Uber Says Its Drivers Are Independent. Independent of What?

By Michael J. Epstein, Esq.   A rideshare driver can choose when to turn on an app. He can reject a trip. He can drive for a competitor. He supplies his own car, chooses his clothes and generally decides which route to take. Those facts helped persuade a Georgia judge this week that an Uber driver was an independent contractor rather than an employee — and, as a result, that Uber could not be held vicariously liable in a lawsuit brought by a woman who says she was catastrophically injured in a 2021 crash. Legally, the distinction mattered enormously. But there is a larger question worth asking. Independent of what? The case arose from an April 2021 collision in Georgia. According to the plaintiff’s lawsuit, she was riding as a passenger on a motorcycle when an Uber driver allegedly failed to yield while making a left turn and struck the motorcycle. The injuries described in the litigation are staggering. The plaintiff’s attorney says she spent more than 60 days in the hospital, has medical expenses exceeding $1 million and will require care for the rest of her life. Yet on August 24, the court granted summary judgment to the Uber corporate defendants. The driver remains in the case. Uber does not. The court’s reasoning is understandable under the traditional legal framework used to distinguish employees from independent contractors. The driver decided when to work. Uber did not withhold his taxes or pay him a salary or benefits. He reported to no supervisor. He supplied his own vehicle and could use a competing platform. Those are real facts. So are some others. The driver was transporting passengers obtained through Uber’s platform. The commercial transaction existed because Uber created the system that connected driver and passenger. Uber benefits financially when rides occur. The entire enterprise depends upon thousands of people getting into cars driven by people they know only because an app told them to. That is what makes rideshare litigation such a fascinating test of legal rules developed for a different economy. The old image of an independent contractor is fairly easy to understand. You hire a plumber to repair a pipe. The plumber owns a business, brings tools, decides how to perform the job and leaves when the work is finished. Nobody would reasonably suggest that you have become the plumber’s employer. An app-based transportation network is different. Uber does not merely encounter drivers in the marketplace. It built the marketplace. That does not automatically make every driver an employee, nor should it automatically make a rideshare company responsible for every collision involving someone using its app. The legal analysis is considerably more complicated than that. But calling someone an “independent contractor” should not end the inquiry into corporate responsibility before we have asked the questions that matter. Who created the system? Who establishes the requirements for participating in it? Who controls access to customers? Who collects money from the transaction? Who possesses information about what was happening on the platform before a crash? Who is in the best position to identify dangerous patterns involving drivers using that platform? And, importantly, who profits from the activity that creates the risk? These questions matter well beyond Uber. We have built an enormous part of the modern economy around platforms that occupy an unusual legal position. They can exercise tremendous influence over how a marketplace operates while maintaining substantial distance from the individuals performing the underlying work. That model has obvious benefits. It has created flexibility for workers and extraordinary convenience for consumers. It can also produce an accountability problem when something goes terribly wrong. I practice law in New Jersey, not Georgia, and the legal rules governing rideshare accidents vary by jurisdiction. New Jersey has its own statutory framework governing transportation network companies, including insurance requirements intended to protect people injured in rideshare-related crashes. But the Georgia decision should still interest anyone who handles serious injury cases because the tension it illustrates is national. Technology changes faster than legal categories do. For decades, courts have looked to concepts such as supervision, scheduling and control over the manner in which work is performed to decide whether someone is an employee or an independent contractor. Those concepts made intuitive sense in a world of factories, offices, foremen and time clocks. Control in the platform economy can look different. It can be exercised through access rather than a supervisor. Through software rather than a manager. Through rules embedded in a platform rather than instructions delivered across a desk. The law has to be sophisticated enough to recognize that difference without simply declaring everyone who uses an app an employee. That is the balance we should be trying to find. Because there is something deeply unsatisfying about a system in which corporate involvement can be substantial enough to create and profit from an entire transportation network, yet potentially insufficient to create responsibility when the transportation facilitated by that network causes catastrophic harm. Maybe the Georgia appellate courts will agree with the trial judge. Maybe they will not. The plaintiff’s attorney has already said he intends to appeal. Either way, this case deserves attention for a reason larger than its eventual outcome. The central legal question of the platform economy is no longer simply whether workers are employees or independent contractors. It is whether our definitions of responsibility have kept pace with the businesses we are using them to regulate. A company can build a platform without driving the car. It can design a marketplace without sitting in the passenger seat. It can connect millions of people without ever meeting most of them. The harder question is whether distance from the steering wheel should always mean distance from accountability. That is a question our courts and legislatures are going to be answering for years to come.

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