evidence clearly weighs in favor of finding

that Appellant is properly classified as an employee of Uber. Appellant was

closely controlled by Uber, with every move monitored and evaluated. Appellant

could be fired by Uber (or deactivated, as Uber calls it) if, in Uber’s discretion, it

was not satisfied with his performance. Uber’s relative investment in equipment

and technology far outweighed Appellants’. Appellant was not considered a

skilled laborer – had no previous experience or professional driving certifications.

Appellant did not operate an independent business that sold his services to

different companies, but instead provided services to Uber and its customers.

Appellant intended to have a long-term employment relationship with Uber, as

many drivers have had. Lastly, as the DOR recognized, workers like Appellant are

integral to Ubers business; without them, Uber would have no service to provide to

its customers. (MT: TR.327:4-7); see O’Connor , 2015 WL 1069092, *7 . Uber’s

argument that its drivers are independent contractors because they have the ability

to choose their hours and provide their own vehicles does not make them

independent contractors. Clearly, employees can have flexible schedules, drive

their own vehicles, and work part time. Moreover, even though entrepreneurial


24/54

17

opportunity is not a factor to consider under the Florida Restatement test for

independent contractor misclassification, Appellant had no real for profit and loss

(in order to make money, Appellant simply needed to work more hours or work

during the times and locations that Uber incentive its drivers with surge pricing or

guaranteed hourly rates) and Appellant was not able to set the rate of pay.

As explained below, the weight of the evidence shows that drivers, like

Appellant, should be properly classified as employees of Uber.

a. Control Over the Work

“It is well established that the main test in determining the existence of an

employer-employee relationship is whether the employer has direction and control

over the employee.” Verchick v. Hecht Invs., Ltd. , 924 So.2d 944, 946 (Fla. 3d

DCA 2006) rev. denied, Bocelli v. Hecht Invs., Ltd. , 935 So.2d 1 (Fla. 2006)

(citations omitted). The right to control the means used to accomplish work

generally points towards the existence of an employment relationship. Harper ex

rel. Daley v. Toler , 884 So.2d 1124, 1131 (Fla. 2d DCA 2004) ; 4139 Mgmt. Inc. ,

763 So.2d at 517; Nat’l Sur. Corp. v. Windham , 74 So.2d 549, 550 (Fla. 1954).

Here, Uber maintains control over its drivers’ work.

In order to work for Uber, drivers must begin by filling out an online

application on Uber’s website. Next, drivers must pass a background check, watch

several training videos and demonstrate that their car meets Uber’s standards


25/54

18

before they are permitted to access Uber’s mobile phone software application.

(R.395) (“As part of our initial review process, we inspect all potential uber

vehicles to make sure they meet our high quality standards”). Here, Appellant was

required to have a car that was ten model years old, or newer. (R.70). Notably,

although Uber contends that its drivers can hire other drivers, the (Unsigned)

Raiser Software Sublicense & Online Services Agreement (“Services Agreement”)

states that drivers are forbidden from sharing their Driver ID or software with

anyone else. (R.74). Thus, drivers must obtain Uber’s approval for any drivers they

hire, who must themselves apply to Uber, pass its background check, and obtain

their own account number. Berwick v. Uber Technologies, Inc., Case No. 11-

46739 EK, *9 (Cal. Lab. Comm’n Jun. 3rd, 2015) (R.348) (R.340-351). As the

Ninth Circuit held in Alexander v. FedEx Ground Package Sys., Inc. , 765 F.3d

981, 994 (9th Cir. 2014), policies that require a driver to obtain the company’s

approval before allowing the driver to hire their own employees, is indicative of

control and supervision. See also Carlson v. FedEx Ground Package Sys., Inc. ,

787 F.3d 1313, 1321 (11th Cir. 2015); Ruiz v. Affinity Logistics Corp. , 754 F.3d

1093, 1102-03 (9th Cir. 2014) (“While the district court found that approval was

largely based upon neutral factors, such as background checks required under

federal regulations, it is still true that the drivers did not have an unrestricted right


26/54

19

to choose these persons, which is an important right that would normally inure to a

self-employed contractor”) (internal quotations and citation omitted).

Uber transmits frequent communications to its drivers reminding them of the

professionalism and service that is expected of them. (DM: TR.256:8-24 – 258:1-

6); see (R.394) (vehicles should be “clean and kept free of odors that may disturb a

client”); (R.402) (While at the Miami International Airport, Uber instructs its

drivers to “[k]eep your Uber phone off your windshield – put it down in your

cupholder” in order to avoid tickets); (R.408) (“You should accept at least 80% of

trip requests to retain your account status”); (R.405) (“call or text the rider as soon

as you have arrived”); (R.472) (“We suggest that drivers wait for users for at least

5 minutes after arriving at the trip starting point”). Although Uber contends that

these communications are mere “suggestions,” these “suggestions” are actually

evidence of control, given that, Uber monitors its drivers’ compliance with its

directives through its customer feedback and star rating system. O’Connor , 2015

WL 1069092, *13; (R.70-71).

