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SHANNON LISS-RIORDAN, pro hac vice


(sliss@llrlaw.com)
BENJAMIN J. WEBER, pro hac vice
(bweber@llrlaw.com)
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone:
(617) 994-5800
Facsimile:
(617) 994-5801
MATTHEW CARLSON (SBN 273242)
(mcarlson@carlsonlegalservices.com)
Carlson Legal Services
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone:
(415) 817-1470

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UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF CALIFORNIA

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DOUGLAS OCONNOR, THOMAS


COLOPY, MATTHEW MANAHAN, and
ELIE GURFINKEL, individually and
on behalf of all others similarly situated,

Case No. CV 13-3826-EMC

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Plaintiffs,

PLAINTIFFS OPPOSITION TO
DEFENDANT UBER TECHNOLOGIES,
INC.S MOTION FOR SUMMARY
JUDGMENT

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v.

Judge: Hon. Edward M. Chen

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UBER TECHNOLOGIES, INC,

Date: January 29, 2014


Time: 1:30 PM

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Defendant.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR


SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

TABLE OF CONTENTS

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I.

INTRODUCTION ..................................................................................................................1

II.

STATEMENT OF FACTS .................................................................................................... 2

A. Uber Has The Right To Control The Manner and Means of Drivers' Work. .................. 3

a.

Uber Monitors Its Drivers Performance And Exercises Its Discretion To


Discipline Or Terminate Drivers Who Do Not Meet Its Standards. .................. 3

b.

Drivers Form An Integral And Indistinct Part of Uber's Business. .................... 6

c.

Uber Directs And Controls Its Drivers Work. .................................................. 7

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d.

Uber Enforces Its Driver Requirement To Promote Its Brand . ......................... 7

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E.

Drivers Do Not Need Special Skills To Perform Their Work. .......................... 8

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f.

Uber Provides Drivers With Instrumentalities To Perform Their Work. ........... 8

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g.

Uber Unilaterally Determines Drivers Compensation, Method Of


Payment, And Specifications And Standards For Their Vehicles. ..................... 9

h.

Plaintiffs Work For Uber. ............................................................................... 10

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III.

ARGUMENT ........................................................................................................................11

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A. Standard Of Review. ...................................................................................................... 11

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B. Drivers Perform Services For Uber. .............................................................................. 12

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C. Drivers Are Employees Under The Industrial Welfare Commission Test (IWC) Set
Forth In Martinez v. Combs. .......................................................................................... 13

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D. Drivers Are Employees Under Borello. ......................................................................... 15

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i.

Uber Has The Right To Control The Manner And Means Of Drivers Work. 15

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ii.

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That Drivers Have Some Freedom In Conducting Their Work Is Not


Dispositive Where Uber Exercises All Necessary Control Over The
Operation. ......................................................................................................... 18

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iii. Borellos Secondary Factors Support A Finding Of Employment Status. ....... 20

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iv. Ubers Own Characterization Of Its Relationship With Drivers Is Irrelevant


Where The Facts Show That Drivers Are Employees Of Uber. ...................... 26
E. The Fact That Some Drivers Contract With, And Drive For, Uber Through
Intermediary Transportation Companies That Lease Them Vehicles Does Not Mean
That Uber Is Not Their Employer. ................................................................................. 27

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IV. CONCLUSION .....................................................................................................................30

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TABLE OF AUTHORITIES
Cases

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Air Couriers Int'l v. Employment Dev. Dep't,


150 Cal. App. 4th 923 (2007) ............................................................................................ passim
Alatraqchi v. Uber Technologies, Inc., et al.,
CGC-13-527887 (Cal. Super. Ct. filed Jan. 10, 2013).............................................................. 12
Alexander v. FedEx Ground Package Sys., Inc.,
765 F.3d 981 (9th Cir. 2014) ............................................................................................. passim
Antenor v. D & S Farms,
88 F.3d 925 (11th Cir. 1996) .............................................................................................. 28, 29
Arnold v. DirecTV, Inc.,
2011 WL 839636 (E.D.Mo. Mar. 7, 2011) ................................................................................. 3
Arzate v. Bridge Terminal Transport, Inc.,
192 Cal. App. 4th 419 (2011) ................................................................................................... 22
Ayala v. Antelope Valley Newspapers, Inc.,
59 Cal. 4th 522 (2014) ....................................................................................................... passim
Barfield v. New York City Health & Hospitals Corp.,
537 F.3d 132 (2d Cir. 2008) ..................................................................................................... 29
Beliz v. W.H. McLeod & Sons Packing Co.,
765 F.2d 1317 (5th Cir. 1985) .................................................................................................. 28

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Boston Cab Dispatch, Inc. v. Uber Technologies, Inc.,


2014 WL 1338148 (D. Mass. Mar. 27, 2014)............................................................................. 2
Carrillo v. Schneider Logistics Trans-Loading & Distribution, Inc.,
2014 WL 183956 (C.D. Cal. Jan. 14, 2014) ....................................................................... 28, 29
Castillo v. Givens,
704 F.2d 181 (5th Cir. 1983) .................................................................................................... 28

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Chaves v. King Arthur's Lounge,


2009 WL 3188948 (Mass. Super. July 30, 2009) ..................................................................... 27
Clincy v. Galardi S. Enterprises, Inc.,
808 F. Supp. 2d 1326 (N.D. Ga. 2011) ..................................................................................... 25

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Coverall North America, Inc. v. Division of Unemployment Assistance,


447 Mass. 852 (2006) ............................................................................................................... 22
Craig v. FedEx Ground Package Sys., Inc.,
2014 WL 4933044 (Kan. Oct. 3, 2014) ...................................................................................... 2
Davis v. Four Seasons Hotel Ltd.,
810 F. Supp. 2d 1145 (D. Haw. 2011) ........................................................................................ 3
Dynamex Operations W., Inc. v. Superior Court,
2014 WL 5173038 (Cal. Ct. App. Oct. 15, 2014)............................................................... 13, 15
Elms v. Renewal by Andersen,
96 A.3d 175 (Md. 2014) ............................................................................................................. 2
Estate of Perry v. Green Card, Inc.,
2006 WL 3479056 (R.I. Super. Nov. 30, 2006) ....................................................................... 16

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Estrada v. FedEx Ground Package Sys., Inc.,


154 Cal. App. 4th 1 (2007) ................................................................................................ passim
Fanette v. Steven Davis Farms, LLC,
2014 WL 2961239 (N.D. Fla. July 1, 2014) ............................................................................. 28
FedEx Home Delivery v. National Labor Relations Board,
563 F.3d 492 (D.C. Cir. 2009) .................................................................................................. 22

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Gauntlett v. Illinois Union Ins. Co.,


2012 WL 4051218 (N.D. Cal. Sept. 13, 2012) ......................................................................... 11
Grant v. Woods,
71 Cal. App. 3d 647 (Ct. App. 1977) ........................................................................................ 25
Guerrero v. Superior Court of Sonoma Cnty.,
2013 WL 1148897 (Cal. Ct. App. Feb. 11, 2013) .................................................................... 14

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Guifu Li v. A Perfect Day Franchise, Inc.,


281 F.R.D. 373 (N.D. Cal. 2012) .......................................................................................... 4, 28
Harlick v. Blue Shield of California,
686 F.3d 699 (9th Cir. 2012) .................................................................................................... 12
Jenks v. D. & B. Corp.,
2011 WL 3930190 (Mass. Super. Aug. 24, 2011) .................................................................... 27
Jenson v. Eveleth Taconite Co.,
139 F.R.D. 657 (D. Minn. 1991) .............................................................................................. 25

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JKH Enterprises, Inc. v. Dep't of Indus. Relations,


142 Cal. App. 4th 1046 (2006) ........................................................................................... 19, 23
JustMed, Inc. v. Byce,
600 F.3d 1118 (9th Cir. 2010) .................................................................................................. 16
Kubinec v. Top Cab Dispatch, Inc.,
2014 WL 3817016 (Mass. Super. June 25, 2014) .................................................................... 13
Malloy v. Fong,
37 Cal.2d 356 (1951) ................................................................................................................ 15
Martin v. Tango's Rest., Inc.,
969 F.2d 1319 (1st Cir. 1992) ................................................................................................... 26
Martinez v. Combs,
49 Cal. 4th 35 (2010) .......................................................................................................... 13, 28

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Martins v. 3PD, Inc.,


2013 WL 1320454 (D. Mass. Mar. 28, 2013)..................................................................... 13, 27
Matamoros v. Starbucks Corp.,
699 F.3d 129 (1st Cir. 2012) ..................................................................................................... 26
McLaughlin v. Seafood, Inc.,
861 F.2d 450 (5th Cir. 1988) .................................................................................................... 21

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Messenger Courier Ass'n of Americas v. California Unemployment Ins. Appeals Bd.,


175 Cal. App. 4th 1074 (2009) ................................................................................................. 14
Narayan v. EGL, Inc.,
616 F.3d 895 (9th Cir. 2010) ........................................................................................ 11, 22, 23
Oyarzo v. Tuolumne Fire Dist.,
2013 WL 5718882 (E.D. Cal. Oct. 18, 2013) ........................................................................... 26

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Preston v. Settle Down Enters., Inc.,


90 F. Supp. 2d 1267 (N.D. Ga. 2000) ....................................................................................... 29
Rainbow Development, LLC v. Com., Dept. of Industrial Accidents,
2005 WL 3543770 (Mass. Super. Ct. 2005) ............................................................................. 12
Randolph v. Budget Rent-A-Car,
97 F.3d 319 (9th Cir. 1996) ...................................................................................................... 14
Rios v. Airborne Express, Inc.,
2006 WL 2067847 (N.D. Cal. July 24, 2006)........................................................................... 28

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Ruiz v. Affinity Logistics Corp.,


754 F.3d 1093 (9th Cir. 2014) ............................................................................................ 20, 22
S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations,
48 Cal. 3d 341 (1989) ..................................................................................................... 1, 19, 26
Sakacsi v. Quicksilver Delivery System, Inc.,
2007 WL 4218984 (M.D. Fla. Nov. 28, 2007) ......................................................................... 24
Sales v. Bailey,
2014 WL 3897726 (N.D. Miss. Aug. 8, 2014) ................................................................... 16, 23
Santa Cruz Transp., Inc. v. Unemployment Ins. Appeals Bd.,
235 Cal. App. 3d 1363 (Ct. App. 1991) .................................................................................... 12
Sara M. v. Superior Court,
36 Cal. 4th 998 (2005) .............................................................................................................. 12

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Schwann v. FedEx Ground Package System, Inc.,


2013 WL 3353776 (D. Mass. July 3, 2013).............................................................................. 27
Sebago v. Tutunjian,
85 Mass. App. Ct. 1119 (2014) ................................................................................................. 13
Slayman v. FedEx Ground Package Sys., Inc.,
2014 WL 4211422 (9th Cir. Aug. 27, 2014) .............................................................................. 2

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Smith v. Cardinal Logistics Mgmt. Corp.,


2008 WL 4156364 (N.D. Cal. Sept. 5, 2008) ........................................................................... 14
Solis v. Intl Detective & Protective Serv., Ltd.,
819 F. Supp. 2d 740 (N.D. Ill. 2011) ........................................................................................ 16
Tapager v. Birmingham,
75 F. Supp. 375 (N.D. Iowa 1948)............................................................................................ 17

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Terry v. Sapphire Gentlemen's Club,


336 P.3d 951 (Nev. 2014) ............................................................................................... 2, 19, 21
Tieberg v. Unemployment Ins. App. Bd.,
2 Cal. 3d 943 (1970) ..................................................................................................... 15, 16, 24
Tony & Susan Alamo Found. v. Sec'y of Labor,
471 U.S. 290 (1985) .................................................................................................................. 26
Varisco v. Gateway Sci. & Eng'g, Inc.,
166 Cal.App.4th 1099 (2008) ................................................................................................... 23

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Yellow Cab Coop., Inc. v. Workers' Comp. Appeals Bd.,


226 Cal. App. 3d 1288 (Ct. App. 1991) .................................................................................... 12

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Statutes

Cal. Code Regs. Tit. 8 11090 ..................................................................................................... 13

Cal. Lab. Code 2802 ............................................................................................................ 13, 14

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Other Authorities

David Weil, Enforcing Labour Standards in Fissured Workplaces: The US Experience,


22 Econ. & Lab. Rel. Rev. 2 (July 2011).................................................................................. 30

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David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What
Can Be Done to Improve It (Harvard Univ. Press, Feb. 3, 2014)............................................. 30

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

I.

