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

8/9/2019 PLAINTIFFS OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.S MOTION FOR SUMMARY JUDGMENT

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

CASE NO. CV13-3826-EMC

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SHANNON LISS-RIORDAN, pro hac vice ([email protected])BENJAMIN J. WEBER , pro hac vice ([email protected])LICHTEN & LISS-RIORDAN, P.C.729 Boylston Street, Suite 2000Boston, MA 02116Telephone: (617) 994-5800Facsimile: (617) 994-5801

MATTHEW CARLSON (SBN 273242)([email protected])Carlson Legal Services100 Pine Street, Suite 1250San Francisco, CA 94111Telephone: (415) 817-1470

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

DOUGLAS OCONNOR, THOMASCOLOPY, MATTHEW MANAHAN, andELIE GURFINKEL, individually andon behalf of all others similarly situated,

Plaintiffs,

v.

UBER TECHNOLOGIES, INC,

Defendant.

Case No. CV 13-3826-EMC

PLAINTIFFS OPPOSITION TODEFENDANT UBER TECHNOLOGIES,INC.S MOTION FOR SUMMA RYJUDGMENT

Judge: Hon. Edward M. Chen

Date: January 29, 2014Time: 1:30 PM


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TABLE OF CONTENTS

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 ToDiscipline 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

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

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

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

g. Uber Unilaterally Determines Drivers Compensation, Method OfPayment, And Specifications And Standards For Their Vehicles. ..................... 9

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

III. ARGUMENT .................................................... ....................................................... .............11

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

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

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

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

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

ii. That Drivers Have Some Freedom In Conducting Their Work Is NotDispositive Where Uber Exercises All Necessary Control Over TheOperation. ................................................ .................................................... ..... 18

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 IrrelevantWhere The Facts Show That Drivers Are Employees Of Uber. ...................... 26

E. The Fact That Some Drivers Contract With, And Drive For, Uber ThroughIntermediary Transportation Companies That Lease Them Vehicles Does Not MeanThat Uber Is Not Their Employer. .................................................. ............................... 27

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


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TABLE OF AUTHORITIES

Cases

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

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

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

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

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

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

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

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

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

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

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

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

Statutes

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

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

Other Authorities

David Weil, Enforcing Labour Standards in Fissured Workplaces: The US Experience,22 Econ. & Lab. Rel. Rev. 2 (July 2011) ................................................... ............................... 30

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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I. INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

1 Declaration of Shannon Liss-Riordan, Exhibit 1, at 1068 (We are Everyones PrivateDriver. We are Uber and were rolling out a transportation system in a city near you.). Allexhibits cited herein are to the Liss- Riordan Declaration and hereinafter will be cited as Ex.2 Uber refers to termination as deactivation which means a driver can no longer accesstheir account and can no longer drive for Uber. Ex. 2 at 102:18-104:3.3 Plaintiffs note that this Court dismissed Plaintiffs claims against Uber founder andPresident Travis Kalanick and Vice President Ryan Graves, without prejudice, in recognition ofthe fact that these claims could possibly be cured by additional factual allegations. See Dkt. 58at 29- 30. Plaintiffs have attempted to pursue discovery regarding these individuals involvementin formulating the policies and making decisions at issue in this case, which Uber has so farresisted. However, discovery is ongoing in this case, and Plaintiffs intend to continue to pursue(continued on next page)


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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

(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.

4 Plaintiffs submit that drivers are Ubers employees as a matter of law. Indeed, manycourts around the country have been deciding the question of whether a worker is properlyclassified as an employee or independent contractor as a matter of law, rather than leaving thisquestion to a jury, under a number of different tests. See, e.g., Alexander, 765 F.3d 981 (holdingdrivers 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) (holdingdrivers are employees a matter of law under Oregon's right-to-control and economic-realitiestests); 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 windowinstaller 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 exoticdancer were employees as a matter of law). Plaintiffs intended to argue this fact in their ownmotion for summary judgment, but the Court ruled that it would not entertain such a motion atthis time. See Dkt. 176. Nonetheless, Plaintiffs maintain that drivers are employees as a matter oflaw and therefore this Court must deny Ubers motion for summary judgment.