Moreover, although Uber argues that it is not the company, but instead,

customers who are evaluating the drivers’ performance through Uber’s rating

system, this argument does not detract from the fact that it is Uber that has decided

how to use customer feedback to evaluate its drivers and terminate them if

necessary. Indeed, all companies that provide services to customers have an


27/54

20

interest in evaluating their workers’ performances based on customer satisfaction.

It is Uber, the company, that collects the customer ratings and decides how to use

them in determining which drivers to employ and which to terminate. Indeed, the

recent DOL Administrator’s Interpretation explains that although “[s]ome

employers assert that the control that they exercise over workers is due to the

nature of their business, regulatory requirements, or the desire to ensure that their

customers are satisfied. However, control exercised over a worker, even for any or

all of these reasons, still indicates that the worker is an employee.” (R.392) (DOL

Administrator’s Interpretation). Similarly, in Scantland v. Jeffry Knight, Inc. , 721

F.3d 1308, 1316 (11th Cir. 2013), the Eleventh Circuit noted that the reason an

employer implements a monitoring system is irrelevant. There, the employer

argued that its scheduling and quality control measures were necessary due to the

nature of its cable installation business, but the court rejected that argument, stating

that “[i]f the nature of a business requires a company to exert control over workers

to the extent that [the employer] has allegedly done, then that company most hire

employees, not independent contractors.” Id .

Further, Uber maintains control over the level of compensation its drivers

receive. Uber sets the fares that passengers pay and the percentage of each fare

that drivers receive. As the Service Fee Schedule explains, Uber also retains the

power to unilaterally change the rates that drivers are paid, as well as the


28/54

21

commission that Uber takes, at any time. (R.430). Similarly, Uber exercises its

discretion by unilaterally determining the cleaning fee each driver should receive

in the event their vehicle is damaged by a rider. See (R.463). As Appellants’

testimony established, rather than assign a specific monetary figure to all messes,

or messes that fall within a particular category, Uber reimburses its drivers for

damage at varying rates based on its determination of the appropriate

reimbursement. (DM: TR.228:8-10). For instance, Appellant was given $150 to

clean his vehicle after a rider spilled meatballs on his seat and only $50 to clean up

soda. (DM: TR.229: 2-5); (DM: TR.231:2-4). The amount of money that Uber

provides often determines how well the drivers’ cars can be cleaned (and thus how

passengers may rate them in the future).

While it is true that Uber does not control its drivers’ schedules, this fact

does not make the drivers independent contractors. See O’Connor, 2015 WL

1069092, *14; Harrell v. Diamond A Entm’t, Inc. , 992 F.Supp. 1343, 1348 (M.D.

Fla. 1997) (exotic dancers who set their own schedules were employees of the

nightclub); Air Couriers Int’l v. Emp’t Dev. Dep’t , 150 Cal.App.4th 923, 926

(courier drivers who set their own work schedule were employees as a matter of

law); JHK Enter. v. Dep’t of Indus. Relations , 142 Cal.App.4th 1046, 1051

(delivery drivers were employees even though they were permitted to set their own

schedules); Conley v. Oliver & Co. , 721 A.2d 1007, 1009-10 (N.J. Super. Ct. App.


29/54

22

Div. 1998) (insurance adjuster who maintained his own schedule was an employee

rather than an independent contractor); Matter of BKU Enter., Inc. , 513 N.W.2d

382, 382 (N.D. 1994) (vacuum cleaner dealers who set their own schedules were

employees of distributor). As the O’Connor court noted “[t]he fact that some

drivers are only on-duty irregularly says little about the level of control Uber can

exercise over them when they do report to work.” 2015 WL 1069092, *14.

Rather, “[t]he more relevant inquiry is how much control Uber has over its drivers

while they are on duty for Uber.” Id .

Finally, the fact that Uber retains the right to terminate its drivers in its

discretion is a significant indicator of control. See Cantor, 184 So.2d at 174

(“[t]he power to fire is the power to control”) (citations omitted). Uber maintains

full discretion to terminate its drivers at any time, for any reason. (R.75-76).

Moreover, Uber has asserted that “[t]he Company reserves the right to withhold or

revoke its approval and authorization of any Driver at any time, in its sole and

unreviewable discretion” within the terms of its own (Unsigned) contract. (R.74).

For instance, Appellant was terminated without any allegation of a breach of

contract (and no explanation at all in writing). It is readily apparent that Uber’s

policy and practice of terminating its drivers, with or without cause, is consistent

with the concept of at-will employment.


30/54

23

b. Distinct Occupation or Business

Here, it is clear that drivers operate within the ordinary course of Uber’s

business because, as the DOR and the O’Connor court have recognized, “Uber

simply would not be a viable business entity without its drivers.” O’Connor , 2015