INTRODUCTION
Defendant Uber Technologies Inc. (Uber) is a car service established in 2010 in

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California,1 which engages thousands of drivers across the state of California to transport riders

through its UberBlack, UberSUV, and UberX services. Uber requires its drivers to pass

background checks, to accept a certain percentage of ride requests, to maintain high levels of

customer satisfaction, and in some cases to pass tests on city knowledge and professionalism. If

a driver fails to meet all these requirements, or engages in behavior Uber does not deem

appropriate, Uber reserves the power to unilaterally, and in its own discretion, suspend their

ability to drive or to terminate them permanently by deactivating their account.2 Although

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Uber requires drivers to abide by its exacting policies and procedures, Uber disclaims any

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employment relationship with drivers, instead classifying them as independent contractors.

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While Uber attempts to mask the reality of its employment relationship with drivers like

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Plaintiffs, courts have repeatedly held that [t]he label placed by the parties on their relationship

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is not dispositive, and subterfuges are not countenanced. Alexander v. FedEx Ground Package

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Sys., Inc., 765 F.3d 981, 989 (9th Cir. 2014). Instead, the Court must look to the economic

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reality of the relationship between the parties, with the principal focus on the the right to control

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the manner and means of the work being performed. S. G. Borello & Sons, Inc. v. Dep't of

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Indus. Relations, 48 Cal. 3d 341, 350 (1989) (internal quotation omitted); see also Ayala v.

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Antelope Valley Newspapers, Inc., 59 Cal. 4th 522, 531-32 (2014).3 Here, there can be no doubt

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Declaration of Shannon Liss-Riordan, Exhibit 1, at 1068 (We are Everyones Private


Driver. We are Uber and were rolling out a transportation system in a city near you.). All
exhibits cited herein are to the Liss-Riordan Declaration and hereinafter will be cited as Ex.
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Uber refers to termination as deactivation which means a driver can no longer access
their account and can no longer drive for Uber. Ex. 2 at 102:18-104:3.
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Plaintiffs note that this Court dismissed Plaintiffs claims against Uber founder and
President Travis Kalanick and Vice President Ryan Graves, without prejudice, in recognition of
the fact that these claims could possibly be cured by additional factual allegations. See Dkt. 58
at 29-30. Plaintiffs have attempted to pursue discovery regarding these individuals involvement
in formulating the policies and making decisions at issue in this case, which Uber has so far
resisted. However, discovery is ongoing in this case, and Plaintiffs intend to continue to pursue
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that Uber controls the manner and means of its drivers work.4

II.

STATEMENT OF FACTS

In its own words, Uber is an on-demand car service, that has described itself to the public

as your on-demand private driver. Ex. 3 at 901; Ex. 4 at 889; Ex. 5; Ex. 6 at 3482 (Uber . . .

provides fast and reliable transportation at the touch of a button. Our tagline and vision is to be

Everyones Private Driver.)5 To use Uber, a rider hails a driver by using the Uber App on their

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(footnote continued from previous page)


this discovery. Thus, assuming the Court denies Ubers motion for summary judgment,
Plaintiffs may still move to add these individuals back into the case as defendants.
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Plaintiffs submit that drivers are Ubers employees as a matter of law. Indeed, many
courts around the country have been deciding the question of whether a worker is properly
classified as an employee or independent contractor as a matter of law, rather than leaving this
question to a jury, under a number of different tests. See, e.g., Alexander, 765 F.3d 981 (holding
drivers are employees as a matter of law under California's right-to-control test); Slayman v.
FedEx Ground Package Sys., Inc., 2014 WL 4211422, *13 (9th Cir. Aug. 27, 2014) (holding
drivers are employees a matter of law under Oregon's right-to-control and economic-realities
tests); Craig v. FedEx Ground Package Sys., Inc., 2014 WL 4933044, *8, *28 (Kan. Oct. 3,
2014) (finding drivers are employees as a matter of law under a 20factor test); Elms v.
Renewal by Andersen, 96 A.3d 175, 181 (Md. 2014) (finding [a]s a matter of law, that window
installer was an employee for purposes of workers compensation under a common law test);
Terry v. Sapphire Gentlemen's Club, 336 P.3d 951, 958-60 (Nev. 2014) (holding that exotic
dancer were employees as a matter of law). Plaintiffs intended to argue this fact in their own
motion for summary judgment, but the Court ruled that it would not entertain such a motion at
this time. See Dkt. 176. Nonetheless, Plaintiffs maintain that drivers are employees as a matter of
law and therefore this Court must deny Ubers motion for summary judgment.
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Recently Uber has tried to re-characterize itself as a technology company that connects
riders and drivers rather than a transportation service, Ex. 2 at 40:22-41:14. However, these
semantic efforts are disingenuous and cannot obscure the truth. For example, Uber frequently
compares itself to taxi companies in its advertising. See Ex. 7; Ex. 8 at 1070 (noting Uber is
50% cheaper than a taxi); Ex. 9 at 1077 ([D]rivers on Uber make more money than with
taxi company). See also Ex. 10 (advertising for drivers under the transportation jobs section
of Craigslist). Moreover, the California Public Utilities Commission (CPUC) has determined
that Uber is a Transportation Network Company (TNC), which it defines as an organization
operating in California that provides prearranged transportation services for
compensation Ex. 11 at 1043 (emphasis added). Likewise, a federal court in Massachusetts
found that, in a case against Uber brought by taxi companies, there was sufficient evidence that
Uber exercises control over (or is in charge of) vehicles-for-hire that the plaintiffs unfair
competition claims could survive a motion to dismiss. Boston Cab Dispatch, Inc. v. Uber
Technologies, Inc., 2014 WL 1338148, *6 (D. Mass. Mar. 27, 2014). The court rejected Ubers
argument that any unlawful conduct is attributable only to drivers and not Uber in light of the
fact that Uber sets policies that those drivers follow Id., *7.

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phone, and the on-duty Uber driver that is nearest to them is notified. Ex. 2 at 209:8-210:1. The

driver is able to see where the passenger wants to be picked up but has no information about

where they are going. Ex. 12 at 75:22-76:18. Thus, a driver cannot decide to decline a ride based

on where a passenger is going. If the driver accepts the ride and then cancels upon learning of

the passengers destination, the driver can be subject to termination. Ex. 48A.

Once the driver accepts the request by tapping a button on their phone, they drive to the

passengers pick-up location and tap another button to indicate they are arriving. Ex. 13 at 3421.

The driver then picks up the passenger and hits a button to Begin Trip, drives the passenger to

their destination, and hits another button to End Trip when they have reached the passengers

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destination. Id. Uber collects the payment from the passenger, takes its fee, and then distributes

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the drivers share to the driver. Ex. 2 at 188:12-21. Drivers are paid via direct deposit to their

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bank account on a weekly basis every Thursday for the period covering the previous Monday at

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4 a.m. until the following Monday at 4 a.m. Ex. 14 at 930. Uber determines the amount of the

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fares, and drivers have no ability to negotiate their own pay with customers or with Uber. Ex. 2

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at 165:2-21, 167:20-168:7.
A. Uber Has the Right to Control the Manner and Means of Drivers Work.

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a. Uber Monitors its Drivers Performance and Exercises its Discretion to


Discipline or Terminate Drivers Who Do Not Meet Its Standards.

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Uber carefully monitors and controls drivers performance. Indeed, Ubers agreements with

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UberX drivers like Gurfinkel and Manahan clearly state that [t]he Company reserves the right to

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withhold or revoke its approval and authorization of any Driver at any time, in its sole and

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unreviewable discretion. Ex. 15 at 1683-84.6 Likewise, Ubers agreement with UberBlack

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UberX drivers contract through Uber subsidiary, Rasier LLC, which is another legal
entity within Uber. Ex. 2 at 174:13-175:6. However, Uber is still the employer of UberX
drivers notwithstanding the fact that their contracts are with Rasier. Arnold v. DirecTV, Inc.,
2011 WL 839636, at *6 (E.D.Mo. Mar. 7, 2011) (upholding FLSA claims against parent
company where plaintiffs had to wear DirecTV uniforms and display DirecTV magnets
on their vehicles.); Davis v. Four Seasons Hotel Ltd., 810 F. Supp. 2d 1145, 1158-59 (D.
Haw. 2011) (rejecting Four Seasons argument that other entities were food servers employer
because [a]lthough additional entities may be involved in the operation of [] resorts and may
also have or have had power to control the Plaintiffs as banquet servers, a worker may be
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drivers such as Colopy and OConnor states that Uber may terminate this Agreement

automatically, without any notice requirement, at such moment when the Transportation

Company and/or its Drivers no longer qualifies, under the applicable law or the quality standards

of Uber, to provide the Driving Service or to operate the Vehicle. Ex. 16 at 1147.7

Uber informs its drivers that it look[s] at various metrics to evaluate drivers, such as their

acceptance rate, cancellation rate, how consistently a driver meets their estimated time of arrival,

and the drivers vehicle quality and customer ratings. Ex. 17. Drivers also receive customer

ratings in the form of star ratings at the end of every trip. Id. These ratings are out of 5 stars,

with 5 stars being the highest rating and 1 star being the lowest. Id. Uber utilizes this real-time

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feedback about drivers to monitor drivers and decide when a driver may need to be terminated.

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Id. Whether a driver will be suspended or deactivated based on a particular star rating is subject

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to the Uber city managers discretion, and standards vary by city and location and may even

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change week to week. Ex. 2 at 116:12-119:18; 242:5-18; Ex. 48B (showing Ubers standard

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changed from a minimum 4.7 to 4.75 star rating in a three-week period in San Francisco); Ex. 17

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at 4 (listing a minimum rating of 4.6), Ex. 48C at 948 (showing a minimum rating of 4.55). Uber

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also exercises discretion when determining whether to give drivers a second chance or to

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permanently terminate them, in some instances requiring a driver to take a class8 or asking a

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(footnote continued from previous page)


employed by more than one entity at the same time); Guifu Li v. A Perfect Day Franchise, Inc.,
281 F.R.D. 373, 400 (N.D. Cal. 2012) (A fundamental principle behind the joint employment
doctrine is that a worker may be employed by more than one entity at the same time).
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Some drivers (such as Manahan and Gurfinkel) contract directly with Uber, while others
(such as Colopy and OConnor) work through intermediary transportation companies, which
Uber sometimes refers to as Uber partners (although drivers who work through transportation
companies also have their own contracts directly with Uber, see, e.g., Ex. 16). Regardless of
whether a driver works directly for Uber or works through a transportation company, Uber still
retains the same authority to screen and reject applicants and fire drivers in its discretion, and the
transportation companies merely act as pass-throughs for payment. Ex. 2 at 33:4-36:2. The
drivers working through transportation companies still receive, directly from Uber, their weekly
ratings, constant suggestions of how they could be doing a better job, as well as warnings
about deactivation, and deactivations. Ex. 19 at 181:3-12.
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Many drivers have been referred to training classes conducted by third-parties like 7 x 7
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driver to reflect on how [they] will [] improve and why they deserve another chance. See

Ex. 48D at 979-80; Ex. 48E at 1003-1006; 49B; Ex. 48G.

