Don't forget to mention the Rideshare Professor when applying: Employee misclassification by employers as it pertains to independent contractors is a widespread phenomenon in the United States and California. In August 2018 the California Supreme Court adopted the “ABC test” to determine if the classification of workers. In order for its workers to be properly classified as independent contractors under the ABC test, the employer must show:
(A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, and
(B) the work performed is outside the usual course of the hiring entity’s business, and
(C) the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.
Again, the employer must prove all three. Companies such as Uber and Lyft can’t get past “B.” If the work was painting their office, Uber would have a good argument for “B” because Uber is not in the business of painting. Uber and Lyft are ride-hailing phone applications so they will not be able to argue their drivers are “outside the usual course of the hiring entity’s business.”
The costs of misclassification are staggering. As employees, drivers are entitled to reimbursement of all expenses (including 58 cents for every mile driven — not just when a customer is in the car), workers’ compensation benefits, unemployment benefits, paid rest periods, meal breaks, minimum wage, overtime, FICA tax contribution, hourly pay for all unproductive time (time spent washing car, fueling car, waiting for ride requests, driving to pick up customers, having vehicle serviced…). The statute of limitations for these claims is 4 years, so the employee is entitled to recover damages suffered over the entire past 4 years.
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