WL 1069092, *7 ; see (MT: TR.327:4-7). Further, because riders are not permitted

to request specific drivers, and drivers are prohibited from setting up future rides

with customers obtained through Uber, drivers are limited to obtaining clients

through Uber’s software platform at random. (MG: TR.173:3-17); (R.426) see

also (R.398) "...if a driver blatantly tries to "steal" clients from Uber by offering

services outside the Uber system, this is reason for [termination] removal". As

such, Uber drivers cannot build their own client base, and cannot be said to be

engaged in their own independent business or trade. See Adams v. Dep’t of Labor

& Emp’t Sec., Div. of Unemployment Comp. , 458 So.2d 1161, 1162 (Fla. 1st

DCA 1984) (fact that workers had no control over which customers they were

assigned to weighed in favor of finding that cleaners were employees). Further,

drivers are limited to obtaining customers through Uber while they are signed into

the mobile phone application. (R.69) (“[D]uring the time you are actively signed

into the Software, you shall perform transportation services only for Requests


31/54

24

received by you via the Software.”).2

Moreover, the Appellant never drove professionally prior to working for

Uber and, like many other drivers, has never operated a transportation business

outside of his work for Uber. (DM: TR.250:11-14). Thus, drivers, like Appellant,

perform an integral service for Uber, and must be viewed as operating within,

rather than separate from, Uber’s business.

Drivers are also prohibited “display[ing] on

[their] vehicle any removable insignia provided by third-party transportation

providers, other lead generation providers, or similar.” (R.69). Such requirements

substantially impair drivers’ ability to create an independent business.

c. Whether the Work is Usually Done Under the Direction of the

Employer or by a Specialist Without Supervision

Uber uses its star rating system (under which riders have the option to

provide a numerical rating and comments to describe their experience on a specific

ride) as means to monitor drivers’ adherence to its standards. See (DM:

TR.299:18-21).3

2 Although Matthew Gore testified for Uber that drivers are permitted to useUber’s software at the same time as other mobile phone applications (i.e. Lyft or

Sidecar) at all times, other than when they are giving a ride, the (unsigned) contract indicates that drivers are subjected to this ban at all times that they areusing the Uber application. See (MG: TR.111:12-24 – 112: 1-10); (R.69).

As the (Unsigned) Services Agreement makes clear, Uber uses

3 In addition to Uber’s star rating system, riders have the option to leavefeedback. A note on Uber’s website states: “FEEDBACK MATTERS. Driversnot only meet Uber’s standards, they meet your standards. After your trip, you can


32/54

25

its star rating system to issue warnings, discipline or terminate drivers. (R.70-71)

(“Transportation Providers with low ratings may be limited in their right to accept

Requests.”); see O’Connor, 2015 WL 1069092, *13. Under this system, “Uber

drivers…are monitored by Uber customers (for Uber’s benefit, as Uber uses the

customer rankings to make decisions regarding which drivers to fire) during each

and every ride they give, and Uber’s application data can similarly be used to

constantly monitor certain aspects of a driver’s behavior.” Id., *14. “This level of

monitoring, where drivers are potentially observable at all times, arguably gives

Uber a tremendous amount of control over the ‘manner and means’ of its drivers’

performance.” Id .4

Further, Uber’s monitoring system, coupled with its unilateral discretion to

terminate its drivers at will is extremely strong evidence of the control that Uber

holds over its drivers. As with any employee, drivers who know that Uber has the

rate your experience and leave additional feedback about your driver.” (R.474).Uber passes on this feedback to its drivers.

4 In O’Connor, the court compared the monitoring system used by Uber to thelevel of monitoring that FedEx exercised over its delivery drivers. O’Connor,

2015 WL 1069092, *14; see also Alexander, 765 F.3d at 985 (holding thatdelivery drivers who were subjected to quarterly ride-alongs by FedExmanagement in order to critique minute aspects of service were employees as amatter of law). The O’Connor court noted that, because Uber drivers weremonitored during each ride (as opposed to four pre-arranged times each year),“viewing the evidence in the light most favorable to the [Uber drivers], it appearsthey are monitored more pervasively than the drivers in Alexander.” O’Connor,

2015 WL 1069092, *14.


33/54

26

power to fire them at any time, for any reason, will be motivated to act in

accordance with their employer’s directives in order to avoid being terminated.

See Cotter v. Lyft, Inc. , 60 F.Supp.3d 1067, 1079 (N.D. Cal. 2015); see also

Malloy v. Fong , 37 Cal.2d 356, 370 (1951) (“The power of the principle to

terminate the services of the agent gives him the means of controlling the agent’s

activities”). As the Appellants’ testimony made clear, knowledge that Uber could

terminate him at any time caused him to avail himself to Uber’s instructions on

how to increase his star ratings in order to avoid being fired. (DM: TR.267:5-24 –

268:1-12).

Although Uber may argue that it uses an automated system that terminates

all drivers that fall below the minimum star rating that is set by the general

manager of each geographic market, it is clear that Uber maintains the right to use

discretion in deciding which drivers it terminates and which drivers it allows a

second chance. See (MG: TR.125:23-24 – 126:1-7); (MG: TR.154:19-24 – 155:1-

15). For instance, an article on the Uber Miami website states that “[i]n the event

that your account is deactivated, we can recommend a driver improvement course

to help you learn from other highly rated drivers. If we see that you complete this

class, we will consider your account for re-activation” (emphasis added). (R.428).