Drivers also constantly receive emails from Uber, advising them about how to improve their

ratings (so as not to be deactivated) or where to locate themselves to get customers, and warning

them if they are at risk of suspension or deactivation for various reasons, including customer

complaints, low customer ratings, cancelling too many rides, or for failing to accept enough rides

while on-duty. See Ex. 48F, Ex. 48H, Ex. 48C, Ex. 48D, Ex. 48E, Ex. 48I, Ex. 48J, Ex. 48K.

Uber often refers drivers to training videos on its website to refresh your knowledge on Ubers

best practices. Ex. 48C at 952. These videos cover topics including Wardrobe, Timeliness,

10

Customer Service, Vehicle Quality, Professional Driving, and more. Ex. 14. Uber tells drivers to

11

dress[] professionally formal attire for Black and SUV, business casual for UberX. Ex. 6 at

12

3484; Ex. 19 at 169:6-171:24. Uber also instructs drivers on vehicle cleanliness, proper

13

appearance, and specific instructions on how to pick up riders. Ex. 13, Ex. 6 at 3484-86 (make

14

sure to open the door for your client, [a]lways ask them about the temperature and if they have

15

a preferred radio station, and [m]ake sure the radio is off or on soft jazz or NPR); Ex. 20 at

16

6734, 6736-37 (have a clean rear seat, fresh un-opened waters, clean carpets, no clutter, no

17

papers in visor, front seat forward, and warning against jeans, un-tucked shirt, sneakers).

18

While these best practices are couched as suggestions, a drivers failure to comply with

19

them can lead to their termination. Ex. 2 at 77:2-24. For example, Uber has the power and

20

discretion to suspend drivers from driving for Uber, or to terminate drivers permanently for

21

number of reasons, such as:


Due to boast[ing] and failing to show respect to the Uber Support Team in emails.

22
23
24
25
26

(footnote continued from previous page)


Executive Transportation, Inc. and Halabuur Training as a condition of being reactivated. Ex.
48F; Ex. 48D at 986 (If your account is currently not active but you pass this class, Uber will
seriously consider reactivating your account). However, Uber has also exercised its discretion
to offer this opportunity to some drivers, while determining that others should not be given the
option to take the class at all. Ex. 18 at 121:4-7.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

2
3
4

5
6

8
9
10
11
12
13
14

Ubers system also allows it to track when a driver is on-duty or off-duty. Ex. 2 at 191:9-17.
Uber monitors how many drivers are on-duty at a given time and sends frequent messages to
encourage drivers to go on-duty and transport customers at times of high demand or when there
are not enough drivers on the road. Id. at 192:5-194:5. By contrast, if things are slower than
normal and [there are] too many drivers on the road, Uber will look for accounts to deactivate
and will terminate drivers to balance supply and demand. Ex. 27.

15

b. Drivers Form an Integral and Indistinct Part of Ubers Business.

16
17
18
19
20
21

Ex. 21 at 9493.
Due to sharing [an] account with other drivers. Ex. 22 at 9444.
[D]ue to a combination of low rating + client solicitation. Ex. 23 at 9283.
Due to low rating and poor [E]nglish level. Ex. 23 at 9286.
For accepting or soliciting cash tips. Ex. 24 ([Y]ou should NEVER accept tips from
clients. Please discontinue immediately. If we find out that you have been, your account
will be deactivated).
For having a dispatch acceptance rate that is too low. Ex. 48J at 1022.
For ask[ing] the rider for a direct reimbursement for a cleaning fee rather than going
through Uber to get reimbursed after a rider has left a mess in the car. Ex. 48M at 1047.
For customer ratings that have fallen below the minimum threshold [Uber] allow[s].
Ex. 48F at 1027-28.
For calling [a client] to check where their destination is, and then canceling the trip. Ex.
48A at 1234.9

Ubers system relies on drivers to function because, without drivers, there would be no one to
pick up passengers, and no way for Uber to derive revenue by taking a percentage of the fare.
Ex. 2 at 163:6-164:9. Despite Ubers position that it is a technology company and not a car
service, id. at 40:22-41, the CPUC has determined that Uber provid[es] transportation services
for compensation. Ex. 11 at1043. Indeed, as Uber admits in a promotional video on its website,
[i]ts pretty clear to all of us that without what [drivers] do every week and every day we

22
23
24
25
26

Ubers own internal emails show the discretion it uses in deciding when to terminate
drivers or give them another chance. See, e.g., Ex. 23 at 9284 (Terrible Reviews, No second
chance needed), (Switched him to driver purgatory); 9282 (BANNING YOUR ASS
AGAIN); Ex. 25 (Get rid of this guy. We need to make some serious cuts of guys below
4.5); Ex. 26 (HES FUCKING HORRIBLE.) Moreover, Uber categorizes its prohibited
behaviors into Zero Tolerance issues, Majors, Minors, and Cites, showing that Uber
uses its of control and discretion in determining how to screen for these violations and how
severe the punishment should be for each. Ex. 13 at 3427-28.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
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CASE NO. CV13-3826-EMC

wouldnt have a company. See Ex. 14 at 930 .


c. Uber Directs and Controls its Drivers Work.

Uber closely directs drivers work. This control begins when Uber carefully screens and

3
4

trains its drivers. Drivers must upload and maintain a valid California drivers license, vehicle

registration, proof of personal insurance, and photos of their car in order to drive. Ex. 28. Uber

also requires drivers to submit to background checks. Id.; Ex. 12 at 76:22-77:5. Uber has

scheduled interviews for new drivers, Ex. 29 at 209-10, and has told drivers attending interviews

to [b]ring your car, dress professionally, and be prepared to stay for 1 hour. Ex. 20 at 6740.

Uber has required drivers to take city knowledge tests and other training tests to measure

10

familiarity with Ubers expectations for drivers. See, e.g., Ex. 30.10 Uber also uses its discretion

11

to freeze its interview process according to its needs and the demand for drivers. Ex. 29 at 209.

12

As of July 2014, new UberBlack and some new UberX drivers have been required to attend

13

an in-person training course offered through 7 x 7 Executive Transportation and to pass a test as

14

prerequisite to driving for Uber. Ex. 31. Uber worked closely with 7 x7 Executive

15

Transportation to develop the curriculum for the classes, and the training materials and exams

16

are customized for Uber drivers. Ex. 32, at 527, Ex. 33.11 Uber has also required drivers with

17

low customer ratings to attend these classes in order to improve the quality of their service. Ex.

18

32 at 420, 421. Uber exercises its discretion as to whether to reactivate a suspended driver who

19

attends the class but fails to pass the final exam. Ex. 32 at 474-76.
d. Uber Enforces its Driver Requirements to Promote Its Brand.

20

Uber discourages driving for its competitors like Lyft. Uber has offered its drivers incentives

21
22
23
24
25
26

for referring Lyft drivers to become Uber drivers. Ex. 34 at 274:4-276:8. Uber has also warned
10

For example, starting in March 2013, it has required new drivers in the San Francisco
area to take a pre-interview online test to assess city knowledge before it will consider a given
driver for an interview. Ex. 29 at 209-10.
11

Drivers must pay $40 out-of-pocket for the mandatory training. Id. Indeed, Uber has
explicitly acknowledged that its goal is to transfer most if not all of the payment responsibility
[for these classes] to the driver. Ex. 32 at 454 (noting that those drivers unwilling to pay
should be churned anyway).

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

drivers that it is against our terms and conditions to display both Uber and Lyft signage in their

vehicles and that drivers should respect the brand and only have Uber branding visible when

driving Uber customers. Ex. 48L at 1011. Uber also tells drivers [w]hile driving for uberX, any

competitor-branding both interior and exterior should not be visible to riders. Additionally,

you should not be online with a competitor app while on a trip with an uberX rider. Id.

Uber also supplies drivers with a trade-dress an Uber U inside of the windshield of their

vehicle, which they must display while they are on-duty. Ex. 35 at 8311. Uber has supplied

drivers with an illuminated driver panel so they can adhere a light-up Uber U to their

windshield. Id. at 7270. Uber has instructed drivers to keep the U-light on while youre on duty

10

so riders can easily spot you, id., and has presented the Uber U illuminated panel to drivers as a

11

form of uberX branding. Id. at 8040-41.

12
13

e. Drivers Do Not Need Special Skills to Perform Their Work.


The only skill drivers must have in order to work for UberX is a standard California drivers

14

license. Ex. 28. UberBlack drivers are required to have a commercial license or to drive for Uber

15

through a company that holds such a license. Ex. 2 at 48:8-50:18.

16

f. Uber Provides Drivers with Instrumentalities to Perform their Work.

17

Drivers provide their own vehicle (through owning or leasing it, for instance leasing it

18

through other transportation companies, as Colopy and OConnor have done, see Ex. 12 at

19

152:12-18; Ex. 19 at 261:18-22, 282:9-24). However, Ubers investment in the technology that

20

drivers use to perform their work for Uber is far greater than the investment drivers have made.

21

Furthermore, Uber provides drivers with the Uber App and an iPhone to use exclusively for their

22

work with Uber. Ex. 12 at 162:5-163:3, Ex. 34 at 134:2-135:10. Uber also provides drivers with

23

certain contingent insurance coverage and requires drivers to submit incident reports on Ubers

24

forms within 24 hours of any accidents or risk suspension. Ex. 36, 13N. Uber gives drivers an

25

Uber U trade-dress symbol to place on their windshield, which helps promote Ubers brand and

26

makes it easier for riders to easily identify their driver. See supra, Part II.A.d.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

g. Uber Unilaterally Determines Drivers Compensation, Method of Payment, and


Specifications and Standards for their Vehicles.

Uber calculates all fares; drivers have no ability to negotiate their own pay with customers or

with Uber. Ex. 2 at 165:2-21, 167:20-168:7, Ex. 49. Fares are calculated based on a minimum

fare, plus a per minute fee when the car is moving less than 11 mph and a per mile fee when the

car is moving more than 11 mph. Ex. 6 at 3482. Fares vary depending on the type of service

being utilized and the location, but fares for UberBlack and UberSUV are typically higher.12

Uber can unilaterally change its formula for calculating fares at any time, thereby determining

the drivers rate of pay. Ex. 38 at 19. Uber has responded to attempts by drivers to negotiate

their rates by saying that We have every right to change pricing how we see fit and that drivers

10

can get another job. Ex. 38 at 19, Ex. 39.

