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Uber drivers are not employees, Florida unemployment agency finds

By Lisa Milam-Perez, J.D.

“Uber is no more an employer to drivers than is an art gallery to artists,” according to the Florida Department of Economic Opportunity (DEO), which ruled that drivers for the ubiquitous “app” are not employees and, as such, are ineligible for unemployment benefits. The state agency was unpersuaded by alternate findings issued by its counterparts in California (in Berwick v Uber Technologies, Inc.) and Oregon (in an advisory opinion issued by the state Bureau of Labor and Industries), which concluded that drivers had an employment relationship with the technology companies. “The technology is novel and the economic transformation is important,” wrote Jesse Panuccio, the DEO’s executive director, “but the law is straightforward. The transportation providers at issue here were independent contractors, not employees, of Uber.”

Reversing two state department of revenue determinations that Uber drivers were employees of a wholly owned Uber subsidiary in the state and thus entitled to reemployment assistance, the DEO found that the drivers have significant control over their work; they drive their own cars, set their own hours, and decide which customers they will serve. They also are free to work for Uber’s competitors. “As a matter of common sense, it is hard to imagine many employers who would grant this level of autonomy to employees.” On these facts, Uber is less an “employer” than a “middleman,” and, under Florida’s common-law rules for determining employment status, no such relationship existed here.

The contrary determinations on the left coast “largely ignore the contract” between Uber and the drivers, which “could not be more straightforward,” the DEO said, noting that “some jurisdictions may breeze past contract language in determining employment status,” but not so in Florida. Moreover, the actual practice of the parties did not belie their agreement. The DIR and BOLI also misconstrued the parties’ actual course of dealing, according to Panuccio. “[T]hese rulings appear to rest on the fact that Uber could not be in business without drivers,” according to the DEO. “But the same is true of all middlemen.”

As the DEO saw it, the rise of the “sharing” economy, as reflected most vividly in these newly exploded ride-sharing platforms, is “helping people pursue what has always been an important part of the American dream: to be one’s own boss.” He added: “Technological advances are opening up that dream to many more people, and we should not malign (or perhaps, misclassify) that trend as worker misclassification.” In any event, the “boss” isn’t entitled to unemployment—at least not in Florida.