Moreover, “[i]f your rating over the most recent 100 trips is below a 4.6, your

account may be at risk of deactivation” (emphasis added). (R.428). This article


34/54

27

demonstrates that Uber uses its discretion in determining when to deactivate

drivers, as when deciding which of its drivers deserve a second chance. Further, as

Matthew Gore stated, Uber can, in its discretion, raise and lower its minimum star

rating system in order to ensure that there is an ideal balance between drivers and

riders in each geographic market. (MG: TR.155:7-8). As such, Uber could lower

the minimum star rating to retain drivers it would have otherwise terminated, or

raise the minimum star rating in order to shed some of the drivers. (MG:

TR.155:16-21); (MG: TR.155:20-24 – 165:1-3).

Thus, because Uber uses real-time data from its star rating and rider

feedback systems to monitor drivers’ performances, it is more than evident that

Uber drivers work under the direction and supervision of their employer.

d. The Skill Required in the Occupation

“We generally understand an independent contractor to be someone with

special skill” such as plumbers, electricians, or carpenters. Cotter, 60 F.Supp.3d

at 1069. Because Uber drivers do not need specialized skills to work as drivers,

this factor weighs in favor of employee status. Uber maintains no formal

education requirements, nor does it require drivers to have professional driving

experience. (MG: TR.150:8-23); (R.69). Rather, the sole skill drivers must

possess is the ability to obtain a standard, non-commercial, driver’s license.

(R.69); see also Cotter, 60 F.Supp.3d at 1069 (“Lyft drivers use no special skills


35/54

28

when they give rides”); Pena v. Handy Wash, Inc. , 28 F.Supp.3d 1289, 1302

(S.D. Fla. 2014) (paratransit drivers’ position did not require any special skills);

Gustafson v. Bell Atlantic Corp. , 171 F.Supp.2d 311, 326 (S.D.N.Y. 2001)

(“There is no genuine dispute that plaintiff’s duties as a chauffeur required no

specialized skill or initiative, suggesting that plaintiff was an employee rather than

an independent contractor”); Justice v. Belford Trucking Co., Inc. , 272 So.2d 131,

136 (Fla. 1972) (interstate truck driver who was found to be an employee for the

purposes of workmen’s compensation did not possess “any particular skill or

specialty other than that of an ordinary truck driver”). Given that drivers, like

Appellant, do not need any specialized skills or education in order to become an

Uber driver, this factor weighs in favor of employee status.

e. Whether the Employee Supplies the Instrumentalities, Tools, & Place

of Work

Here, in order to carry out their work, Uber drivers, such as Appellant, use

their personal vehicles and pay for their own fuel and some, but not all, insurance.5

5 Uber provides its drivers with a minimum level of commercial automobile

liability insurance. (R.70).

Importantly, courts have recognized that “[a]lthough the driver’s investment of a

vehicle is no small matter, that investment is somewhat diluted when one considers

that the vehicle is also used by most drivers for personal purposes.” Herman v.


36/54

29

Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 229 at 304 (5th Cir. 1998);

see also Lewis v. ASAP Land Express, Inc. , 554 F.Supp.2d 1217, 1224 (D. Kan.

2008). Thus, in weighing this factor, courts consider the relative investment in

equipment and materials expended by each party. See Herman 161 F.3d at 304;

Sakacsi v. Quicksilver Delivery Sys., Inc. , 2007 WL 4218984, *7 (M.D. Fla. Nov.

28, 2007); see (R.387) DOL Administrator’s Guidance, (“Even if the worker has

made an investment, it should not be considered in isolation; it is the relative

investments that matter”).

Here, Uber’s investment in the development of its software and mobile

phone software application is far greater than the investment of its drivers. See

Parrilla v. Allcom Const. & Installation Servs., LLC , 2009 WL 2868432, *4

(M.D. Fla. Aug. 31, 2009) (relative investment weighed in favor of employee

status where cable installer’s use of personal vehicle and $1,000 annual investment

in equipment was less than employer’s investment in equipment); Sakacsi, 2007

WL 4218984, *6 (holding relative investment weighed in favor of employee status

where many courier drivers “used their own personal cars to make [] deliveries”

and courier service’s cost for purchasing and maintaining its software and system

far outweighed the costs to its drivers); Shultz v. Mistletoe Express Serv., Inc. ,

434 F.2d 1267, 1270 (10th Cir. 1970) (delivery drivers were employees where

their relative investment in trucks was much lower than employers investment in


37/54

30

buildings, offices, docks, equipment and supplies); Campos v. Zopounidis , 2011

WL 2971298, *7 (D. Conn. July 20, 2011) (finding that delivery driver was an

employee where his relative investment in his personal vehicle and automotive

expenses paled in comparison to the employer’s “substantial expenses of the

business, such as rent, utilities, supplies, vehicle signage, payroll, tax, or other

business expenses”); Clincy v. Galardi S. Enterprises, Inc. , 808 F.Supp.2d 1326,

1346-47 (N.D. Ga. 2011) (where dancer’s $50,000 annual investment in her work

did not exceed the nightclub’s investment in its business, the court held that the

parties’ relative investment weighed in favor of employee status).