11

Regardless of the service, Uber takes a fixed percentage of all driver fares, although the

12

amount of this percentage has varied over time and by location. Ex. 6 at 3482; Ex. 2 at 163:15-

13

164:9.13 Uber does not pay any operating expenses, including gas, car washing, and

14

maintenance. Ex. 2 at178:12-179:3.14 Uber also deducts a $10 per month fee for a phone data

15

plan from drivers pay. Id. at 185:5-17. Uber does not reimburse drivers for mileage. Id. at

16

188:22-189:9.

17

Uber seeks new drivers through job postings on job search websites like Indeed.com and

18
19
20
21
22
23
24
25
26

12

Whereas UberBlack requires a commercial license, UberX is less expensive and provides
the convenience of Uber at a lower price. Ex. 37. UberX drivers can drive their own personal
vehicles using just their personal license and insurance and a leased or owned mid-size or fullsize 4-door vehicle. Id. Uber determines standards for vehicle quality and can unilaterally
determine that certain vehicles will no longer be accepted based on new age restrictions. Ex.
48C at 963-65.
13

Uber typically has taken 20% of UberX and UberBlack fares and 28% of UberSUV fares.
Ex. 6 at 3482.
14

Uber generally charges passengers for tolls incurred by drivers while they are in the
vehicle but has not always reimbursed drivers for tolls incurred when the driver had to return and
pay the toll on the way back without an Uber passenger in the vehicle. Ex. 2 at 178:23-181:18;
Ex. 19 at 186:2-20.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
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CASE NO. CV13-3826-EMC

Craigslist. Ex. 10, Ex. 40.15 In these job postings, it advertises hourly rates of $20-35/hour or

up to $40 an hour. Id. At times, Uber guarantees its drivers a specific hourly rate. Ex. 41 at

7526 (Earn $35/hour guaranteed for driving during peak hours on Halloween weekend); Ex. 42

at 7471 (minimum guarantee of $20/hour during the following hours in Ventura). However,

Uber reserve[s] the right to change/cancel [such] offer[s] at any time. Ex. 43 at 731.
h. Plaintiffs Work For Uber.

6
7

Plaintiff Tom Colopy has worked as a driver for UberBlack since March 2012. Ex. 12 at

48:22-49:11. He initially worked for Uber through L&S Transportation and then was referred to

Cherifi Limousine by an Uber manager. Id. at 91:20-92:22.16 Colopy never used other ride-

10

sharing applications like Lyft or Sidecar, instead driving only for Uber. Ex. 12 at 188:18-189:14

11

Douglas OConnor worked as a driver for UberBlack from September 2012 to February 2014

12

first through a company called SF Bay, then through Bay Network Limo, then SF Bay again, and

13

then through a company called LAX-NYC Limo. Ex. 19 at 116:11-16; Ex. 45. Although the

14

intermediary companies he worked through changed over time, OConnors work for Uber

15

remained constant throughout that time period.17 OConnor never drove for Lyft or Sidecar. Id.

16

15

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18
19
20
21
22
23
24
25
26
27
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Ubers job postings advertise that Uber works to provide you . . . a secure, stable way to
make a living and that it is [a] great opportunity for full-time delivery, professional/taxi
drivers Ex. 40 at 955-56. The ads also note that previous experience as a delivery driver
(UPS/Fedex/USPS/CDL), courier, taxi driver, professional driver, chauffeur, [etc] is a plus.
Id. Other postings explain that previous employment experience in customer service, restaurant
industry retail, brand ambassador, hospitality, sales or admin is a plus. Id. at 958.
16

While Colopys intermediary transportation company changed, his driving for Uber
remained constant, and indeed he switched to Cherifi Limousine because he wanted to be able to
drive full-time for Uber. Id. at 80:23-81:21, 123:15-125:13. It is not uncommon for Uber to
match up drivers with transportation companies that want more Uber drivers to lease their cars.
Ex. 44 at 648-49.
17

Uber argues that the fact that OConnor worked for a transportation provider after
refusing to undergo Ubers background check was evidence that Uber lacked authority to
prevent Plaintiffs from working. Br. at 30. This completely misses the point: Uber had the
ability to prevent OConnor from working for Uber and it exercised that control to terminate him
when he refused to undergo the background check. That OConnor worked for an entirely
separate company in the transportation industry after his termination from Uber only shows that
he got another job. Ubers suggestion that OConnors continuing to work for a different
(continued on next page)
10
PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

at 105:14-17. Plaintiff Matthew Manahan has worked as a driver for UberX since March 2013.

Ex. 34 at 20:22-23. He also worked as a driver part-time for Lyft and Sidecar at various times

while working part-time for Uber. Id. at 90:1-5, 92:13-21. Plaintiff Elie Gurfinkel has worked

as a driver for UberX since May 2013. Ex. 46 at 57:12-24. He began working for Uber part-time

when his current employer started laying off workers. After three months of driving part-time

Gurfinkel was laid off from his company and he started driving full-time for Uber a week later,

treating it as his full-time source of revenue. Id. at 55:2-57:24, 171:14-20. He has driven

exclusively for Uber and never drove for Lyft or Sidecar or any other transportation company.

Id. at 133:14-25, 169.

10
11

III.

ARGUMENT
A. Standard of Review.

12

[U]nder California law, once a plaintiff comes forward with evidence that he provided

13

services for an employer, the employee has established a prima facie case that the relationship

14

was one of employer/employee. Narayan v. EGL, Inc., 616 F.3d 895, 900 (9th Cir. 2010).

15

Once the employee establishes a prima facie case, the burden shifts to the employer, which may

16

prove, if it can, that the presumed employee was an independent contractor. Id. A genuine

17

issue for trial exists if the non-moving party presents evidence from which a reasonable jury,

18

viewing the evidence in the light most favorable to that party, could resolve the material issue in

19

his or her favor. Gauntlett v. Illinois Union Ins. Co., 2012 WL 4051218, *5 (N.D. Cal. Sept. 13,

20

2012). Here, there can be no doubt that drivers perform services for Uber, and numerous facts in

21

the record prevent Uber from proving that the presumed employee was an independent

22

contractor as a matter of law. Narayan, 616 F.3d at 900. Indeed, Plaintiffs maintain that the

23

issue of whether they are employees can be decided as a legal matter in their favor. But, at the

24

very least, Uber cannot be entitled to summary judgment when there are so many facts in the

25
26

(footnote continued from previous page)


employer after being terminated precludes a finding of employment status is nonsensical.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

record (many undisputed) that support a finding of an employment relationship.18

B. Drivers Perform Services For Uber.

Uber attempts to characterize drivers as customers who receive a service from Defendant,

Br. at 1, and it contends that drivers have not provided a service to [Uber] such that they

cannot be[] its employees as a matter of law. Br. at 17. However, Ubers assertion that drivers

did not perform services for Uber is false and disingenuous where it would be impossible for

Uber to operate its business without the drivers, whose work constitutes the core service that

Uber provides to the public. Courts have held that where a business would cease to operate . . .

[w]ithout the services of the workers, those workers perform necessary rather than incidental

10

services and are employees as a matter of law. Rainbow Development, LLC v. Com., Dept. of

11

Industrial Accidents, 2005 WL 3543770, *3 (Mass. Super. Ct. 2005).19 Here, Uber would cease

12

to operate or derive any revenue were drivers to stop performing services for it.20

13

18

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16
17
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19
20
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27
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In its brief, Uber cites as evidence an award by the California Division of Labor
Standards Enforcement (DLSE), finding an Uber driver in 2012 was not misclassified as an
independent contractor. Dkt. 213-7. This award should be entitled to little or no deference, as it
is not clear what record was before the DLSE, and the driver appeared pro per, without the
benefit of counsel. Moreover, it does not appear that this lower level agency finding was
appealed (the driver pursued a case in San Francisco Superior Court, still pro per, but did not
include the misclassification claim in the court action, see Alatraqchi v. Uber Technologies, Inc.,
et al., CGC-13-527887), nor does this case involving a single unrepresented driver rise to the
level of a policy determination by the DLSE that Uber drivers are properly classified as
independent contractors. As the Court recognized in a previous order in this case, under
California law the interpretation of a statute is a legal question for the courts to decide, and an
administrative agencys interpretation is not binding. See Dkt. 58 at 11. (quoting Sara M. v.
Superior Court, 36 Cal. 4th 998, 1011 (2005)). Thus, [t]he level of deference a court should
accord [an agency] is fundamentally situational and turns on a legally informed, commonsense
assessment of its contextual merit. Id. (quoting Harlick v. Blue Shield of California, 686 F.3d
699, 716-17 (9th Cir. 2012)). Here, the sparse record and unrepresented party suggests this
award should not be considered by the Court.
19

See also Estrada v. FedEx Ground Package Sys., Inc., 154 Cal. App. 4th 1, 9 (2007)
(noting that [i]n practice [] the work performed by the drivers is wholly integrated into FedExs
operation, such that FedEx would cease to exist or operate without them); Yellow Cab Coop.,
Inc. v. Workers' Comp. Appeals Bd., 226 Cal. App. 3d 1288, 1294 (Ct. App. 1991) ([t]he
drivers, as active instruments of that enterprise, provide an indispensable service to Yellow; the
enterprise could no more survive without them than it could without working cabs); Santa Cruz
Transp., Inc. v. Unemployment Ins. Appeals Bd., 235 Cal. App. 3d 1363, 1376 (Ct. App. 1991)
(the work performed by the [drivers] in this case is part of the regular business of [Defendant]
and [t]he modern tendency is to find employment when the work being done is an integral part
(continued on next page)
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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

C. Drivers Are Employees Under The Industrial Welfare Commission Test (IWC) Set
Forth In Martinez v. Combs.

In Martinez v. Combs, 49 Cal. 4th 35, 64 (2010), the California Supreme Court exhaustively

reviewed how the term employ had been defined by the Industrial Welfare Commission (IWC)

and concluded that the common law definition of employment set forth in Borello, is actually

one of three alternative definitions of employment. Id. These three alternative tests include

(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to

work, or (c) to engage, thereby creating a common law employment relationship. Id. Thus,

Martinez clarifies that Borello is but one way to establish an employment relationship in

California.21 Here, drivers are employees of Uber under all three of the alternative IWC tests set

10

forth in Martinez.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

(footnote continued from previous page)


of the regular business of the employer); Martins v. 3PD, Inc., 2013 WL 1320454, *14 (D.
Mass. Mar. 28, 2013) (Defendant is clearly a delivery company, hiring Plaintiffs for a vital and
necessary aspect of its business, and [w]ithout Plaintiffs, [the defendant] could not perform the
delivery services that appear to form the foundation of its business).
20

Uber cites Kubinec v. Top Cab Dispatch, Inc., 2014 WL 3817016, *1 (Mass. Super. June
25, 2014), a Massachusetts trial court decision, for the proposition that drivers actually receive a
valuable service from [Uber]. Br. at 18. However, this very issue of whether taxi drivers
perform a service for defendant cab and dispatch companies was decided in favor of the drivers
in Sebago v. Tutunjian, 85 Mass. App. Ct. 1119 (2014), where the Massachusetts Appeals Court
affirmed a decision, finding taxi drivers were likely to succeed in proving they were employees
of the defendant taxi companies. The same is true here, where Uber claims to be a technology
company, but advertises itself as a transportation company and has been classified as such by the
CPUC. See supra, n. 5. Moreover, unlike in Kubinec, where the defendant dispatch service did
not receive any portion of customers fares and instead made its revenues through subscription
fees paid by taxi medallion owners, here, Uber takes a portion of every fare and generates
revenue directly from drivers services.
21

In Dynamex Operations W., Inc. v. Superior Court, 2014 WL 5173038, *9 (Cal. Ct. App.
Oct. 15, 2014), the court considered claims brought under Cal. Lab. Code 2802 by delivery
drivers and found that [t]o the extent the reimbursement sought by [Plaintiffs] in their section
2802 claim implicate Wage Order 9, the IWC definition of employee must be applied pursuant
to Martinez. As in Dynamex, this Court can apply any of the three alternative definitions set
forth in Martinez to Plaintiffs claims as they clearly implicate Wage Order 9 by making
deductions from drivers wages and requiring drivers to provide necessary tools and equipment.
See Cal. Code Regs. Tit. 8 11090, subd. 8, 9(B).

