Over the last week, Shannon Liss-Riordan, the lawyer representing drivers in the big California class-action lawsuit against Uber, filed a flurry of motions requesting that the trial be decided by a judge and not face a jury. Her reasoning: The issue of whether drivers are independent contractors or employees in this suit is a legal matter, and not a factual one.
The facts of the case themselves—how many hours drivers work, how their schedules are set, who pays expenses, and so on—aren’t in dispute, Liss-Riordan argues. The question is how those facts are interpreted under a series of legal factors, known as the Borello test, to determine whether someone is a contractor or employee.
But the federal judge in the case disagreed, determining in a Dec. 23 ruling that the matter of employment classification is a “mixed question of law and fact.” He also said that several facts are indeed in dispute, such as whether Uber can fire its drivers at will. The trial will go in front of a jury in June 2016.
Lest this all sound a bit far into the legal weeds, keep in mind: Uber’s biggest defense against the class action thus far—the statement it has repeatedly trotted out—is that drivers love working for Uber and setting their own schedules, and could lose that flexibility if they were declared employees. This, Liss-Riordan says, is “the big threat that Uber is holding out” to distract from the legal issues in the lawsuit.
When I met Liss-Riordan in her Boston office recently, she said she accepts that drivers like being able to set their own schedules, but that it’s not relevant to the legal question. And she’s worried that while a judge will see the distinction, a jury may not.
On this last point, Uber agrees. The company wrote in a brief filed this week that the plaintiffs in the case “fear that a jury will reach the common sense conclusion” that drivers for its service aren’t employees under California law.
“We are pleased that the court denied plaintiffs’ counsel’s latest attempt to avoid a jury,” Jessica Santillo, an Uber spokeswoman, said.