Because Uber’s relative investment in its software and mobile phone

application is clearly far more substantial than the drivers’ provision of their

vehicles, fuel and insurance, this factor weighs in favor of employee status.

f. The Length of Time for Which the Person is Employed

A “true independent contractor relationship” exists for a “finite time of

service.” Gonzalez v. Workers’ Comp. Appeals Bd. , 46 Cal.App.4th 1584, 1594

(1996). In contrast, when a worker is hired for an indefinite period of time, an

employment relationship is implied. See Magarian , 1 So.2d at 779 (contract that

provided for an ongoing relationship contributed to finding that worker was an

employee); Parrilla, 2009 WL 2868432, *5 (cable and internet installer’s ongoing

relationship, which lasted almost one and a half years, contributed to a finding that


38/54

31

she was an employee); Berrocal v. Moody Petroleum, Inc. , 2009 WL 455448, *8

(S.D. Fla. Feb. 22, 2009) (contract that provided for an indefinite period of work

weighed in favor of finding that cafeteria worker was an employee).

Here, Uber’s (unsigned) Services Agreement creates an ongoing

relationship between Uber and its drivers that lasts until one of the parties

terminates the relationship. (R.75-76). The Appellant drove for Uber for

approximately five months, which is not an extremely short amount of time, and is

time that would not be atypical for an employee. Many Uber drivers work for

longer periods of time, and many for shorter, and it would not make sense to

classify some drivers as employees and others as independent contractors based

solely on when the driver decided to quit (or was fired). See Sales v. Bailey , 2014

WL 3897726, *11 (N.D. Miss. Aug. 8, 2014) (duration of relationship weighed in

favor of employee status where some plaintiffs worked for shorter periods but had

“sought an indefinite employment relationship”).

Moreover, as Appellants’ testimony makes clear, his relationship with Uber

was ongoing and Appellant had no intention of ending that relationship prior to his

unjust termination. See (DM: TR.225:12-15); see also Solis v. Int’l Detective &

Protective Serv., Ltd. , 819 F.Supp.2d 740, 752 (N.D. Ill. 2011) (finding evidence

weighing toward employee status where the facts indicated that the parties

“contemplated a long-term relationship”).


39/54

32

Given that Uber drivers are hired to work for an indefinite, rather than fixed,

period of time, this factor also weighs in favor of employee status.

g. Method of Payment, Whether by the Time or by the Job

Where a worker is compensated at regular intervals – even if not based on an

hourly wage – an employer-employee relationship is implied. See Matter of

Polinsky , 163 A.D.2d 684, 684-85 (N.Y. App. Div. 1990) (dentists who were paid a

percentage of the cost of their services on a weekly basis were employees); see

also Tower Ins. Co. of N.Y. v. Rainbow Granite & Marble, Inc. , 2010 WL

3604998, *1 (S.D. Fla. Sept. 13, 2010) (delivery driver who was paid every two

weeks was an employee of the granite company); Orcutt v. Envtl. Technologies,

Inc. , 432 So.2d 701, 702 (Fla. 1st DCA 1983) (worker paid hourly wage every two

weeks was an employee). Here, Uber pays its drivers on a weekly basis (rather

than after each ride) and uses direct deposit to remit payment to its drivers. (MG:

TR.121:2-5); (R.430). Uber’s method of payment (which uses a formula that

accounts for time as well as distance) looks much more similar to wage payments

than to piece-rate compensation that is traditionally associated with independent

contractor relationships.

Further, Uber frequently advertises or guarantees hourly rates to its drivers.

(MG: TR.139:1-24 – 140:1-2); (R.431-432); (R.433); (R.476).


40/54

33

And, even when the hourly guarantees are not in place, Uber drivers are not

exactly paid a flat sum on a per job basis. Instead, drivers are paid based on a

formula created by Uber, which takes account of the amount of time they are

driving as well as the distance and speed. (R.430).

Moreover, “[i]n an independent contractor relationship, the independent

contractor normally has at least an equal say in the rate to be charged for particular

work.” Solis v. A+ Nursetemps, Inc. , 2013 WL 1395863, *6 (M.D. Fla. Apr. 5,

2013). In contrast, compensation methods that involve fixed rates set by an

employer are indicative of an employer-employee relationship. See Solis, 2013

WL 1395863, *6 (nurses paid fixed rates for each shift or assignment completed

were employees, rather than independent contractors); Univ. Dental Health Ctr.,

Inc. v. Agency for Workforce Innovation , 89 So.3d 1139, 1141 (Fla. 4th DCA

2012) (dentist whose fees were unilaterally determined by his employer was an

employee); Adams, 458 So.2d at 1162 (cleaners paid 45% of gross sales, less 10%

equipment rental fee, were employees of cleaning service).

