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Uber: Oregon official’s opinion on drivers’ employment status ‘simply wrong’

By Christian Hill, The Register-Guard
Published: October 21, 2015, 4:33pm

An Uber executive formally responded Tuesday to a recent opinion by Oregon’s labor commissioner that Uber drivers are employees rather than independent contractors, characterizing the opinion as “simply wrong” and saying it mischaracterized the degree of control the company has over the drivers.

Last week, Labor Commissioner Brad Avakian said that Uber drivers are “economically dependent” on the ride service and therefore are employees rather than independent contractors.

The opinion was intended to give Uber guidance on how regulators for the state Bureau of Labor and Industries view the employment status of Uber drivers, a signal that they would find in favor of an Uber driver if he or she brought a complaint against the company for violating Oregon labor law.

William Barnes, Uber’s regional general manager for Western states, wrote in a two-page response that Avakian’s opinion is based “on an erroneous and incomplete picture of how drivers use the Uber application in Oregon and as such, is filled with factual errors and assertions that are simply wrong.”

Barnes wrote that his company offers the drivers far more flexibility and freedom and exerts less control over them compared to a traditional employment relationship.

“BOLI overlooked in its analysis the extent to which Uber works for drivers, not the other way around,” he wrote.

Barnes noted that about half of Uber drivers drive less than 10 hours each week, fewer hours than part-time employees work, and more than two-thirds of drivers vary their hours by more than 25 percent week-to-week.

Uber drivers can work for competing ride services to boost their income and often drive for Uber while also looking for full-time jobs, both indications that the relationship between the company and drivers is far less permanent than a traditional employer-employee compact, Barnes wrote.

“If drivers were employees, they would have to work fixed and pre-assigned shifts, and their ability to work across multiple platforms simultaneously would be restricted — mechanisms of control that traditional employers exert over employees,” he wrote.

An agency spokesman didn’t immediately respond to an email seeking comment.

Avakian wrote that he applied a six-part test used by courts to determine the employment status of Uber drivers.

The test examined, among other questions, how much control the employer had over the worker, how permanent is their relationship and how integral are the services the worker performs to a business.

The test illustrates “how Uber drivers are not operating their own separate businesses with the degree of autonomy one expects with an independent contractor,” Avakian wrote.

Labor laws ensure employees earn at least a minimum wage, work in a safe environment, receive protections from discrimination, and remain eligible for unemployment and workers’ compensation benefits.

Independent contractors have greater independence and flexibility, but are entitled only to the pay and other benefits they negotiate with a company.

Uber suspended operations in the Eugene-Springfield area in April following a long dispute with Eugene city officials over whether the ride service needed to secure a license required of taxi companies.