The biggest issue seems to be control over the work delivered. All of the Uber for X want their service to be a pleasant experience for the customer which is ~98% guaranteed to hit 5 stars or the local equivalent. This generally requires some degree of operational control over the workers. Aside from the (formidable!) difficulties [+] of actually structuring a business to have operational control, that tilts the relationship very, very heavily from "could possibly be an independent contractor" to "presumptively an employee."
Given that one is going to lose a fight with the IRS or local labor department over classification -- and one will, eventually, if you're doing things like e.g. giving the employees checklists or training them on the "company standard" -- might as well bite the bullet early.
[ + ] Many people employed in startups are young and may, how to put this gently, not have experience giving them an appreciation that members of the class which Stanford sources most engineering grads from are not perfectly representative of all Americans in all ways which matter towards employer/employee relationships.
So you are saying, the driver is an employee of the passenger? I definitely control the work delivered when I'm riding. I dictate where to pick me up, and the exact destination. Sometimes I even demand a specific route. And to top it all off, I give the guy a rating.
Uber does none of those things. They don't even tell the driver when to switch the app on and off. So I guess, your point is, that Uber doesn't have much risk that drivers be categorized as employees?
EDIT: I WAS KIDDING GUYS! Except my point about Uber. They really don't seem a bit like an employer to me. Particularly w/regard to control over drivers work. Bigger question, why does anyone think it would be an advantage to drivers to become employees and get lower pay?
Not a lawyer but I'm obligated to be at least partially conversant with this by dint of once being a consultant and now being an employer:
The driver is clearly not an employee of the passenger. A driver given the instruction that they must comply with the passenger's preferences (as opposed to exercising their judgement as an independent business) may well become an employee of the entity enforcing that instruction.
It will probably be remarked upon in litigation over Uber that Uber will terminate their relationship with drivers who fall below a particular cutoff, specifically tells drivers this, and often specifically instructs them in ways to ensure this doesn't happen to them. These do not feel like insignificant facts to me.
I'd ask Grellas to handicap Uber's risk of being reclassified prior to asking me to do it, since he is an expert on this subject and I am not, but even from my lay view of the situation it looks like some of the Uber for Xs are at markedly more risk than others. Uber feels markedly less risky than firms which e.g. develop in-app checklists for heading off particular ops problems.
Given that one is going to lose a fight with the IRS or local labor department over classification -- and one will, eventually, if you're doing things like e.g. giving the employees checklists or training them on the "company standard" -- might as well bite the bullet early.
[ + ] Many people employed in startups are young and may, how to put this gently, not have experience giving them an appreciation that members of the class which Stanford sources most engineering grads from are not perfectly representative of all Americans in all ways which matter towards employer/employee relationships.