Here, Uber unilaterally sets the fares it charges riders (as well as the share of

these fares that it takes and that it remits to the drivers) and retains the discretion to

change its service fees at any time. (MG: TR.120:1-12); (R.430); see O’Connor,


41/54

34

2015 WL 1069092, *7 .6 Further, Uber also retains the discretion to adjust

individual riders’ payments as it sees fit. (MG: TR.120:1-12); (R.71) (“in the

Company’s sole discretion, a User’s cancellation fee may be waived, in which case

you will have no entitlement to any such fee”); see (R.475) (demonstrating that

Uber adjusts riders’ fares in response to complaints of inefficient routes without

consulting the driver prior to making the adjustment). Given that riders submit

credit card payments directly to Uber through its mobile phone application, drivers

do not possess the same ability to set fares or adjust individual riders’ payments.7

6 Uber’s (Unsigned) Services Agreement states that “you and the Companyshall always have the right to negotiate a Service Fee different from the pre-arranged fee.” (R.71). However, as Matthew Gore conceded during the hearing, he

is unaware of any Uber driver who has been successful in negotiating analternative fee arrangement with Uber. Thus, drivers have no functional ability tonegotiate their fares, notwithstanding the language of the (unsigned) contract. Asthe Solis court demonstrates, when the employer contends that an individualworker may negotiate a fee other than the fixed rate, but still retains the “upperhand” in determining the fee, this factor still weighs in favor of employee status.

2013 WL 1395863, *6 .

Therefore, this factor also weighs in favor of employee status.

7 Uber may argue that drivers possess the ability to set fares because they areable to charge riders less by turning off the application or pressing the end-trip

button before reaching the rider’s destination. However, it would make no sense toconclude that Uber drivers can set their own rates when their only option outside ofthe rates set by Uber would be to work for free. Moreover, the court in Bowdoin v.

Anchor Cab 643 So.2d 42,44 (Fla. 1st DCA 1994) already rejected this argumentwhen it held that cab drivers who were permitted to charge less than (but not morethan) the rate set by Anchor Cab were employees. 643 So.2d 42,44 (Fla. 1st DCA1994). There, the court found that “[b]y regulating the maximum rates charged by


42/54

35

h. Whether or Not the Work is Part of the Regular Business of the

Employer

Drivers are considered a “regular part of the principal’s business” when the

principal cannot be in business without them. Ruiz, 754 F.3d at 1105 (noting that

the drivers were an essential part of the principal’s home delivery business); see

also Univ. Dental Health Ctr., Inc. , 89 So.3d at 1141 (holding that dentist was an

employee where “the dentist’s services were part of University Dental’s regular

business); Cantor, 184 So.2d at 174 (finding that worker who assisted wholesale

grocery customers in carrying groceries was an employee where his duties were

part of the regular business of his employer); JHK Enter., 142 Cal.App.4th at

1054 (finding an employer-employee relationship where “the [courier driver’s]

duties are an integral part of the operation”); Yellow Cab Coop., Inc. v. Workers’

Comp. Appeals Bd. , 226 Cal.App.3d 1288, 1294 (Cal. Ct. App. 1991) (holding

drivers were employees where “[t]he drivers, as active instruments of that

enterprise, provide an indispensable “service” to Yellow; the enterprise could no

more survive without them than it could without working cabs”).

In order to avoid classifying its drivers as employees, Uber argues that the

drivers are not part of its regular business by arguing that the company is in the

technology industry (as opposed to the transportation industry). As such, Uber

its drivers, Anchor Cab exercised extensive control as to ‘how’ the cabbies performed their work.” Id .


43/54

36

contends that its drivers do not provide services within the regular course of Uber’s

business and, therefore, cannot be its employees. However, courts have recognized

that efforts by employers to use this type of wordplay to justify an independent

contractor relationship cannot be tolerated. Hicks v. Kemp , 79 So.2d 696, 699

(Fla. 1955); see also Schwann v. FedEx Ground Package Sys., Inc. , 2013 WL

3353776, *5 (D. Mass. July 3, 2013) opinion withdrawn in part , 2015 WL

501512 (D. Mass. Feb. 5, 2015) (rejecting FedEx’s characterization of its business

as an information and logistics network and noting that “FedEx cannot assert that it

does not provide delivery services by simply refusing to recognize its delivery

drivers as employees). Therefore, it is Uber’s actual practices, not its

characterization of those practices, that are important in determining that Uber’s

drivers perform services for it, and those services are in Uber’s usual course of

business.

Uber contends it is a technology company that serves as a mere intermediary

that connects riders and drivers, for a fee, through its mobile phone application.

See (R.67). However, as has been recognized by the federal court overseeing the

class action litigation, as well as other factfinders, this argument is simply without

merit. In O’Connor, the court issued an order denying Uber’s motion for summary

judgment, in which Uber argued that the drivers could not prove that they are

employees of Uber. 2015 WL 1069092, *15. In its opinion, the court rejected


44/54

37

Uber’s argument that it was merely a technology company, and instead found that

Uber was deeply entrenched in the transportation industry . Id ., *6 . Based on this

finding, the O’Connor court held “as a matter of law, that Uber’s drivers

render service to Uber, and thus are Uber’s presumptive employees.”

[emphases added] Id., *9. A number of recent decisions have reached similar

conclusions finding that Uber, and similar “on demand” “ridesharing” services are

in fact transportation companies.8

While Uber does, in fact, engineer software, the O’Connor court noted that

its software “is merely one instrumentality used in the context of its larger

business,” namely, transportation. 2015 WL 1069092, *6 . The O’Connor court

explained:

Uber is no more a “technology company” than Yellow Cab is a “technologycompany” because it uses CB radios to dispatch taxi cabs, John Deere is a“technology company” because it uses computers and robots to manufacturelawn mowers, or Domino Sugar is a “technology company” because it usesmodern irrigation techniques to grow its sugar cane. Indeed, very few (ifany) firms are not technology companies if one focuses solely on how theycreate or distribute their products. If, however, the focus is on the substanceof what the firm actually does (e.g., sells cab rides, lawn mowers, or sugar),it is clear that Uber is most certainly a transportation company, albeit atechnologically sophisticated one.

