Uber fires its drivers at will, with no clear policy and sometimes with no warning -- a move that could seriously undercut its claim that its drivers are independent contractors and not employees, lawyers say.
Sudden firings -- or in industry-speak, "deactivations" -- can leave drivers stranded without a source of income and no legal recourse to fight the termination. Uber doesn't tell drivers upfront what will get them canned, just sends them warnings once they're already in hot water.
Without a clear policy of what makes a fireable offense, drivers are left to piece it together by sharing their warnings and deactivation stories on forums. And some drivers say that Uber is exploiting the opaque policy to fire them for speaking out against the company while saying it's for another reason -- or never giving a reason at all.
Richard Boese, a 30-year-old hotel worker in Boston, had been driving for UberX for a couple months when he hosted an "Ask Me Anything" on Reddit in August about driving for the car-service app. He said some nice things (he likes the flexibility!) and some not-so-nice (he said it'll "hire everyone"). Boston.com wrote about the AMA, saying Boese "ripped" Uber.
Two weeks later, Uber fired him. Uber never responded to his emails asking why, and an Uber spokeswoman wouldn't tell FORBES either, citing its "strict privacy policy." But Boese sees the timing as "more than a coincidence."
And he's not alone: Last week, a Dallas-area UberX driver's many complaints on
But the timing was suspicious -- and Uber had already chastised him about his Twitter use, said the driver, who didn't want to give his name to protect his day job. A month before, Uber had warned him to stop tweeting his customer-service concerns to Uber's local Twitter accounts, which he said he did when he was ignored through the usual routes. The people manning the Twitter accounts didn't have the proper access to address his concerns, Uber said, so he had to stop.
"Any more tweets of this nature will result in termination of partnership," a Dallas Uber manager wrote in the e-mail.
'Hateful Statements Regarding Uber'
Uber can deny that it fires drivers for criticizing the company. But it may have tipped its hand two weeks ago when it fired Chris Ortiz, an Albuquerque-area driver, for "hateful statements regarding Uber on social media." After Ortiz posted about his canning, Uber quickly backpedaled, rehired him and called the move "an error by the local team."
Of course, some driver deactivations make sense. Uber and Lyft have both said it's their policy to fire drivers who are accused of assaulting or harassing drivers, and they both allude to cutting drivers with ratings below around a 4.5 or 4.6, which can weed out bad drivers. But as my colleague Jeff Bercovici pointed out, the star ratings can be a wildly arbitrary specter that haunts worried drivers so much they will even beg riders not to give them anything below five stars for fear of losing their job.
And the more innocuous offenses that drivers have lost their jobs over aren't listed clearly anywhere. When I asked Uber's spokeswoman for a deactivation policy, this vague manifesto was all she sent me. Lyft's spokeswoman pointed to FAQ pages that mention ride acceptance rate and driver ratings as "metrics to make sure everything runs smoothly." Uber's partner agreement lists violations like not having insurance or losing your license. Nothing about how "any more tweets of this nature" could lose you your job -- but drivers still know it's a danger.
"If Uber doesn't like something that you say about them, they are free to fire you and you'll never even know what it was that caused your termination," said Harry Campbell, who runs a driver blog.
How Firing Someone Can Make Them An Employee
Uber holds the keys to drivers' ability to work, and a lot of drivers assume this is just the way things are. But here's the great irony: The more Uber fires its drivers, the less it has the right to, legally speaking.
"The ability to fire at will is an important factor in showing a company's workers are employees, not independent contractors," said Shannon Liss-Riordan, a Boston attorney who's leading a class-action lawsuit against Uber. The suit alleges, among other things, that Uber's drivers are misclassified as independent contractors instead of as employees, a setup that saves Uber huge amounts of money they would otherwise pay to driver benefits and car expenses. Lyft is facing a similar suit from a driver.
The independent contractor model, which is the backbone of almost every on-demand service startup, can help companies save huge amounts of money, from startups to $18 billion ones like Uber. Companies whose workforce is mostly independent contractors don't have to pay for driver expenses, worker's compensation, sick days, health insurance, or any of those "pesky labor costs," Liss-Riordan said.
'Can't Have It Both Ways'
The courts will decide, with the Uber case and with the rest that will follow, whether these workers are truly independent contractors, a classification that depends on many factors, not just the ability to fire. And as of late, it's not looking very promising for the employers.
A federal appeals court ruled in August that FedEx drivers are employees, not independent contractors, a decisions that attorneys said could have serious implications for "sharing economy"-type companies that rely on that model. And a California Supreme Court ruling from June also said that newspaper carriers had been illegally misclassified as independent contractors.
The deciding factor? The company's ability to fire the workers. "Perhaps the strongest evidence of the right to control is whether the hirer can discharge the worker without cause," the opinion said.
Labor attorneys believe that Uber and Lyft drivers are in the same boat. "Drivers' economics are 100 percent controlled by the company, there are consequences for not accepting fares, their work performance is monitored, and they can be terminated and deactivated at any time for any reason," said Beth Ross, the attorney who litigated the FedEx case. "Those are the most important facts."
It's unclear what Uber and Lyft's firing policies would have to look like in order to comply with independent contractor requirements. And the companies should always have some control over who drives on their platform, especially when it comes to safety concerns. But when it comes to dealing with disgruntled or underperforming drivers, simply firing them -- especially without clear reasons why -- could land the companies in trouble in court in the next few years.
"They really can't have it both ways," Liss-Riordan said. "If they want to have that level of control, to sell a service to the public that is down to the detail what they're selling, they can't do it doing using independent contractors."
