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France’s highest appeals court ruled that one of
Uber Technologies Inc.’s
former drivers should be recognized as an employee rather than as an independent contractor, putting France at the vanguard of other efforts around the world to give so-called gig-economy workers broader employment rights.
The decision—which can’t be appealed—appears to be the first from a top court anywhere in the world that contradicts Uber’s contention that its drivers are independent contractors. Uber is facing similar litigation in the U.S. and the U.K. It recently won a case in Brazil, which ruled that its drivers aren’t employees.
The cases are part of a global battle over how to regulate employment in the gig economy, where apps distribute individual tasks to a pool of people that the app makers usually regard as independent contractors.
In France, the Cour de Cassation upheld an appeals-court ruling that found that the former Uber driver’s “status as an independent contractor was fictitious” because he had a “relationship of subordination” to the company. That is because Uber dictates the terms of its drivers’ work, such as by setting their rates and determining their routes, and can sanction them when they violate Uber’s rules, the court said.
The court brushed aside Uber’s arguments, including that its drivers have no obligation to work and can connect to the app when they wish, saying that such a requirement is unnecessary to establish employment status.
“This decision relates to the case of one specific driver, who hasn’t used the Uber app since 2017,” Uber said after the decision. “The ruling does not reflect the reasons why drivers choose to use Uber: the independence and freedom to work if, when and where they want.”
Wednesday’s decision doesn’t directly affect the employment status of other drivers in France. But the court’s opinion, which says that Uber drivers are in a “relationship of permanent legal subordination” to Uber, could give additional legal grounds to any Uber driver to demand reclassification by a French employment tribunal.
“This sends a strong signal to Uber and other platforms,” said Fabien Masson, the lawyer for the former Uber driver, who will now seek severance and back pay from the company before an employment tribunal. “All Uber drivers will be able to use this decision.”
An Uber spokeswoman said that if a current driver were to petition to change their employment status, Uber “would have no choice but to terminate the agreement with the driver as our app isn’t built for this model (as of now).” She added that its existing cases in France involve only former drivers asking for severance payments.
The issue remains under litigation in other parts of the world. In the U.K., an appeals court ruled in 2018 that Uber drivers have a type of employment status that entitles them to some rights such as paid vacations and a minimum wage. Uber’s appeal in that case will be heard in the U.K.’s Supreme Court in July.
In that case as well, a key issue is subordination, or deciding whether drivers are in a position of inferiority to Uber rather than on an equal footing, which would be the case in a commercial relationship, said Jason Galbraith-Marten, an employment lawyer with London law firm Cloisters who represents drivers in the worker-status case against Uber in the U.K.
Uber faces mounting regulatory challenges in the U.S. California, which accounts for 9% of Uber’s bookings, last year passed a law aimed at reclassifying the company’s drivers as employees, eligible for benefits such as health insurance, sick days and minimum wage. Uber has maintained it doesn’t need to reclassify drivers.
The law, which went into effect on Jan. 1, establishes a test that employers must pass to classify their workers as independent contractors. Employers who don’t meet the test must treat their workers as employees. Uber has said that it meets that test and so doesn’t need to reclassify drivers as employees. At the same time, it has made a series of changes to give drivers in California more autonomy to bolster its argument. Drivers in the state can now see where riders are going, in effect choosing the trips they want to take. Some can even set fares.
Uber has also joined with other U.S. companies whose operations rely on so-called gig workers. Together, they collectively raised over $110 million for a ballot initiative this year, asking that state voters exempt them from the statute. If people vote in the companies’ favor, it would preclude further legal challenges and invalidate any current litigation based on the law.
The ballot measure promises several other protections to gig workers that currently don’t exist, such as giving drivers 30 cents for each mile driven to account for gas and other vehicle costs, health-care subsidies for drivers who work 15 hours or more a week and occupational-accident insurance coverage while on the job.
The stakes are potentially high for Uber. “The classification of Drivers is currently being challenged in courts, by legislators and by government agencies in the United States and abroad,” Uber noted in its 2019 annual report published on Monday. Any reclassification would “incur significant additional expenses,” the company said, adding that it “would require us to fundamentally change our business model, and consequently have an adverse effect on our business and financial condition.”
Uber separately said that more than 100,000 drivers in the U.S. “have filed (or expressed an intention to file) arbitration demands against us that assert similar classification claims.” The company said it expects to pay $170 million to settle these cases, of which $149 million had been paid as of Dec. 31, 2019.
Such settlements “force these disputes into the shadows,” said Travis Lenkner, managing partner at Chicago-based Keller Lenkner LLC, which this week won a successful appeal of a lower U.S. court ruling in a Pennsylvania case. The lower court ruled that Uber drivers couldn’t be classified as employees.
“Once the disputes make it to court, Uber’s business model is being unanimously rejected. It’s true in France, it’s true in the U.K. and now it’s true in the U.S.,” Mr. Lenkner said.
—Parmy Olson contributed to this article.
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Unemployed Americans who have turned down job offers because they feared their prospective employers weren’t providing sufficient protection from the coronavirus would qualify for jobless aid under a directive the Labor Department issued Thursday.
The measure would also expand a federal unemployment benefits program, established in last spring’s economic relief package, to cover workers who have lost hours or who were laid off because of the pandemic. It would also cover school employees who lose jobs or work hours because of school closings.