8 In addition to the agency decisions cited herein, the California PublicUtilities Commission has determined that Uber is a “Transportation NetworkCompany” (“TNC”) which it defines as “an organization operating in Californiathat provides prearranged transportation services for compensation.” (R.399).Additionally, a California federal court also recognized that Lyft, one of Uber’scompetitors, is not merely a “technology” company, but like Uber, a car service.Cotter , 60 F.Supp.3d at 1078.


45/54

38

Id .

Evidence that Uber is a transportation company, and that its drivers provide

an integral service, can be seen in Uber’s founding tagline, “Everyone’s Private

Driver,” as well as much of its advertising. (R.394); (R.439) (“We’re committed

to making Uber the most affordable transportation option for the community”); see

(MG: TR.149:1-2). Moreover, Uber has even referred to itself as an “On-Demand

Car Service.” (R.394); see (R.474) (“Your Ride, On Demand”).

Further, it is clear from Uber’s operating mechanisms that Uber is in the

transportation industry. For instance, “Uber does not sell its software in the matter

of a typical distributor.” O’Connor, 2015 WL 1069092, *3. This is because “Uber

is deeply involved in marketing its transportation services, qualifying and selecting

drivers, regulating and monitoring their performance, disciplining (or terminating)

those who fail to meet standards, and setting prices.” Id . Notably, Uber’s mobile

phone software application can be downloaded for free, so “Uber only makes

money if its drivers actually transport passengers.” Id., *7 . For all of these

reasons, Uber is a transportation company, notwithstanding its attempts to argue

otherwise.

Given that Uber is in the business of providing rides to customers, and it

derives its income by taking a percentage of the cost of each ride, the DOR was

correct in determining that Uber drivers are an integral part of Uber’s business.


46/54

39

(MT: TR.327:4-7); see O’Connor, 2014 WL 1069092, *7, 9 (noting that Uber only

generates revenue if its drivers give rides and finding as a matter of law that drivers

perform a service for Uber). As such, this factor weighs strongly in favor of an

employer-employee relationship.

i. Whether or Not the Parties Believe they are Creating an Independent

Contractor Relationship

“[A] statement in an agreement that the existing relationship is that of an

independent contractor is not dispositive of the issue.” Lee v. Am. Family Life

Assurance Co. of Columbus , 431 So.2d 249, 259 (Fla. 1st DCA 1983); see also

Adams, 458 So.2d at 1163 (finding that cleaners were employees of carpet and

cleaning service notwithstanding language in the contract that indicated an

independent contractor relationship). While Uber argues that the (unsigned)

Services Agreement establishes the drivers as independent contractors, courts have

not given much weight to this factor based simply on the terms of the contract that

were dictated to the worker. Moreover, many courts have held that that the parties’

subjective belief regarding their relationship should be ignored where their actual

conduct establishes a different relationship. Ruiz, 754 F.3d at 1105; see Cantor,

184 So.2d at 174 (“status depends not on the statements of the parties but upon all

of the circumstances of their dealings with each other”); Grant v. Woods, 71

Cal.App.3d 647, 654 (Cal. Ct. App. 1977) (“the belief of the parties as to the legal


47/54

40

effect of their relationship is not controlling if as a matter of law a different

relationship exists”); see also Magarian , 1 So.2d at 861 (“The parties evidently

thought they did not stand in the relationship of master and servant but if, as a

matter of law, they did so stand, their mistake in this regard would not change the

status”).

Here, Appellant may have signed up to drive for Uber based in part on its

marketing that drivers can control their schedules and not be under anyone else’s

control, but it became clear once Appellant started driving for Uber – and was

terminated in Uber’s discretion – that Appellant most certainly was under Uber’s

control. Thus, notwithstanding the language of Uber’s (unsigned) Services

Agreement, the actual conduct of the parties clearly demonstrates an employer-

employee relationship.

j. Whether the Principal is or is not in the Business

As discussed, it is plainly evident that Uber is a transportation company.

Although Uber often tries to contend that it is a technology company, and that its

software serves as a mere intermediary between drivers and riders, Uber’s

references to transportation and being an on-demand car service in its advertising,

as well as its high level of involvement in hiring, disciplining, and terminating

drivers demonstrates otherwise. See O’Connor, 2015 WL 1069092, *3. In fact,

Uber is so involved in transportation that it has even offered to provide legal


48/54

41

assistance and reimburse drivers for the cost of tickets received by drivers while

giving rides at the Miami International Airport. (R.402); (MG: TR.165:9-13).