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

First, Uber clearly dictates drivers wages and working conditions. Uber sets the fares that

are charged to customers as well as the percentage it will take from the fares and changes them

frequently in its own discretion. Uber also dictates numerous other aspects of drivers working

conditions. See supra, pp. 3-10. Second, Uber suffer[s] or permit[s] drivers to work for its

benefit because it screens and approves every driver and monitors their performance, preventing

those drivers it deems unacceptable from working. Ex. 6 at 3482.22 Finally, Uber is the drivers

employer under Borellos common law test, as set forth further below in Part D. A finding of

employment status under any of these tests would defeat Ubers motion for summary judgment.

[C]ourts must be mindful of the purposes underwriting [California labor] laws. Smith v.

10

Cardinal Logistics Mgmt. Corp., 2008 WL 4156364, *7 (N.D. Cal. Sept. 5, 2008). Indeed, [t]he

11

Borello court noted that the control-of-work-details' test for determining employee status must be

12

applied with deference to the purposes of the protective legislation. Alexander, 765 F.3d at 992

13

(internal quotation omitted). [T]he deferential public policy standard described in Borello, has

14

been applied in in a range of cases, including misclassification cases under Section 2802.

15

Messenger Courier Ass'n of Americas v. California Unemployment Ins. Appeals Bd., 175 Cal.

16

App. 4th 1074, 1096 (2009); Alexander, 765 F.3d at 992.23 Likewise, the IWC wage orders

17

provide an employee-centric test gauged to mitigate the potential for employee abuse in the

18

workplace, such that Martinez v. Combs helps to fill[] the gap and create a standard attuned

19
20
21
22
23
24
25
26

22

See Guerrero v. Superior Court of Sonoma Cnty., 2013 WL 1148897, *1 (Cal. Ct. App.
Feb. 11, 2013) (noting that under the suffer or permit to work standard, the basis of liability is
the defendant's knowledge of and failure to prevent the work from occurring) (emphasis in
original); Randolph v. Budget Rent-A-Car, 97 F.3d 319, 326 n. 1 (9th Cir. 1996) (noting that
federal definition of employ as including to suffer or permit to work is extremely broad).
23

Uber claims that the deferential public policy standard set forth in Borello is inapplicable
outside the workers compensation context in which it was decided. Br. at 19, n. 18. However,
California courts have rejected this reading of Borello. In Air Couriers Int'l v. Employment Dev.
Dep't, 150 Cal. App. 4th 923, 935 (2007), the court found that Borellos deference based on
public policy was equally applicable in the unemployment insurance context. See also
Messenger Courier Ass'n of Americas v. California Unemployment Ins. Appeals Bd., 175 Cal.
App. 4th 1074, 1096 (2009).

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
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CASE NO. CV13-3826-EMC

to the needs and protection of employees. Dynamex, 230 Cal. App. 4th at 729-30. With the

purposes of these tests in mind, there can be no doubt that Ubers summary judgment motion

must be denied.

D. Drivers Are Employees Under Borello.

i.

Uber Has the Right To Control The Manner and Means of Drivers Work.

The California Supreme Court has held that, under Borellos common law test, the extent of

the hirer's right to control the work is the foremost consideration in assessing whether a common

law employer-employee relationship exists. Ayala, 59 Cal. 4th at 532. Apart from the hirers

right to control the work, courts also recognize a range of secondary indicia. Id.24 [T]he

10

strongest evidence of the right to control is whether the hirer can discharge the worker without

11

cause, because the power of the principal to terminate the services of the agent gives him the

12

means of controlling the agent's activities. Id. (quoting Malloy v. Fong, 37 Cal.2d 356, 370

13

(1951)); see also Tieberg v. Unemployment Ins. App. Bd., 2 Cal. 3d 943, 954 (1970) ([S]trong

14

evidence in support of an employment relationship is the right to discharge at will, without

15

cause); Alexander, 765 F.3d at 988 (The right to terminate at will, without cause, is strong

16

evidence in support of an employment relationship).


Here, there can be no doubt that Uber retains the right to discharge [drivers] without cause.

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18

Id. Indeed, by the terms of its very own contracts which it drafted, Uber retains unreviewable

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25
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24

These secondary indicia (discussed further below) include:


(a) whether the one performing services is engaged in a distinct occupation or business;
(b) the kind of occupation, with reference to whether, in the locality, the work is usually
done under the direction of the principal or by a specialist without supervision; (c) the
skill required in the particular occupation; (d) whether the principal or the worker
supplies the instrumentalities, tools, and the place of work for the person doing the work;
(e) the length of time for which the services are to be performed; (f) the method of
payment, whether by the time or by the job; (g) whether or not the work is a part of the
regular business of the principal; and (h) whether or not the parties believe they are
creating the relationship of employer-employee.

Ayala, 59 Cal. 4th at 532.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

discretion to terminate its drivers. Ex. 15 at 1683-84; see also Ex. 16 at 1147 (Uber may

terminate this Agreement automatically, without any notice requirement, at such moment when

the Transportation Company and/or its Drivers no longer qualifies, under the applicable law or

the quality standards of Uber...). Furthermore, any ambiguity about Ubers ability to terminate

its drivers should be construed against Uber as the drafter of these adhesive agreements. Cal.

Civ. Code 1654.25 Uber claims that its contracts contain a mutual termination clause that is

evidence of an independent contractor relationship. Br. at 23. However, this assertion

completely mischaracterizes the cases Uber cites; a mutual termination clause is entirely

consistent with at-will employment and does not constitute evidence of an independent

10

contractor relationship.26

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25

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26
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In its brief, Uber expounds on the details of its contracts with drivers and alleges that, by
their terms, these contracts preclude a finding of an employment relationship. Br. at 9-11, 19-22.
However, Ayala makes clear that [w]hile any written contract is a necessary starting point, . . .
the rights spelled out in a contract may not be conclusive if other evidence demonstrates a
practical allocation of rights at odds with the written terms. 59 Cal. 4th at 535; see also Estrada,
154 Cal. App. 4th at 10-11 (The parties' label is not dispositive and will be ignored if their
actual conduct establishes a different relationship); Alexander, 765 F.3d at 989 (9th Cir. 2014)
(California law is clear that [t]he label placed by the parties on their relationship is not
dispositive, and subterfuges are not countenanced); Air Couriers, 150 Cal. App. 4th at 938;
Tieberg, 2 Cal. 3d at 952. Here, Ubers contracts purport to classify drivers as independent
contractors, but that label is belied by the reality that Uber terminates drivers in its discretion for
a host of reasons and that it exercises effective control over the means and manner of drivers
work.
26

Indeed, independent contractor arrangements are usually for a discrete project or a finite
term. Ongoing relationships, that end only when one party or the other terminates the
relationship, more closely resemble an employee-employer relationship. See, e.g., JustMed, Inc.
v. Byce, 600 F.3d 1118, 1127 (9th Cir. 2010) (noting that the fact that the software was an
ongoing concern for the company, not a discrete project that JustMed expected Byce to simply
finish and be done with, cut in favor of finding employment rather than independent contractor
relationship); Solis v. Intl Detective & Protective Serv., Ltd., 819 F. Supp. 2d 740, 752 (N.D. Ill.
2011) (evidence weighed toward employee status where the facts indicated that the parties
contemplated a long-term relationship); Sales v. Bailey, 2014 WL 3897726, *11 (N.D. Miss.
Aug. 8, 2014) (duration of relationship weighed in favor of employee status where plaintiffs had
sought an indefinite employment relationship). Moreover, if one party to an independent
contractor arrangement quits before the end of the contract term or discrete project, it typically
owes contract damages. Estate of Perry v. Green Card, Inc., 2006 WL 3479056, at *5 (R.I.
Super. Nov. 30, 2006), as amended (Dec. 1, 2006) (finding the power to deprive [a worker]
totally or substantially of a necessary aid to [their work] without the [defendant] being in breach
of any obligation [is] incompatible with the freedom of control enjoyed by an independent
contractor) (internal quotation omitted). By contrast, here, either party can terminate at any
(continued on next page)
16
PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

And if the terms of Ubers agreements with drivers left any doubt, Ubers practices clearly

1
2

demonstrate that it retains the right to terminate drivers without cause. Uber has terminated

drivers for everything from customer complaints and lower than average customer ratings, to

missing paperwork or not accepting enough ride requests or not treating Uber personnel

respectfully. See Ex. 47 (citing unprofessional behavior and poor attitude in deactivating

driver); Ex. 48J at 1022 (threatening suspension if dispatch acceptance rating is not brought

up); Ex. 21 at 9493 (deactivating driver for failing to show respect to Uber Support Team).27

Apart from the ability to terminate drivers, other evidence of Ubers right to control the

manner and means of drivers work abounds. Indeed, the near constant feedback and

10

suggestions Uber offers its drivers clearly demonstrates Ubers right to control the manner and

11

means of their work. Uber uses an extensive quality framework to assess [its] drivers. Ex. 3

12

at 902. For example, Uber has distributed training materials to drivers which state that it

13

expect[s] Uber drivers to greet clients wearing professional business attire and by opening the

14

door and greeting the client by name, that vehicles are expected to be clean and luxurious,

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and that Uber expect[s] on-duty drivers to accept all requests. Ex. 48H at 934, 936. Uber

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warns drivers against [a]ccepting cash from a client, and [p]assive client solicitation by

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handing out business cards or using branded equipment. Ex. 13 at 3428. Ubers materials

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(footnote continued from previous page)


time and neither party owes any damages for terminating the contract early, further underscoring
that this is fact an employment relationship. Tapager v. Birmingham, 75 F. Supp. 375, 386 (N.D.
Iowa 1948) (finding salesmen's quitting or their discharge was never considered as constituting
a breach of any existent contract or agreement and this cut toward employee status).
27

Uber argues that its only insight into the quality of service provided by drivers comes
from passengers, in the form of star ratings or comments, Br. at 4, n. 6, but Uber cannot avoid
the conclusion that the company is evaluating its drivers performance through customer
feedback. Indeed, it is commonplace for companies that provide services to customers to
evaluate employees performance based on customer feedback, and it is the company (in this
case, Uber) that decides whether or not to terminate drivers based on what they learn from that
feedback. The fact that Uber can and does change the minimum passenger ratings demonstrates
that it, and not passengers, is controlling the level of service required. Moreover, Uber exercises
discretion when determining whether to give drivers a second chance, which further underscores
its control over drivers and ability to discharge them at will. See supra, pp. 4-5.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

caution drivers against [r]efusing a clients trip destination, dress code infraction[s] or

hygiene issue[s], [p]icking up [the] wrong client because of failure to verify the clients name,

and [r]ejecting too many trips. Id. at 3428-29. Uber also gives drivers specific, step-by-step

directions regarding how they are supposed to pick up passengers.28 When drivers do receive

complaints from clients, Uber instructs them to review specific training videos, covering topics

ranging from Wardrobe, Vehicle Quality, Timeliness, Customer Service, Using a GPS,

and General Professionalism. Ex. 48C at 948-49, 970, 974, Ex. 14. The training videos warn

that drivers who are caught using the same account will lose access to the Uber system

(meaning they cannot sub-contract out their driving and let someone else fill in for them on their

10

account), and that [i]f your rating falls below riders expectations you will lose access to the

11

Uber application. Ex. 14 at 936, 937. While Uber may couch its extensive quality framework

12

as mere suggestions, see Ex. 3 at 902, drivers who fail to follow them face the possibility of

13

suspension and termination in Ubers discretion. See supra, pp. 5-6. In this context, Uber clearly

14

exercises extensive control over the manner and means of drivers work and can terminate

15

them at will.
ii.
That Drivers Have Some Freedom In Conducting Their Work Is Not
Dispositive Where Uber Exercises All Necessary Control Over the
Operation.

