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Should Uber drivers be paid for ‘on call’ time while using the online app? Not ruled out

By Robert Margolis, J.D.

The FLSA’s “on call” principles may extend to the “gig” economy, a federal district court in Pennsylvania has found, permitting a putative class of Uber drivers to proceed with their claims for compensation for their time spent “on call” when they are online using Uber’s app. Finding there are disputed material facts as to whether the drivers are “working” when online and using the Uber app, the court denied Uber’s motion for partial summary judgment without prejudice, with leave to refile it after discovery is completed (Razak v. Uber Technologies, Inc., September 13, 2017, Baylson, M.).

On-app. The drivers sued Uber on behalf of a putative class of “[a]ll persons who provided limousine services, now known as UberBLACK, through Defendants’ App in Philadelphia, Pennsylvania.” They claim that Uber violates the FLSA’s minimum wage and overtime requirements and Pennsylvania wage law by not compensating them for time they are online using the Uber app but not actually transporting riders. For purposes of its decision, the court assumed that the drivers qualify as “employees” and Uber as an “employer” under the FLSA, though that disputed question has not been resolved and discovery on that issue has been stayed in the case.

In a prior order, the court denied Uber’s motion to dismiss the drivers’ overtime claims, finding that the drivers sufficiently alleged they were online using the Uber app for more than 40 hours per week. The court also found, however, that whether time spent online was actually compensable under the FLSA was a potentially dispositive question. Thus, it ordered the parties to engage in expedited discovery on that issue, after which Uber brought its partial summary judgment motion.

On-point. Uber argued that the facts here don’t fit the on-call model. In the typical on-call case, the employer requires an employee to be available on call during a specified time “and to complete a task for the employer upon the employer’s command or call.” Here, however, as the drivers concede, “they could go offline whenever they chose to do so.” But the drivers countered Uber’s interpretation leads to a result that “no online time is compensable” because “even if their drivers are employees, they can refuse work.”

The court was “reluctant to make any definitive legal rulings regarding the compensability of time spent Online on Uber’s unique technology,” it said, noting that the issue was potentially “intertwined” with the unresolved question of whether Uber drivers are employees. Nonetheless, it examined the applicable DOL regulations, circuit court precedent in FLSA “on call” cases, as well as several district court decisions in cases brought by Uber drivers—in particular, Yucesoy v. Uber Techs., Inc. and O’Connor v. Uber Techs., Inc.—to conclude that the “on-call” framework applies to Uber drivers.

On-call? Though the non-Uber cases were of limited relevance factually, those cases and the Uber cases identify the most important fact issues for resolving the on-call compensability question: “what ability drivers have to conduct personal business” while online using the Uber app, or the extent to which the employee’s ability to engage in personal activities is restricted, such that the time is considered ‘predominantly’ for the benefit of the employer rather than the employee.”

Four facts relevant to that question precluded the court from finding as a matter of law that the drivers’ time is not compensable: (1) drivers have no more than 15 seconds to accept a rider’s trip request which, if not accepted, is deemed rejected: (2) three consecutive rejected trip requests leads the Uber app to automatically switch the driver from online to offline, where drivers cannot accept ride requests; (3) the driver does not know the rider’s destination until the rider’s trip begins, which means the driver does not know before accepting if it will be a short ride or very long, which affects compensation and possibly personal activities; and (4) drivers may only advance in the queue at the airport or train station if within a certain zone, and may only accept trip requests at the airport if inside the west parking lot. These facts suggest that drivers must be continually tethered to their phones and their ability to engage in personal activities is restricted while online using the Uber app, according to the court.

Because it could not conclude that the drivers’ online time is not compensable as a matter of law, the court denied Uber’s summary judgment motion on this issue. The question should be resolved at trial, according to the court.