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Friday, March 4, 2016

UPDATED: Another Uber Driver Awarded Unemployment Benefits

Posted By on Fri, Mar 4, 2016 at 1:17 PM

  • Flickr/Jason Tester
This post has been updated. 

A former Uber driver from the San Diego area has successfully applied for unemployment benefits with the state of California, SF Weekly has learned.

The case of driver Patrick Ely appears to be the first known instance in which the is one of a few known examples in which the Employment Development Department recognized an Uber driver as an employee (independent contractors do not receive unemployment benefits), and has potential ramifications for an upcoming trial over whether the $65 billion company's driver "partners" are employees or independent contractors.

And ahead of the landmark trial, scheduled to start in June, the state appears prepared to classify more Uber drivers as employees. When Ely filed for unemployment, the EDD gave him a questionnaire tailored specifically to Uber drivers, a copy of which was provided to SF Weekly.

click to enlarge Former Uber driver Patrick Ely's unemployment award. - COURTESY PATRICK ELY
  • Courtesy Patrick Ely
  • Former Uber driver Patrick Ely's unemployment award.

Neither Uber nor the EDD immediately responded to requests for comment Friday.

Ely was semi-retired when he started driving for Uber about 19 months ago, when the company expanded to the San Diego area with promises of "$42 an hour plus tips" for drivers, he said Friday.

At first, he was netting about $1,100 a week — after Uber fees, but before taxes — for workweeks averaging 60 to 70 hours.

But earlier this year, when Uber slashed its rates, his earnings plummeted to $500 a week for driving the same hours. And at times, when driving 12 to 15 miles to pick up passengers who then only traveled a few blocks, "I was losing money," he said. "I was basically an Uber charity."

Uber requires drivers to accept a certain amount of ride requests — as high as 90 percent — or have their access to the app deactivated. Ely also saw his driver rating plummet after he stopped providing water and snacks to his fares, he said.

When he complained to the company, Uber representatives told him they could do nothing, Ely said. When he and 30 other drivers filed suit against the company on Feb. 3, alleging violations of the California Labor Act, Ely found his access to the Uber app deactivated. Uber claimed it was because of a moving violation, but that moving violation was on his record before he started driving for the company, Ely said.

That could be classified as retaliation, but that has yet to be determined. After he was kicked off the service, Ely went ahead and filed for unemployment benefits with the EDD. The EDD in response sent him a 10-page questionnaire, tailored for UberX drivers, that asked him to outline his relationship with the company.

Uber employment Relationship Questionnaire (1)

After filling out the form and undergoing a brief telephone interview with the company, Ely was awarded about $350 a week in unemployment, according to documents provided by him and his San Francisco-based attorney, Mark Burton.

And while the California Labor Commission ruled last summer that a single Uber driver was an employee, "as far as we know, this is the very first unemployment award" to a former Uber driver, Burton said Friday.

The key to Ely winning unemployment is the amount of control Uber had over his work, Burton said. "And the most important factor in control is whether they can get rid of you at any time, just like an employee."

"That was the whole basis of this claim: are you going to be forced to pick up rides under the threat of being fired?" Burton added. "Are you being forced to lose money driving for them after they adjusted the rates? If you have no control over that, then OK — you're an employee."

Burton is representing other Uber drivers, past and current, whose employment status is subject to an upcoming decision by an arbitrator, former San Francisco Superior Court Judge Richard Kramer. (The arbitration decision is separate from the trial in the class-action lawsuit.)

Arbitration may be a better route than class-action suits. Burton presented the case of the FedEx drivers who sued, claiming employment status. That lawsuit, filed a decade ago, has been locked in appeals, and might not result in any award for drivers for a few more years.

We'll update this post if and when we hear back from the EDD or Uber.
UPDATE: An Uber spokeswoman helpfully pointed us to an earlier decision in which the company unsuccessfully fought a determination that a driver was an employee and was awarded EDD benefits. Uber spokeswoman Laura Zapata claimed that the decision is not "precedent setting"; however, the EDD's use of a form tailored to ex-Uber drivers seems to tell a different story. 
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About The Author

Chris Roberts

Chris Roberts has spent most of his adult life working in San Francisco news media, which is to say he's still a teenager in Middle American years. He has covered marijuana, drug policy, and politics for SF Weekly since 2009.

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