5 Recently Uber has tried to re- characterize itself as a technology company that connectsriders and drivers rather than a transportation service, Ex. 2 at 40:22-41:14. However, thesesemantic efforts are disingenuous and cannot obscure the truth. For example, Uber frequentlycompares itself to taxi companies in its advertising. See Ex. 7; Ex. 8 at 1070 (noting Uber is50% 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 sectionof Craigslist). Moreover, the California Public Utilities Commission (CPUC) has determinedthat Uber is a Transportation Network Company (TNC), which it defines as an organization operating in California that provides prearr anged tr ansportati on services forcompensation Ex. 11 at 1043 (emphasis added). Likewise, a federal court in Massachusettsfound that, in a case against Uber brought by taxi companies, there was sufficient evidence thatUber exercises control over (or is in charge of) vehicles -for-hire that the plaintiffs unfaircompetition claims could survive a motion to dismiss. Boston Cab Dispatch, Inc. v. UberTechnologies, Inc., 2014 WL 1338148, *6 (D. Mass. Mar. 27, 2014). The c ourt rejected Ubersargument that any unlawful conduct is attri butable only to drivers and not Uber in light of thefact 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

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

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

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

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

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

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

a. Uber Monitors its Drivers Performance and Exercises its Discretion toDiscipline or Terminate Drivers Who Do Not Meet Its Standards.

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

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

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

unreviewable discretion. Ex. 15 at 1683-84. 6 Likewise, Ubers agreement with UberBlack

6 UberX drivers contract through Uber subsidiary, Rasier LLC, which is another legalentity within Uber. Ex. 2 at 174:13 -175:6. However, Uber is still the employer of UberXdrivers 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 parentcompany where plaintiffs h ad to wear DirecTV uniforms and display DirecTV magnetson 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 mayalso have or have had power to control the Plaintiffs as banquet servers, a worker may be(continued on next page)


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drivers such as Colopy and OConnor states th at 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 Se rvice 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

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

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

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

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

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

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

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

permanently terminate them, in some instances requiring a driver to take a class 8 or asking a

(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 employmentdoctrine is that a worker may be employed by more than one entity at the same time).

7 Some drivers (such as Manahan and Gurfinkel) contract directly with Uber, while others(such as Colopy and OConnor) work through intermediary transportation companies, whichUber sometimes refers to as Uber partners (although drivers who work through transportationcompanies also have their own contracts directly with Uber, see, e.g., Ex. 16). Regardless ofwhether a driver works directly for Uber or works through a transportation company, Uber stillretains the same authority to screen and reject applicants and fire drivers in its discretion, and thetransportation companies merely act as pass-throughs for payment. Ex. 2 at 33:4-36:2. Thedrivers working through transportation companies still receive, directly from Uber, their weeklyratings, constant suggestions of how they could be doing a better job, as well as warningsabout deactivation, and deactivations. Ex. 19 at 181:3-12.

8 Many drivers have been referred to training classes conducted by third-parties like 7 x 7(continued on next page)


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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,

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

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

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

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

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

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

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

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

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

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

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

number of reasons, such as: Due to boast[ing] and failing to show respect to the Uber Support Team in emails.

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


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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 accountwill 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 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 toencourage 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 wil l look for accounts to deactivate

and will terminate drivers to balance supply and demand. Ex. 27.

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

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

9 Ubers own internal emails show the discretion it uses in deciding when to terminatedrivers or give them another chance. See, e.g., Ex. 23 at 9284 (Terrible Reviews, No secondchance needed), (Switched him to driver purgatory); 9282 (BANNING YOUR ASSAGAIN ); Ex. 25 (Get rid of this guy. We need to make some seri ous cuts of guys below4.5); Ex. 26 (HES FUCKING HORRIBLE.) Moreover, Uber categorizes its prohibited

behaviors into Zero Tolerance issues, Majors, Minors, and Cites, showing that Uberuses its of control and discretion in determining how to screen for these violations and howsevere the punishment should be for each. Ex. 13 at 3427-28.