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That drivers may retain some choice in determining how and when they carry out their work

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does not lead to the conclusion that they are independent contractors rather than employees.

20

Instead, [w]hat matters is whether the hirer retains all necessary control over its operations.

21

Ayala, 59 Cal. 4th at 531 (2014) (internal citation omitted). The fact that a certain amount of

22

freedom of action is inherent in the nature of the work is immaterial where the employer has

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general supervision and control over it. Id. at 531 (internal citation omitted). Thus, the fact that
28

Uber instructs drivers on when it is appropriate to call a client (If your pickup is at the
airport call the client since you do not know exactly where they are) and when it is not (There
is no reason to tell the client that you are on your way), and instructs drivers on where to pick
up clients (e.g., do not stop[] short of the customer or end up on the wrong side of the street.)
See Ex. 20 at 6734, 6736-39.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

drivers can set their own hours does not undercut a finding of employment status.29 For

example, in Borello, the workers had significant autonomy over the harvest itself, Alexander,

765 F.3d at 991, and were able to set their own hours, and yet the California Supreme Court still

found them to be employees. Borello, 48 Cal. 3d at 347; see also JKH Enterprises, Inc. v. Dep't

of Indus. Relations, 142 Cal. App. 4th 1046, 1051 (2006) (finding that delivery drivers were

employees under the Borello test, notwithstanding the fact that drivers [we]re free to decline to

perform a particular delivery and drivers [we]re not required to work either at all or on any

particular schedule); Terry, 336 P.3d at 953 (Nevada Supreme Court found exotic dancers were

employees of Gentlemans Club, notwithstanding the fact that performers may determine their

10

own schedules).30

11

Moreover, courts have noted that the simplicity of the work may make detailed

12

supervision, or control, unnecessary. Air Couriers Int'l, 150 Cal. App. 4th t 937. Thus, in

13

Borello and JKH Enterprises, the minimal degree of control that the employer exercised over

14

the details of the work [of farmworkers and couriers] was not considered dispositive because the

15

work did not require a high degree of skill and it was an integral part of the employer's business.

16

JKH Enterprises, Inc., 142 Cal. App. 4th at 1064. Like the drivers in JKH Enterprises and Air

17

Couriers Intl, Uber drivers do not need a high degree of skill to perform their jobs, but their

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work is an integral part of Ubers business. Indeed, as Uber admits on its website, without

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23

This Court noted in its earlier ruling on Ubers motion to dismiss that counsel for
Defendant represented Uber has no control over the drivers hours . . . If this proves to be the
case, Plaintiffs assertion of an employment relationship would appear to be problematic. Dkt.
58 at 9:25-10:1. However, as the caselaw makes clear, this point is not dispositive, particularly
where Uber has the power to terminate drivers in its discretion, and so many of the secondary
Borello factors also weigh in favor of employment status. Indeed, in Borello, where the
California Supreme Court found an employment relationship, the workers worked whenever and
as much or as little as they chose.
30

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Indeed, Uber drivers do not retain complete control over when to drive and pick up
passengers, since Uber requires drivers to maintain a certain acceptance rating, meaning they
must accept a certain percentage of riders hails through the app while they are on-duty or they
risk deactivation. Thus, the fact that Uber allegedly does not require [drivers] to accept any
particular trip, Br. at 20, is misleading where drivers are required to accept 80% or more of all
requests or risk termination. See Ex. 17 at 101; Ex. 48I; Ex. 48J.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

what [drivers] do every week and every day we wouldnt have a company. Ex. 14 at 930.

Ultimately, Uber may not dictate each and every detail of its drivers work but it exercises

absolute overall control of all meaningful aspects of this business relationship. Ruiz v. Affinity

Logistics Corp., 754 F.3d 1093, 1101 (9th Cir. 2014).


For example, in Alexander, 765 F.3d at 993, the Ninth Circuit noted that FedEx sets the

5
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rates charged to customers, bills the customers, and collects payment. Id. The same is true of

Uber. Indeed, the drivers [cannot] negotiate for higher rates, as independent contractors

commonly can, Ruiz, 754 F.3d at 1101, whereas Uber can unilaterally cut rates at any time, and

frequently does so. Ex. 2 at 165:2-21, 167:20-168:7; Ex. 38, Ex. 39. Likewise, as in Alexander,

10

Uber pays the drivers on a regular schedule by depositing money directly into drivers

11

accounts on a weekly basis, thereby controlling the amount the amount and manner of their

12

payment. Alexander, 765 F.3d at 993; Ex. 14 at 930. Moreover, it is Uber that obtains the

13

clients in need of the service and provides the workers to conduct it. Id. As in Alexander,

14

where the Ninth Circuit concluded that [d]rivers deliver packages to FedEx's customers, not to

15

their own customers, here, Uber obtains the clients in need of the service and heavily

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advertises its service to consumers. Drivers transport [Ubers] customers, not [] their own

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customers. Id. Indeed, Ubers materials inform drivers that passive client solicitation (e.g.,

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business cards or branded equipment in the backseat) is a major issue and that so-called

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malicious client solicitation ask[ing] the client to become a client of your private car service

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business is a zero tolerance issue that could result in immediate suspension. Ex. 13 at 3427-

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28. Together, all these facts show that Uber exercises all necessary control over the operation.
iii.
Borellos Secondary Factors Support A Finding of Employment Status.31

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31

[T]he considerations in [Borellos] multi-factor test are not of uniform significance,


because [s]ome, such as the hirer's right to fire at will and the basic level of skill called for by
the job, are often of inordinate importance, while [o]thers, such as the ownership of the
instrumentalities and tools of the job, may be of only ... evidential value. Ayala, 59 Cal. 4th at
539. Here, the most critical factors weigh in the drivers favor because Uber plainly has the right
to fire drivers at will and the level of skill called for by the job is minimal. See Alexander, 765
F.3d at 995 (the skill required in the occupation . . . favors plaintiffs because drivers need no
experience to get the job . . . and the only required skill is the ability to drive).

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

With respect to the balance of the other factors that courts consider under the Borello test, see

supra, n. 22, virtually every factor favors Plaintiffs. For example, with respect to the first factor,

drivers are clearly not engaged in a distinct occupation or business, because the work

performed by the drivers is wholly integrated into [Ubers] operation insofar as the customers

they transport are Ubers customers and Uber controls their rates of compensation and pays

drivers just like employees. Id. at 995.

Uber argues that drivers are free to drive for other ride-sharing apps or to hold other jobs

while working for Uber but this argument fails for several reasons. First, it is not uncommon for

employees to hold multiple jobs, and even work for competitors simultaneously.32 Second, in

10

any event, although Uber claims that it does not care if its drivers work for competitors, this

11

contention is belied by the facts in the record. Uber has actively tried to lure drivers away from

12

competitors like Lyft. Ex. 34 at 274:23-276:8. Moreover, Ubers terms and conditions

13

apparently prohibit the display of competitor ridesharing apps signage or branding in the vehicle

14

while transporting Uber customers. Ex. 48L at 1011. Uber has instructed drivers that they

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should not be online with a competitor app while on a trip with an uberX rider, id. Likewise,

16

Uber considers it a major violation if a driver engages in so-called [p]assive client

17

solicitation such as promoting their own business with business cards or branded equipment in

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the backseat, Ex. 13 at 3428, and there is no way for a rider to request a specific driver through

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the App. Ex. 2 at 209:8-210:1. Clearly, when they are driving Ubers passengers, they are

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32

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Although Uber drivers may also work for other ridesharing applications like Lyft and
Sidecar, this does not undercut a finding of employee status. Terry, 336 P.3d at 960 (finding
dancers to be employees even though strip club allowed the performers to work at other venues,
and different performers testified that they continued schooling or other employment during their
tenure at [the club]); McLaughlin v. Seafood, Inc., 861 F.2d 450, 452-53 (5th Cir. 1988) (An
employer cannot circumvent [the laws purpose] by allowing essentially fungible [] workers to
work for neighboring competitors [because] [l]aborers who work for two different employers on
alternate days are no less economically dependent than laborers who work for a single
employer). Thus, Ubers suggestion that it would breach the duty of loyalty to work for both
Lyft and Uber if Plaintiffs were employees of both, Br. at 22, is completely contradicted by the
caselaw. Indeed, it would be absurd to suggest that someone who works part-time at McDonalds
and part-time at Burger King is an employee of neither company because the individual works
simultaneously for the competition.

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

wearing Ubers hat, rather than their own hat. Coverall North America, Inc. v. Division of

Unemployment Assistance, 447 Mass. 852 (2006) (finding cleaning worker who had been

classified by the company as an independent contractor was an employee since she wore the

hat of the company). Thus, drivers are not engaged in a distinct occupation or business, and

are wholly integrated into [Ubers] operation, where Uber is the one who obtains the clients,

set rates, bills the customers, and collects and distributes payment to drivers. Estrada, 154 Cal.

App. 4th at 9.33


The second factor, whether the work is performed under the principal's direction, id.,

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Plaintiffs also note that, although Uber argues that the drivers ability to hire other
drivers through setting up their own intermediary transportation weighs in favor of independent
contractor status, the so-called entrepreneurial opportunity test utilized by the D.C. Circuit in
FedEx Home Delivery v. National Labor Relations Board, 563 F.3d 492 (D.C. Cir. 2009), is not
the operative test in California. In Alexander, the Court noted that numerous decisions
demonstrated Californias rejection of this test:
In Arzate v. Bridge Terminal Transport, Inc., 192 Cal. App. 4th 419, 121 Cal.Rptr.3d 400
(2011), the California Court of Appeal reversed a trial court's grant of summary judgment
to the defendant where, as here, the plaintiffs drove their own trucks and paid the related
expenses, [and] could have leased more than one truck to defendant and hired other
drivers. Id. at 40506. The court found that these opportunities did not override other
factors in California's multi-factor analysis such that the drivers were independent
contractors as a matter of law. Id. In Narayan, we concluded that, where drivers retained
the right to employ others to assist in performing their contractual obligations, but the
company had to approve all helpers, this was indicative of control of the details of the
drivers' performance under California law. 616 F.3d at 902. And in Ruiz, we found that
drivers were employees where the company retained ultimate discretion to approve or
disapprove of those helpers and additional drivers. 754 F.3d at 1102.
Alexander, 765 F.3d at 993-94.
As in the cases cited in Alexander, Uber drivers must drive under their own personal
accounts and cannot share accounts with others. Ex. 13 at 3427 (Allowing someone else to
drive under your Uber account is a Zero Tolerance issue). Thus, although Uber claims
UberX drivers like Manahan and Gurfinkel may use subcontractors to provide transportation
services booked through the Uber App, Br. at 10, this is simply not true where Uber punishes
drivers who let someone else fill in and drive under their account. Ex. 22 at 9444. Furthermore,
as in Narayan and Ruiz, for those UberBlack Partners who do have multiple Uber-approved
drivers working under their accounts, Uber retains the ultimate discretion to approve or
disapprove of those drivers based on their ability to meet Ubers criteria. Ruiz, 754 F.3d at
1102; Ex. 48 (email informing an Uber Partner that a driver who drives under his account has
been deactivated). Overall, it is clear that evidence of entrepreneurial opportunity simply does
not affect the employment status inquiry, particularly where drivers can only increase their pay
by working more hours and accepting more rides.