Moreover, the fact that Uber derives its income by retaining a percentage of each

ride that its drivers give makes it immensely clear that Uber is in the transportation

business. O’Connor, 2015 WL 1069092, *7 (Uber’s “revenues do not depend

on the distribution of its software, but on the generation of rides by its

drivers”) [emphases added] . As such, this factor cuts strongly in favor of

employee status.9

In further support of the arguments made in this brief the Court is

respectfully directed to the recent decision in O'Connor v. Uber Technologies,

9 Although Uber argued that Appellant exhibited entrepreneurial motivation by deciding where and when to drive, this is not a factor to consider under the

Restatement test used by the Florida courts. But, in any event, Appellant wasmerely following Uber’s advice to increase his efficiency by “getting to know hiscity” and attempting to partake in Uber’s incentive structure in order to maximizehis wages. See (DM: TR.220:1-12); (DM TR.263:6-19); (DM: TR.300:24 –

301:1-19). Employees who react to their employers incentives are not showing“entrepreneurial motivation.” Moreover, this endeavor not only benefited theAppellant, but it also benefited Uber, who receives a percentage of the fare fromeach ride that Appellant gave. See (R.430); (MG: TR.170:14-18). As the court inUsery v. Pilgram Equip. Co., Inc. , 527 F.2d 1308, 1314 (5th Cir. 1976) makesclear, “routine work which requires industry and efficiency is not indicative of

independence and nonemployee status .” ; see also (R.389) (DOL AdministrativeInterpretation), (discussing Herman v. Express Sixty-Minutes Delivery Serv., Inc. ,161 F.3d 299, 305 (5th Cir. 1998) (“efficiency in performing work is notindicative of independent contractor status”); Hathcock v. Acme Truck Lines,

Inc. , 262 F.3d 522, 527 (5th Cir. 2001) (driver’s “ability to pick his delivery routeand work details does not evince sufficient initiative to allow him to be classifiedas an independent contractor as a matter of law”).


49/54

42

Inc., No. C-13-2826 EMC (N.D. Cal. Sept. 1, 2015) (Doc. 341) (R.698-765), in

which the Northern District of California certified a class action on behalf of

California UberBlack and UberX drivers under Federal Rule of Civil Procedure

23 to address the Plaintiffs' employment classification question and tips claim

under Cal.Lab.Code § 351. Id.,*67 . (R.764).

The O'Connor court found that "the worker classification claim presents a

common issue capable of classwide adjudication because all (or nearly all) of the

individual elements of the Borello test themselves raise common questions which

will have common answers." Id ., *17 . (R.714). Given that the Borello test uses

practically identical factors to the Restatement test used in Florida, the decision

supports this Courts determination to apply to Uber drivers in Florida generally.

In addition, the Appellant also directs the Courts attention to the recent press

release issued by the State of Alaska Department of Labor and Workforce

Development (R.695), indicating that the Department has entered an agreement

with Uber to pay into the Alaska Workers' Compensation Benefit Guaranty Fund

and to cease operations in the state unless it classifies its drivers as employees. In

the release, the Alaska Department of Labor states that "Misclassifying employees

allows companies like Uber to avoid paying unemployment insurance, taxes and

workers compensation premiums." [emphasis added ]. Also taking a stand to

enforce the correct classification of Uber drivers, The State of Oregon Bureau of


50/54

43

Labor and Industries issued a recent advisory opinion concluding that "Uber

drivers are employees". (R.825-828).

B. Standard of Review

The standard of review that applies to an administrative decision based on a

point of law does not require the same degree of deference as a decision based on a

finding of fact. Section 120.68(7)(d), Florida Statutes, provides that in reviewing

an agency decision based on a point of law, the appellate court must determine

whether the "agency has erroneously interpreted a provision of the law and

[whether] a correct interpretation compels a particular action." The standard of

review of an agency decision based on an issue of law is whether the agency

erroneously interpreted the law and, if so, whether a correct interpretation compels

a particular result. See §120.68(7)(d), Fla. Stat.; Florida Hospital v. Agency for

Health Care Administration , 823 So.2d 844 (Fla. 1st DCA 2002); Parlato v.

Secret Oaks Owners Association, 793 So.2d 1158 (Fla. 1st DCA 2001);

Metropolitan Dade County v. State Department of Environmental Protection ,

714 So.2d 512 (Fla. 3d DCA 1998).

This Court is not required to defer to the final order in this case on the issues

of law. The standard of review of legal issues involves more than a determination

whether the issue was correctly decided before the director of the DEO. A De novo

review allows this Court to be free to decide the question of law, without deference


51/54

44

to the decision of the DEO, as if this Court had been deciding the question in the

first instance. Although the DEO's decision is presumed to be correct, this Court is

free to decide the legal issue differently without paying deference to the DEO's

view of the law. Appellate courts are not required to defer to trial court on matters

of law. See, Transportes Aereos Nacionales, S.A. v. De Brenes , 625 So.2d 4 (Fla.

3d DCA 1993) (holding that an appellate court is not required to defer to a trial

court's determination of a foreign law). As the court explained in Walter v. Walter,

464 So.2d 538 (Fla. 1985), the correction of an erroneous application of the law

and the determination that the trial court abused its discretion are two separate

appellate functions.


52/54

45

CONCLUSION

Drivers, like the Appellant, perfor

Documents

Initial Brief Florida Third District Court of Appeal Darrin McGillis vs Uber Technologies