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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

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

familiarity with Ubers expectatio ns for drivers. See, e.g., Ex. 30 .10 Uber also uses its discretion

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

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

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

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

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

are customized for Uber drivers. Ex. 32 , at 527, Ex. 33 .11 Uber has also required drivers with

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

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

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.

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

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 Franciscoarea to take a pre-interview online test to assess city knowledge before it will consider a givendriver for an interview. Ex. 29 at 209-10. 11 Drivers must pay $40 out-of-pocket for the mandatory training. Id. Indeed, Uber hasexplicitly acknowledged that its goal is to transfer most if not all of the payment responsibil ity[for these classes] to the driver. Ex. 32 at 454 (noting that those drivers unwilling to payshould be churned anyway).


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

vehicles and that drivers shoul d respect the brand and only have Uber branding visible whe n

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 displa y 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

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

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

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

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

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

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

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

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

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

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

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

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

certain contingent insurance coverage and requires drivers to submit incident reports on Ubersforms within 24 hours of any accidents or risk suspension. Ex. 36, 13N. Uber gives drivers an

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

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


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g. Uber Unilaterally Determines Drivers Compensation , Method of Payment, andSpecifications 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 drive rs

can get another job. Ex. 38 at 19, Ex. 39 .Regardless of the service, Uber takes a fixed percentage of all driver fares, although the

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

164:9. 13 Uber does not pay any operating expenses, including gas, car washing, and

maintenance. Ex. 2 at178:12-179:3. 14 Uber also deducts a $10 per month fee for a phone data

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

188:22-189:9.

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

12 Whereas UberBlack requires a commercial license, UberX is less expensive and providesthe convenience of Uber at a lower price. Ex. 37. UberX drivers can drive their own personalvehicles using just their personal license and insurance and a leased or owned mid-size or full-size 4-door vehicle. Id. Uber determines standards for vehicle quality and can unilaterallydetermine 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 thevehicle 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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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/canc el [such] offer[ s] at any time. Ex. 43 at 731.

h. Plaintiffs Work For Uber.

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-

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

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

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

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

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

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

15 Ubers job postings advertise that Uber works to provide you . . . a secure, stable way tomake a living and that it is [a] great opportunity for full -time delivery, professional/taxidrivers Ex. 40 at 955- 56. The ads also note that previous expe rience 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, restaurantindustry retail, brand ambassador, hospitality, sales or admin is a plus. Id. at 958.

16 While Colopys intermediary transportation company changed, his driving for Uberremained constant, and indeed he switched to Cherifi Limousine because he wanted to be able todrive full -time for Uber. Id. at 80:23-81:21, 123:15-125:13. It is not uncommon for Uber tomatch 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 transporta tion provider afterrefusing 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 theability to prevent OConnor from working for Uber and it exercised that control to terminate himwhen he refused to undergo the background check. That OConnor worked for an entirelyseparate company in the transportation industry after his termination from Uber only shows thathe got another job. Ubers suggestion that OConnors continuing to work for a different(continued on next page)


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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.

III. ARGUMENT

A. Standard of Review.

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

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

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

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

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

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

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

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

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

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

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

issue of whether they are employees can be decided as a legal matter in their favor. But, at thevery least, Uber cannot be entitled to summary judgment when there are so many facts in the

(footnote continued from previous page)employer after being terminated precludes a finding of employment status is nonsensical.