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30

22
PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

favors drivers as well since Uber monitors everything from how much time drivers are spending

on-duty, how many ride requests they accept, and even what routes they take when they transport

customers. See supra, pp. 3-6. Likewise, the third factor, the skill required in the occupation,

also favors plaintiffs, id., because numerous courts have held that drivers do not require a high

degree of skill to do their jobs. JKH Enterprises, 142 Cal. App. 4th at 1064; Estrada, 154 Cal.

App. 4th at 12 (only required skill is the ability to drive); Narayan, 616 F.3d at 903 (drivers

needed no special license beyond a normal driver's license, and no skills beyond the ability to

drive). Here, Uber has no formal education requirements and no requirement of professional

driving experience. Instead, it merely requires a drivers license and insurance. Ex. 40 at 955.

10

The fifth factor, the length of time for performance of services, favors plaintiffs as well.

11

Alexander, 765 F.3d at 996. For example, where a contractor was hired to perform a specific

12

task for a defined period of time, a court is more likely to find an independent contractor

13

relationship, but here [t]here was no contemplated end to the service relationship at the time that

14

the plaintiff Drivers began working. Narayan, 616 F.3d at 903. Courts have considered drivers

15

who worked for a particular company for years to have lengthy tenures . . . inconsistent with

16

independent contractor status. Air Couriers Int'l, 150 Cal. App. 4th at 938.34
The sixth factor, the method of payment utilized by Uber, does not clearly favor an

17
18

employment or independent contractor relationship. First, Uber frequently advertises or

19

guarantees hourly rates to its drivers. Ex. 40, Ex. 41 at 7526; Ex. 42 at 7471. Second, although

20

[a]n hourly rate traditionally indicated an employment relationship, Varisco v. Gateway Sci. &

21

Eng'g, Inc., 166 Cal.App.4th 1099 (2008), here, Uber drivers are not exactly paid a flat sum on a

22

34

23
24
25

Here, Plaintiff Colopy has been working for Uber since 2012 and Plaintiffs Manahan and
Gurfinkel have been working for Uber since 2013. Thus, three of the four named plaintiffs have
been working for Uber for more than a year and a half to date. Moreover, if some drivers didnt
work as long as the named plaintiffs, it does not undercut a finding of employment status. Sales,
2014 WL 3897726, *11 (N.D. Miss. Aug. 8, 2014) (duration of relationship weighed in favor of
employee status where some plaintiffs worked for shorter periods but had sought an indefinite
employment relationship).

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

per job basis either. Instead, drivers are paid based on a formula created by Uber, which takes

account of the amount of time they are driving as well as the distance and speed. Ex. 4 at 890.

Uber has complete discretionary authority to adjust the formula and rate of pay. Moreover,

employers may pay by time, by the piece, or by successful completion of the service, instead of

a fixed salary, and [it will] still constitute employee wages if other factors indicate an employer-

employee relationship. 765 F.3d at 996 (internal quotation omitted). Thus, Ubers method of

payment clearly does not establish an independent contractor relationship.

The seventh factor, whether the work is part of the principal's regular business, favors

plaintiffs, as well, Alexander, 765 F.3d at 996, because drivers [a]re performing an integral

10

and entirely essential aspect of [Ubers] business. Air Couriers Int'l, 150 Cal. App. 4th at 938.

11

Like the courier drivers in Air Couriers Intl and the FedEx drivers in Alexander, the drivers in

12

this case perform work essential to [Ubers] core business and Uber would literally cease to

13

exist (or derive any profits) without the drivers work. Alexander, 765 F.3d at 996 (quoting

14

Estrada, 154 Cal. App. 4th at 9). Given that Ubers business could not operate without the

15

drivers work, this factor strongly favors a finding of an employment relationship.

16

Indeed, the only secondary factors that arguably favor Uber are the fourth factor, the

17

provision of tools and equipment, and [t]he final factor, the parties' beliefs. Alexander, 765

18

F.3d at 995-96. While it is true that Uber does not suppl[y] the instrumentalities, tools, and the

19

place of work, Tieberg, 2 Cal. 3d at 950, it is also true that Uber dictates the age and model of

20

acceptable cars, and unilaterally changes these requirements at its discretion. Ex. 48C at 963-65.

21

Noncomplying drivers are subject to termination. Ex. 3 at 905 (if a driver drives a car that has

22

not been approved by Uber, this is reason for removal). Moreover, although drivers provide

23

their cars, the investment Uber has made in developing the App the drivers use is clearly far

24

greater than an individual drivers investment, which cuts in favor of employee status.35

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35

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See, e.g., Sakacsi v. Quicksilver Delivery System, Inc., 2007 WL 4218984 at *7 (M.D.
Fla. Nov. 28, 2007) (holding relative investment weighed in favor of employee status where
many courier drivers used their own personal cars to make [] deliveries and courier services
(continued on next page)
24
PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
SUMMARY JUDGMENT
CASE NO. CV13-3826-EMC

With respect to the parties belief, although some Uber documents refer to drivers as

contractors and disclaim an employment relationship, other parts of those same documents

clearly express Ubers right to control drivers in how they perform their work. Plaintiff

Gurfinkel testified that he started driving for Uber because he needed . . . another job, which

demonstrates that, however his relationship with Uber was characterized by Defendant, he

viewed it as driving full-time for Uber. Ex. 46 at 40:25-41:3, 57:19-24. Colopy testified that

he switched from one intermediary transportation company to another because he wanted more

hours to be available to work for Uber and that he considered myself a driver for both Uber

and [the intermediary company]. Ex. 12 at 109:4-10, 110:14-19, 92:2-3. Moreover, the belief

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of the parties as to the legal effect of their relationship is not controlling if as a matter of law a

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different relationship exists. Grant v. Woods, 71 Cal. App. 3d 647, 654 (Ct. App. 1977). To the

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extent drivers belief that they are independent contractors is based on representations made in

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Ubers adhesive contracts, California law is clear that [t]he label placed by the parties on their

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relationship is not dispositive. Alexander, 765 F.3d at 989 (internal quotation omitted).

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Moreover, the Court should give little weight to the affidavits Uber has submitted in support

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of its motion, in which drivers purport to like driving for Uber and claim to want to maintain

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an independent contractor relationship. Br. at n. 10-14. While these affidavits might go to the

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relationship drivers believe they are creating with Uber, this is simply one of many factors and is

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not dispositive if the economic reality shows they are in fact employees.36 In short, the issue is

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cost for purchasing and maintaining its software and system far outweighed the costs to drivers);
Clincy v. Galardi S. Enterprises, Inc., 808 F. Supp. 2d 1326, 1346-47 (N.D. Ga. 2011) (relative
investment weighed in favor of employee status where dancers $50,000 annual investment
related to her work did not exceed the nightclubs investment in its business).
36
Moreover, courts have discounted such affidavits from satisfied current employees
(also called happy camper affidavits), recognizing that it is unlikely that potential class
members would be unanimously supportive [of litigation] when most potential class members
have an interest in maintaining amicable relationships at work. Jenson v. Eveleth Taconite Co.,
139 F.R.D. 657, 664 (D. Minn. 1991).

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PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR
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not whether the drivers want to be classified as employees or independent contractors; the

issue is what their status is under the law. Courts have uniformly rejected companies attempts

to defend themselves from wage violation allegations by submitting evidence that the putative

class members do not want the protection. See, e.g., Tony & Susan Alamo Found. v. Sec'y of

Labor, 471 U.S. 290, 302 (1985) ([T]he purposes of the [FLSA] require that it be applied even

to those who would decline its protections).37

Thus, none of the secondary factors clearly favors Uber, and nothing in them changes the

inescapable conclusion that Uber has illegally misclassified its drivers as independent

contractors.
iv. Ubers Own Characterization Of Its Relationship With Drivers Is Irrelevant Where
The Facts Show That Drivers Are Employees Of Uber.

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As explained in the previous section, neither [Ubers] nor the drivers' own perception of their

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relationship as one of independent contracting affects the result where the Borello test clearly

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indicates otherwise. Alexander, 765 F.3d at 997. Ubers careful linguistics and shrewd

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characterizations cannot avoid the obvious conclusion that its drivers are in fact employees

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because the label placed by the parties on their relationship is not dispositive, and subterfuges

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are not countenanced. Id. (quoting Borello, 256 Cal.Rptr. at 543). Over time, Uber has changed

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its linguistic description of its drivers and its business to try and cover up the economic reality.

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What was originally an On-Demand car service is now a technology company.38 But Uber

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See also Oyarzo v. Tuolumne Fire Dist., 2013 WL 5718882, *7 (E.D. Cal. Oct. 18, 2013)
(noting that in federal context The purpose of the FLSA requires it to be applied even when
individuals decline its protection); Matamoros v. Starbucks Corp., 699 F.3d 129, 138-39 (1st
Cir. 2012) (rejecting argument that many class members were satisfied with the challenged
policy and finding that the issue was simply whether the policy violated state wage law); Martin
v. Tango's Rest., Inc., 969 F.2d 1319, 1324 (1st Cir. 1992) (finding liability even with respect to
involuntary plaintiff who sided with management at trial). The issue here under Plaintiffs
expense reimbursement claim is whether Uber can legally make drivers pay their own expenses
and, were that clear to drivers, no doubt many would likely prefer having their expenses covered,
as well as receiving the tips that Uber tells customers are part of the fare.
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Indeed, it is telling that Uber used to refer to drivers being on-duty when they worked
for Uber, but now refers to them as being online. Cf. Ex. 3 at 902 (No jeans; either a jacket
OR a tie at all times while on duty) (emphasis added) with Ex. 2 at 134:11-135:9 (So on
Duty is the name of the button . . . [I]ts now online.) Furthermore, Uber materials have
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is not entitled to write around the principles and mandates of California Labor Law through

clever semantics. Alexander, 765 F.3d at 998.39 Calling a termination a deactivation or

referring to being suspended as being waitlisted, does not change the economic reality of the

relationship between the parties.


E. The Fact That Some Drivers Contract With, and Drive for, Uber Through
Intermediary Transportation Companies That Lease Them Vehicles Does Not
Mean that Uber is Not Their Employer.