The federal program, known as Pandemic Unemployment Assistance, made the self-employed and gig workers eligible for jobless aid for the first time.
“Until now, unemployment insurance benefits during the pandemic have been too scattered and too uncertain,” said Patricia Smith, senior adviser to the labor secretary. “That begins to change today, with many more workers now eligible for unemployment insurance benefits.”
Speaking to reporters, department officials declined to estimate how many Americans would now become newly eligible for jobless benefits.
The benefits will be made retroactive, officials said. People who applied for unemployment benefits after Dec. 27 can receive retroactive payments back to Dec. 6. Those who applied before then and were turned down can receive retroactive payments dating back to when they first applied.
With unemployed Americans now receiving a $300 weekly federal payment on top of state benefits that average about $320 a week, the retroactive aid could result in significant lump sum payments. The department estimates that states won’t be able to update their jobless benefit systems to include the new criteria until late March, which could mean that the first payments would amount to about four months of benefits.
Workers whose employers have closed because of the pandemic are already eligible to receive jobless aid from the federal program. But workers who were laid off even as their company remained open, such as waiters at a restaurant that stayed open for delivery, weren’t eligible. This directive will now cover those workers, the Labor Department said.
For the unemployed who have turned down jobs out of concern over the coronavirus, applicants will have to state under penalty of perjury that their prospective employer wasn’t meeting state or local guidelines on mask-wearing or personal protective equipment, said Suzi Levine, a deputy assistant labor secretary.
TORONTO, Feb. 25, 2021 /CNW/ – The Gig Workers United campaign launched today with a bold scope and agenda for change. Delivery workers say the status quo is simply unsafe and unliveable for those whose jobs are controlled by apps. The workers have come together to call on employers and legislators to make fundamental changes.
“We have to stand up for ourselves – the streets don’t look out for us, the apps don’t look out for us, so we’re looking out for each other and collectively calling out a bad business model,” says Narada Kiondo, one of the courier spokespersons. “The way it is just can’t continue – if the gig economy is going to work for our society than it can’t be based on squeezing delivery workers and restaurants for profit, and dodging our labour standards. And we’re going to persist, and we’ll win, because our bodies and our livelihoods are on the line.”
The roots of this struggle are in experiences including the successes of Justice for Foodora Couriers, which showed over the last two years that collective action in the gig economy is possible, that victories are there to be won, and that the organizing campaign itself makes a real difference in workers’ lives. One year ago, the couriers won the legal right to join a union, and the vast majority voted yes.
Foodora, the employer that was the target of that struggle, is no longer operating in Canada, so the workers have broadened their scope in a new drive to organize delivery workers for all the apps. Working conditions, health issues and risks are common, and many couriers work for multiple apps. Now there is a common home for them to work collectively on their demands.
Jan Simpson, National President, spoke about how CUPW has welcomed the delivery workers into the organization: “The couriers have shown that traditional union organizing is possible in this space. But they’ve gone farther than that, with community-organizing tactics and collective mutual aid. They’ve formed a worker-led organization that we’re proud to support because their fresh energy and ideas are what it takes to improve working conditions and reject silicon valley’s model of exploitation.”
“Our demands are reasonable but our vision is big,” says Arash Manouchehrian, another courier. “We need liveable wages, and transparency on wages and scheduling. We need health and safety protections, we need bathroom access, warm-ups, breaks, all the things that most of our society expects as basics for all workers. We have rights, and it’s up to us to assert those rights until we get the system fixed.”
SOURCE Canadian Union of Postal Workers
For further information: please contact CUPW communications at [email protected] or 613-882-2742
James Yang is still angry over the road deaths of five colleagues at work who suffered the same pressure he felt as a food delivery driver.
The Chinese migrant worked for Hungry Panda but says the company booted him off the app after raising concerns about conditions.
Mr Yang earned as little as $12.50 an hour working 12-hour days.
He and fellow gig economy workers met with politicians at federal parliament on Thursday, campaigning for the same rights afforded to other workers.
Labor leader Anthony Albanese believes gig workers should be given the minimum wage and greater scope to access other base employment standards.
He urged the Morrison government to stand up to Uber and Hungry Panda in the same way it took on tech giants over the news media bargaining code.
“What we can’t have is a circumstance whereby we have two industrial relations systems,” Mr Albanese said.
“One that has pay, one that has annual leave, sick leave, one that has conditions that most Australians take for granted, and another whole section of society who are marginalised, who don’t enjoy any minimum wage.”
Industrial Relations Minister Christian Porter said he had a great deal of sympathy for Mr Yang but he’s not going to tell him there’s an easy fix.
He said the Fair Work Commission had consistently ruled gig workers were contractors and not subject to the same conditions as employees.
Mr Porter said media code negotiations with Facebook and Google were years in the making after a consumer watchdog inquiry.
He noted the cost to business of changing the gig model and impact on consumer pricing as key complexities in regulating the sector.
Rideshare driver Malcolm McKenzie said gig workers didn’t have the same avenues to pursue unfair dismissal.
“Drivers face the possibility of termination through the app as a result of a fallacious claim against them, unsubstantiated claim against them,” he said.
Delivery driver Ashley Moreland said he faced losing his job if orders weren’t met on the company’s timeline.
“It really is time that laws caught up to the technology and that we brought some rights to this industry,” he said.
“Because I think it’s a bit of a shame that in a modern developed democracy, we have this situation of third world work.”
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