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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

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

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

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

18 In its brief, Uber cites as evidence an award by the California Division of LaborStandards Enforcement (DLSE), finding an Uber driver in 2012 was not misclassified as anindependent contractor. Dkt. 213-7. This award should be entitled to little or no deference, as itis 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 wasappealed (the driver pursued a case in San Francisco Superior Court, still pro per, but did notinclude 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 thelevel of a policy determination by the DLSE that Uber drivers are properly classified asindependent contractors. As the Court recognized in a previous order in this case, underCalifornia law the in terpretation of a statute is a legal question for the courts to decide, and anadministrative 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 shouldaccord [an agency] is fundamentally situational and turns on a legally informed, commonsenseassessment of its contextual merit. Id. (quoting Harlick v. Blue Shield of California, 686 F.3d699, 716-17 (9th Cir. 2012)). Here, the sparse record and unrepresented party suggests thisaward 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 FedExsoperation, 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]hedrivers, as active instruments of that enterp rise, provide an indispensable service to Yellow; theenterprise could no more survive without them tha n it could without working cabs); Santa CruzTransp., 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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C. Drivers Are Employees Under The Industrial Welfare Commission Test (IWC) SetForth 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

forth in Martinez.

(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) (D efendant is clearly a delivery company, hiring Plaintiffs for a vital andnecessary aspect of its business, and [w]ithout Plaintiffs, [th e defendant] could not perform thedelivery 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. June25, 2014), a Massachusetts trial court decision, for the proposition that drivers actually receive avaluable service from [Uber ]. Br. at 18. However, t his very issue of whether taxi drivers

perform a service for defendant cab and dispatch companies was decided in favor of the driversin Sebago v. Tutunjian, 85 Mass. App. Ct. 1119 (2014), where the Massachusetts Appeals Courtaffirmed a decision, finding taxi drivers were likely to succeed in proving they were employeesof the defendant taxi companies. The same is true here, where Uber claims to be a technologycompany, but advertises itself as a transportation company and has been classified as such by theCPUC. See supra, n. 5. Moreover, unlike in Kubinec, where the defendant dispatch service didnot receive any portion of customers fares and instead made its revenues through subscriptionfees paid by taxi medallion owners, here, Uber takes a portion of every fare and generatesrevenue 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 deliverydrivers and found that [t] o the extent the reimbursement sought by [Plaintiffs] in their section2802 claim implicate Wage Order 9 , the IWC definition of employee must be applied pursuantto Martinez . As in Dynamex, this Court can apply any of the three alternative definitions setforth in Martinez to Plaintiffs claims as they clearly implicate Wage Order 9 by makingdeductions 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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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.

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

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

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

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

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

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

App. 4th 1074, 1096 (2009); Alexander, 765 F.3d at 992. 23 Likewise, the IWC wage orders

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

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

22 See Guerrero v. Superior Court of Sonoma Cnty., 2013 WL 1148897, *1 (Cal. Ct. App.Feb. 11, 2013) (notin g that under the suffer or permit to work standard, the basis of liability isthe defendant's knowledge of and failure to prevent the work from occurring) (emphasis inoriginal); Randolph v. Budget Rent-A-Car, 97 F.3d 319, 326 n. 1 (9th Cir. 1996) (noting thatfederal 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 inapplicableoutside 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 Borello s deference based on

public policy was equally applicable in the u nemployment insurance context. See alsoMessenger Courier Ass'n of Americas v. California Unemployment Ins. Appeals Bd., 175 Cal.App. 4th 1074, 1096 (2009).


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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 Borello s 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

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

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

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

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

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

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

evidence in support of an employment relationship).

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

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

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 usuallydone under the direction of the principal or by a specialist without supervision; (c) theskill required in the particular occupation; (d) whether the principal or the workersupplies 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 theregular business of the principal; and (h) whether or not the parties believe they arecreating the relationship of employer-employee .

Ayala, 59 Cal. 4th at 532.


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discretion to terminate its drive rs. 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

contractor relationship. 26

25 In its brief, Uber expounds on the details of its contracts with drivers and alleges that, bytheir 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 disposi tive and will be ignored if theiractual 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 notdispositive, 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 independentcontractors, but that label is belied by the reality that Uber terminates drivers in its discretion fora host of reasons and that it exercises effective control over the means and manner of driverswork.