Uber insists that it is not the joint-employer of Plaintiffs Tom Colopy and Douglas

OConnor, who worked for UberBlack through transportation companies.40 However, the

evidence makes clear that it was Uber that made critical decisions about hiring, firing, and

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referred to drivers dispatch acceptance rate, see Ex. 48J at 1022, but Uber insists that it
do[esnt] dispatch drivers and that drivers are simply sent a request that it is fully upon them
to determine whether or not they want to accept (although evidently they may be deactivated if
they fail to accept enough rides). Ex. 2 at 134:11-135:9; Ex. 48I, Ex. 48J.
39

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Indeed, courts have repeatedly rejected attempts by employers to re-characterize the


nature of their business through linguistic gymnastics so as to deny the obvious and thereby
avoid liability for misclassification. For example, delivery companies have attempted to portray
themselves as being in the business of logistics (connecting customers who want to send
packages with small business who are willing to deliver them), but these arguments have been
rejected. See, e.g., Schwann v. FedEx Ground Package System, Inc., 2013 WL 3353776, *5 (D.
Mass. July 3, 2013) ([w]hether intended as shorthand for a more metaphysical purveyor of
logistics business entity or not, FedEx advertises that it offers package pick-up and delivery
services and its customers have no reason to believe otherwise); Martins v. 3PD, Inc., 2013 WL
1320454, *14. As another example, strip clubs have denied they are in the business of providing
adult entertainment, claiming instead they merely provide a venue for independent contractor
dancers to make money from customers who pay to see them; the courts have likewise rejected
those attempts, recognizing the clubs for what they are and how they hold themselves out. See,
e.g., Chaves v. King Arthur's Lounge, 2009 WL 3188948 (Mass. Super. July 30, 2009) (rejecting
defendants argument that it was in the business of selling alcohol rather than exotic dancing);
Jenks v. D. & B. Corp., 2011 WL 3930190, *3 (Mass. Super. Aug. 24, 2011) (the fact that the
club's website advertises [g]orgeous, totally nude dancers, is evidence that plaintiffs perform
their services as exotic dancers within the usual course of the defendants business). Likewise,
here, Uber clearly holds itself out as an on-demand car service and Everyones private
driver, and its efforts to deny the obvious that it is a transportation service are unavailing.
See supra, p. 2.
40

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To the extent that Uber admits that Colopy and OConnor were employees of
transportation companies, see Ex. 44 (contact these partners regarding employment
opportunities), the issue then merely becomes whether Uber is their joint employer (if these
intermediary companies even are their employer).

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setting rules for its drivers, and setting fares, and that these middleman transportation

companies were simply pass-through intermediaries that distributed drivers money to them and

from whom drivers rented vehicles. Ubers attempts to avoid liability to these drivers by trying

to pass off middleman transportation companies as the drivers employers fails because even if

these companies were also their employers, Uber is still liable as a joint employer.41 Under the

joint employment test articulated in Martinez, Uber is at the very least the joint employer of

Colopy and OConnor for purposes of their California Labor Code claims, because under

Martinez, an entity must either (1) exercise control over the employee's wages, hours or

working conditions; or (2) allow him to suffer work or permit him to work; or (3) engage him,

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creating a common law employment relationship. Guifu Li, 281 F.R.D. at 401-02; Martinez, 49

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Cal.4th at 64 (the language of the IWC's employer definition has the obvious utility of

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reaching situations in which multiple entities control different aspects of the employment

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relationship).42

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Indeed, it may well be that these intermediary middlemen are Ubers employees as well,
and thus, by definition they cannot be joint employers of other drivers. Courts have held that
where alleged independent contractors are found to be employees of the defendant, the
employees of the alleged contractor are employees of the defendant as well. For example, in
Alexander, the Ninth Circuit found multi-route drivers were employees notwithstanding that they
had other drivers working under them. 765 F.3d at 984; see also Beliz v. W.H. McLeod & Sons
Packing Co., 765 F.2d 1317, 1328 (5th Cir. 1985) ([I]f the alleged contractor were held to be an
employee of the farmer, it would necessarily follow that the [contractors] workers were in turn
the farmers employees.); Castillo v. Givens, 704 F.2d 181, 188 (5th Cir. 1983) (same); Fanette
v. Steven Davis Farms, LLC, 2014 WL 2961239, *7 (N.D. Fla. July 1, 2014) (same).
42
In applying the Martinez joint employer test, courts have recognized that the FLSA joint
employment test is instructive because the same evidence is relevant to both inquiries. Carrillo
v. Schneider Logistics Trans-Loading & Distribution, Inc., 2014 WL 183956, at *15, n. 15 (C.D.
Cal. Jan. 14, 2014); Rios v. Airborne Express, Inc., 2006 WL 2067847, at *1-2 (N.D. Cal. July
24, 2006) (California courts have looked to the federal Fair Labor Standards Act (FLSA) for
guidance in determining joint employer status because it is consistent with the remedial
purposes of California law). Furthermore, the California Court of Appeal has suggested that
the joint employer standard under California law should be given a broader interpretation than
the federal standard, such that a finding of genuine factual disputes underlying the FLSA joint
employer analysis would support the same finding under California law. Carrillo, 2014 WL
183956, *15.
Numerous courts applying the FLSA joint employment test have found an employment
relationship where employers exercised control similar to what Uber has exercised here. See,
e.g., Antenor v. D & S Farms, 88 F.3d 925, 935 (11th Cir. 1996) (finding a joint employment
relationship where the growers had the power to veto [the labor contractors] hiring
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Here, it is clear that Uber is a joint employer of drivers who drove through transportation

companies: first, Uber clearly exercised control over drivers wages and working conditions, by

setting the fares they could charge to Uber passengers and dictating various requirements about

how they performed their work.43 Even more clearly though, Uber suffered and permitted

drivers like Colopy and OConnor to work because they had the power to unilaterally veto a

transportation companys hiring decision or fire a driver if that driver failed Ubers background

check, violated Ubers policies, or failed to meet Ubers quality standards. Ex. 47.44 Indeed,

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decisions, the growers themselves monitored the workers job qualifications rather than relying
on [the labor contractor] to do so, and the growers took deductions from the farmworkers pay);
Preston v. Settle Down Enters., Inc., 90 F. Supp. 2d 1267, 1274 (N.D. Ga. 2000) (holding
temporary employment agency was joint employer where it had the power to hire and fire and set
the rate of pay); Barfield v. New York City Health & Hospitals Corp., 537 F.3d 132, 145 (2d Cir.
2008) (hospital was joint employer where it had power to hire and fire workers at will,
supervised and controlled conditions of employment). As in these cases, Uber had the power to
veto [transportation companies] hiring decisions and monitored [drivers] job qualifications
through their background checks, interviews, tests, and screening. Antenor, 88 F.3d at 935.
Likewise, Uber maintained records of drivers qualifications (license, insurance) and complaints
against drivers, which it used to hire and fire drivers by deactivating them due to repeated
complaints or low ratings. Ex. 47, Ex. 19 at 161:2-22. There can be no question that under the
federal joint employment test, which California courts have found to be relevant and
instructive, Uber is, at the very least, a joint employer of drivers like Colopy and OConnor.
43

That transportation companies determined how to split fares with drivers like Colopy and
OConnor, makes no difference where Uber determines the amount of the fares. Thus, it is not
relevant that the transportation companies, in their middleman role, could decide how much
Colopy and OConnor could keep as payment. Indeed, the cut of fares taken by these
transportation companies essentially constitutes rental payments for the vehicles that OConnor
and Colopy drive for Uber. Barfield, 537 F.3d at 136 (holding that hospital was nursing
assistants joint employer despite the fact that referral agency was responsible for paying their
wages and deciding how much of a cut they would take as a middleman); Antenor, 88 F.3d at
937-38 (holding that growers were joint employers responsible to ensure farmworkers received
minimum wage despite the fact that owner of labor contracting business was responsible for
paying farmworkers wages). Here, as in Barfield, Uber pays the fares to transportation
company partners and they in turn decide what cut they will take out and what they will pass
on to the workers. 537 F.3d at 136.
44

In finding that genuine issues of material fact precluded summary judgment for an
alleged joint employer, the court in Carillo, 2014 WL 183956, *16, noted that Wal-Marts ability
to impose[] screening requirements on warehouse workers, such that they determined who
could be hired, was a critical factor in precluding summary judgment for Wal-Mart on the joint
employment question. The same is true here, where Uber required all drivers to go through its
screening process and meet its standards.

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OConnor testified at his deposition that the transportation company he worked with sent him to

Ubers offices for screening and approval and that he had to take a test and interview with an

Uber manager before getting to drive for Uber. Ex. 19 at 168:1-174:4.45 Finally, for all the

reasons set forth supra, Part. III.D., the plaintiffs are Ubers employees under Borello. Uber is

the drivers employer regardless of whether another entity such as an intermediary transportation

company may also be considered a joint employer.

IV.

CONCLUSION
Drivers perform the service that Uber offers to the public, and without the drivers services,

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Uber would cease to operate and derive no revenue. Furthermore, Uber exercises control over

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drivers by retaining the power to screen, hire, and fire drivers in its unreviewable discretion and

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by constantly monitoring drivers performance. Under the Borello test, as well as the other

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alternative IWC tests, Uber drivers are employees under California law. For these reasons, the

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Court should deny Ubers motion for summary judgment.

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Colopy testified that neither Uber nor the transportation company he worked through
compensated him for gas, bridge tolls, certain car washes, bottled water, or data charges for the
use of his Uber-issued iPhone. Ex. 12 at 50:8-21. Where both joint employers disclaim
responsibility for employing workers like Colopy, it is the worker who bears the consequences.
See David Weil, Enforcing Labour Standards in Fissured Workplaces: The US Experience, 22
Econ. & Lab. Rel. Rev. 2, at 36-37 (July 2011) (describing the rise in fissured employment,
which occurs when a large company attempts to shirk its role as a direct employer by
disassociating itself from its workers though subcontracting, franchising, third-party
management, changing workers from employees to self-employed businesses, and related
contractual forms, including deliberately misclassifying workers as independent contractors).
Weil is now head of the U.S. Department of Labors Wage and Hour Division, and has written
extensively on the threat these schemes pose to workers. See David Weil, The Fissured
Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It
(Harvard Univ. Press, Feb. 3, 2014).
To the extent that some of OConnors expenses were briefly paid for by one
transportation company he worked through, Ex. 19 at 124:22-125:1, this simply means he would
not have damages for reimbursement for that period of time. The Complaint in this case states
that Uber drivers are required to bear many of the expenses of their employment, including
expenses for their vehicles, gas, and other expenses. Dkt. 199 23. That some drivers like
OConnor had some expenses reimbursed for a brief period does not mean he was not Ubers
employee. At the damages phase, it would be determined what expenses were not reimbursed
and are thus owed to drivers like OConnor.

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Date: December 30, 2014

Respectfully submitted,

DOUGLAS OCONNOR, THOMAS


COLOPY, MATTHEW
MANAHAN, and ELIE GURFINKEL individually
and on behalf of all others similarly situated,

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By their attorneys,
_/s/ Shannon Liss-Riordan_______________
Shannon Liss-Riordan, pro hac vice
LICHTEN & LISS-RIORDAN, P.C.

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CERTIFICATE OF SERVICE
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I hereby certify that a copy of the foregoing document was served by electronic filing on
December 30, 2014, on all counsel of record.
_/s/ Shannon Liss-Riordan_______________
Shannon Liss-Riordan, Esq.

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