If you have read my blog before you know I have written about the woes of Uber in the past. They are the standard bearer for the “gig” economy. However, a number of people who could not abide by the being independent contractors have sued to be considered “employees” rather than independent contractors.Numerous suits have been filed and are on-going. One such suit in Pennsylvania even is suing Uber for “on-call” pay, which the drivers claim while they car logged in to the Uber application.
According to attorney Malcolm Ingram, in the blog the HR Legalist:
“…the drivers alleged that Uber violated the Fair Labor Standards Act (“FLSA”) by misclassifying them as independent contractors and failing to pay them minimum wage and time-and-a-half overtime for hours worked over 40 per week. Plaintiffs also argued that their time spent “on call” when logged into the Uber application is work time and therefore compensable. Plaintiffs advanced this argument despite admitting that they conducted numerous personal activities while logged into the application while driving without Uber passengers, including: running errands, taking smoke breaks, and accepting personal phone calls.”
I am not sure where they are coming from. The USDOL, in Fact Sheet #22 it explains:
An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.
Under this definition, and with the admissions of the Uber drivers as stated above, if I were a juror on that jury these suing drivers would not be winning their case. I often wonder if the drivers who have brought these suits were the unsuccessful ones, the ones that could not make a decent living as an independent contractor and thus felt that they needed a job? Maybe they even need a union in order to be protected from their lack of good work habits and practices?
The concept of a “gig”
The whole concept of the “gig” economy is set aside by these lawsuits. The “on-call ” time these people want to claim is the flexibility that many other would love to have in their lives. It may have even been one of the things that were attractive to these drivers in the first place. If I were Uber these people would not be getting any work. Of course, they would then sue for retaliation.