* Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
* Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
* Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
Uber drivers are employees under all three tests. Uber tells them where to go and when to go. Uber controls the pricing and payments. Uber has an ongoing relationship with their drivers and it's a key aspect of the business.
Mechanical Turk could argue independent contractor. Anyone can take a Mechanical Turk task when they want, and Amazon doesn't control how they do it. Amazon doesn't set the prices; it's more of a bid system. Whether the relationship is ongoing is a question.
If the US had enforcement of labor law that was anywhere near as strong as traffic or drug laws, Uber would be out of business by now.
Can't Uber drivers start being drivers or stop being drivers whenever they want on their phone, other then when they are driving someone? Can't they choose which customers to take? Using their own cars? Many drivers have 4 apps open at once and then turn off the others when they accept a pickup. Couldn't you just call them lead sourcing companies?
Your interpretation of "behavioral" is flawed. Uber drivers are not told "when and where" to go. They are offered the opportunity to go somewhere and pick someone up. It is completely at their convenience and option to do this; they will suffer no privation if they fail to pick up the offered lead. It's not like a traditional employer-employee relationship, where the employer buys time from the employee and directs it as he sees fit. The employer is buying the execution of a discrete task, not a large chunk of the employee's time.
Your analysis of "Type of Relationship" is also flawed. Uber does not supply any employee-style benefits, and they do not rely on specific drivers to carry out "key aspects" of the business beyond the discrete work units they've wilfully contracted to perform at their convenience. There is no ongoing expectation that any particular driver will drive at any point in the future.
There is no boss to call Uber drivers and say "Please, you are killing us by not picking up your shift tonight".
I think the differences between traditional employment relationships and gig providers are pretty clear. I expect these lawsuits are just from people trying to get big settlements, since it's pretty obvious opting to bring someone a Jamba Juice on TaskRabbit once every 2 months is a lot different than a 9-5.
"It is completely at their convenience and option to do this; they will suffer no privation if they fail to pick up the offered lead."
No. Pando Daily writes "Uber drivers are, after, all independent contractors ... On the surface, it seems they should be free to accept or reject any ride they choose. According to forum comments, however, Uber drivers are required to maintain a minimum 80 percent ride acceptance rate to remain in the company’s good graces – the best performers exceed 97 percent, the company tells its drivers. Ignore too many inbound ride requests when you are the closest vehicle and the result could be some combination of reprimand/probation, lost bonus income, or, in extreme cases, deactivation of the driver’s account."
"There is no boss to call Uber drivers and say "Please, you are killing us by not picking up your shift tonight".
Yes, there is, although it may not be human. It texts, bugging drivers to get out there and drive during "surge" periods.[2]
* Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
* Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
* Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
Uber drivers are employees under all three tests. Uber tells them where to go and when to go. Uber controls the pricing and payments. Uber has an ongoing relationship with their drivers and it's a key aspect of the business.
Mechanical Turk could argue independent contractor. Anyone can take a Mechanical Turk task when they want, and Amazon doesn't control how they do it. Amazon doesn't set the prices; it's more of a bid system. Whether the relationship is ongoing is a question.
If the US had enforcement of labor law that was anywhere near as strong as traffic or drug laws, Uber would be out of business by now.
[1] http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employ...