26 Indeed, independent contractor arrangements are usually for a discrete project or a finiteterm. Ongoing relationships, that end only when one party or the other terminates therelationship, 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 anongoing concern for the company, not a discrete project that JustMed expected Byce to simplyfinish and be done with, cut in favor of finding employment rather than independent contractorrelationship); 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 partiescontemplated 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 hadsought an indefinite employment relationship) . Moreover, if one party to an independentcontractor arrangement quits before the end of the contract term or discrete project, it typicallyowes 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 breachof any obligation [is] incompatible with the freedom of control enjoyed by an independentcontractor) (intern al quotation omitted). By contrast, here, either party can terminate at any(continued on next page)


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

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 deact ivating

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 evid ence of Ubers right to control the

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

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

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

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

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

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

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

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

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

(footnote continued from previous page)time and neither party owes any damages for terminating the contract early, further underscoringthat 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 constitutinga brea ch 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 comesfrom passengers, in the form of star ratings or comments, Br. at 4, n. 6, but Uber cannot avoidthe conclusion that the company is evaluating its drivers performance through customerfeedback. Indeed, it is commonplace for companies that provide services to customers toevaluate employees performance based on customer feedback, and i t is the company (in thiscase, Uber) that decides whether or not to terminate drivers based on what they learn from thatfeedback. The fact that Uber can and does change the minimum passenger ratings demonstratesthat it, and not passengers, is controlling the level of service required. Moreover, Uber exercisesdiscretion when determining whether to give drivers a second chance, which further underscoresits control over drivers and ability to discharge them at will. See supra, pp. 4-5.


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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

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

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

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

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

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

them at will.ii. That Drivers Have Some Freedom In Conducting Their Work Is Not

Dispositive Where Uber Exercises All Necessary Control Over theOperation.

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

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

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

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

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

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

28 Uber instru cts drivers on when it is appropriate to call a client (If your pickup is at theairport call the client since you do not know exactly where they are) and when it is not (Thereis no reason to tell the client that you are on your way), and instructs dr ivers on where to pickup 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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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

own schedu les) .30

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

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

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

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

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

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

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

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

29 This Court noted in its earlier ruling on Ubers motion to dismiss that counsel forDefendant repr esented Uber has no control over the drivers hours . . . If this proves to be thecase, 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, particularlywhere Uber has the power to terminate drivers in its discretion, and so many of the secondaryBorello factors also weigh in favor of employment status. Indeed, in Borello, where theCalifornia Supreme Court found an employment relationship, the workers worked whenever andas much or as little as they chose.

30 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 theymust accept a certain percentage of riders hails through the app while they are on -duty or theyrisk 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 allrequests or risk termination. See Ex. 17 at 101; Ex. 48I; Ex. 48J.


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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

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,

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

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

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

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

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

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

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

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

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

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

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

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

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 bythe job, are often of inordinate importance, while [o]thers, such as the ownership of theinstrumentalities and tools of the job, may be of only ... evidential value. Ayala, 59 Cal. 4th at539. Here, the most critical factors weigh in the drivers favor because Uber plainly has the rightto fire drivers at will and the level of skill called for by the job is minimal. See Alexander, 765F.3d at 995 (the skill required in the occupation . . . favors plaintiffs because drivers need noexperience to get the job . . . and the only required skill is the ability to drive).


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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 in sofar 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

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

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

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

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

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

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

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

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

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

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

32 Although Uber drivers may also work for other ridesharing applications like Lyft andSidecar, this does not undercut a finding of employee status. Terry, 336 P.3d at 960 (findingdancers 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 theirtenure at [the club] ); McLaughlin v. Seafood, Inc., 861 F.2d 450, 452-53 (5th Cir. 1988) (Anemployer cannot circumvent [the law

Documents

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