With Uber’s new no-firearms policy prohibiting both drivers and riders from possessing a firearm of any kind in the vehicle, the network transportation service is facing more questions as to how far the company and other app-driven companies in the on-demand economy can go in controlling the behavior of independent contractors without running afoul of the law.
Kellen Myers, an attorney with Detroit-based management side labor and employment law firm Nemeth Law PC, says the key issue with Uber, already embroiled in a multi-front battle defending its classification of its drivers as independent contractors rather than employees, is the new gun policy regulates a driver’s otherwise lawful behavior.
“The recent change by Uber was prompted, in part, by an incident in late April where an Uber driver in Chicago shot and wounded a gunman who opened fire on a crowd of people,” Myers said. “The Uber driver’s actions were ultimately considered lawful because he had a concealed carry permit and acted in defense of himself and others.”
Prior to this incident, Uber did not have a weapons restriction policy of any kind.
“The new policy by Uber is noteworthy in how it regulates a driver’s otherwise lawful behavior. For example, under Michigan’s concealed handgun law, an Uber driver would be permitted to carry a concealed weapon if properly licensed,” Myers said. “With Uber’s policy change, the driver is now restricted from doing so or risk losing his or her ability to use Uber’s software platform.”
Generally, courts and government agencies look to the amount of control a company exerts over a worker to determine whether that worker is properly classified as an independent contractor or an employee. In essence, the more control exerted by the company the less the worker appears like an independent contractor.
“Improper classification of workers by employers can lead to significant liability and bring unwanted lawsuits or agency investigations,” Myers said. “Uber’s policy change and legal battles have brought more attention to employer use of independent contractors overall and in the on-demand worker economy. Employers need to be particularly aware of their use of these workers and craft an appropriate business strategy taking worker issues into consideration.”
Myers says companies that plan on using on-demand workers as a business strategy need to consider the following:
• The pros and cons of using an independent contractor/on-demand worker versus a full or part-time employee, including wages, benefits, taxes, insurance, the potential of misclassifying the individuals and, from a talent perspective, whether a company can grow and sustain itself and build value using an on-demand worker model.
• Conducting an audit to insure the individual is properly classified as an on-demand worker/independent contractor.
• Making sure the audit conducted looks at applicable classification tests the U.S. Department of Labor uses, as well as the Internal Revenue Service and the State of Michigan.
• Involving a corporate accountant, corporate attorney and employment attorney before adopting a specific employment model to insure all bases are covered.
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