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1133O’CONNOR v. UBER TECHNOLOGIES, INC.Cite as 82 F.Supp.3d 1133 (N.D.Cal. 2015)

unlawful, an injunction requiring Facebookto change its practices regarding transac-tions with minors, and restitution. SeeTAC at p. 20. Like in Ries, this Courtdenies certification of Plaintiffs’ restitutionclaims, but that denial does not preclude itfrom granting certification of Plaintiffs’ in-junctive and declaratory relief claims.

IV. ORDER

For the foregoing reasons, the CourtGRANTS Plaintiffs motion to certify thefollowing class and subclass for claims fordeclaratory and injunctive relief underRule 23(b)(2):

All Facebook users who are or wereminor children according to Facebook’sown records for the four years preced-ing the date on which the original com-plaint was filed through the date onwhich a class is certified (‘‘the MinorClass’’). Within the Minor Class is asubclass of Minors from whose Face-book accounts Facebook Credits werepurchased. (‘‘the Minor Purchasing Sub-class’’).

Plaintiffs’ motion to certify this sameclass and subclass for restitution or othermonetary relief under Rule 23(b)(2) is DE-NIED, without prejudice. Inasmuch asPlaintiffs seek to certify this class andsubclass under Rule 23(b)(3), that motionis also DENIED, without prejudice.

IT IS SO ORDERED.

,

Douglas O’CONNOR, et al., Plaintiffs,

v.

UBER TECHNOLOGIES, INC.,et al., Defendants.

No. C–13–3826 EMC

United States District Court,N.D. California.

Signed March 11, 2015

Background: Drivers who provided pas-senger car services for customers hailingthem through mobile phone applicationbrought putative class action against appli-cation’s developer, alleging they were mis-classified as independent contractors andwere entitled to protections of CaliforniaLabor Code. Developer moved for sum-mary judgment.

Holdings: The District Court, Edward M.Chen, J., held that:

(1) under California law, drivers were pre-sumptively developer’s employees;

(2) genuine issue of material fact existedas to whether drivers could be termi-nated at will; and

(3) genuine issue of material fact existedas to the extent of control exerted overdrivers by developer.

Motion denied.

1. Labor and Employment O55

Under California law, once a plaintiffcomes forward with evidence that he pro-vided services for an employer, the em-ployee has established a prima facie casethat the relationship was one of employ-er/employee; the fact that one is perform-ing work and labor for another is primafacie evidence of employment and suchperson is presumed to be a servant in theabsence of evidence to the contrary.

1134 82 FEDERAL SUPPLEMENT, 3d SERIES


Under California law, if a putativeemployee establishes a prima facie case,that is, shows he or she provided servicesto a putative employer, the burden thenshifts to the employer to prove, if it can,that the presumed employee was an inde-pendent contractor.


Under California law, drivers whoprovided passenger car services for cus-tomers hailing them through mobile phoneapplication provided service to applica-tion’s developer, and therefore, were pre-sumptively developer’s employees, ratherthan independent contractors, as requiredfor drivers to be entitled to protections ofCalifornia Labor Code, despite developer’sassertion that it was only a technologycompany; developer engineered softwarethat enabled customers to book and re-ceive rides, developer would not be viablebusiness entity without drivers, its revenuedid not depend on distribution of its soft-ware, but on generation of rides by driv-ers, fares were set by developer withoutinput from drivers, developer billed cus-tomers for entire amount of fare and thenpaid drivers 80% of the fare, drivers wereprohibited from answering customer ques-tions about booking future rides outsidethe application, and developer exercisedsubstantial control over qualification andselection of drivers. Cal. Lab. Code § 1 etseq.


Under California law, the determina-tion of employee or independent contractorstatus is one of fact if dependent uponresolution of disputed evidence or infer-ences; only if the evidence is undisputed,and there is but one inference that canreasonably be drawn from the evidence,does the question become one of law.

5. Federal Civil Procedure O2497.1

Genuine issue of material fact existedas to whether drivers who provided pas-senger car services for customers hailingthem through mobile phone applicationcould be terminated at will by application’sdeveloper, precluding summary judgmentin drivers’ putative class action againstdeveloper, alleging they were misclassifiedas independent contractors and were enti-tled to protections of California LaborCode. Cal. Lab. Code § 1 et seq.


The principal test of an employmentrelationship under California law is wheth-er the person to whom service is renderedhas the right to control the manner andmeans of accomplishing the result desired.

7. Federal Civil Procedure O2497.1

Genuine issue of material fact existedas to the extent of control exerted overdrivers who provided passenger car ser-vices for customers hailing them throughmobile phone application by application’sdeveloper, precluding summary judgmentin drivers’ putative class action againstdeveloper, alleging they were misclassifiedas independent contractors and were enti-tled to protections of California LaborCode. Cal. Lab. Code § 1 et seq.

Adelaide Pagano, Ben Weber, SaraSmolik, Shannon Liss–Riordan, Lichten &Liss–Riordan, P.C., Boston, MA, AndrewPaul Lee, Goldstein, Borgen, Dardarian &Ho, Oakland, CA, Matthew David Carlson,Carlson Legal Services, San Francisco,CA, for Plaintiffs.

Robert Jon Hendricks, Caitlin VictoriaMay, Morgan, Lewis and Bockius LLP,John C. Fish, Jr., Littler Mendelson, PC,San Francisco, CA, Stephen A. Swedlow,


Quinn Emanuel Urquhart & Sullivan,LLP, Chicago, IL, Stephen LutherTaeusch, San Juan Bautista, CA, JamesParton, III, Parton Sell Rhoades PC,Larkspur, CA, for Defendants.

ORDER DENYING DEFENDANTUBER TECHNOLOGIES, INC.’SMOTION FOR SUMMARY JUDG-MENT

(Docket No. 211)

EDWARD M. CHEN, District Judge

Plaintiffs filed this putative class actionon behalf of themselves and other similarlysituated individuals who drive for Defen-dant Uber Technologies, Inc. See DocketNo. 201–2 (Second Amended Class ActionComplaint) (SAC). Plaintiffs claim thatthey are employees of Uber, as opposed toits independent contractors, and thus areeligible for various statutory protectionsfor employees codified in the CaliforniaLabor Code, such as a requirement that anemployer pass on the entire amount of anygratuity ‘‘that is paid, given to, or left foran employee by a patron.’’ Cal. Lab. Code§ 351; see also SAC at ¶¶ 27–28.

Pending before the Court is Uber’s mo-tion for summary judgment that Plaintiffsare independent contractors as a matter oflaw. As is discussed below, the Court firstconcludes that Plaintiffs are Uber’s pre-sumptive employees because they ‘‘per-form services’’ for the benefit of Uber.The Court next holds that whether anindividual should ultimately be classified asan employee or an independent contractorunder California law presents a mixedquestion of law and fact that must typicallybe resolved by a jury. Finally, because anumber of facts material to the employ-ee/independent contractor determinationin this case remain in dispute, the Courtdenies Uber’s summary judgment motion.

I. BACKGROUND

In a nutshell, Uber provides a servicewhereby individuals in need of vehiculartransportation can log in to the Uber soft-ware application on their smartphone, re-quest a ride, be paired via the Uber appli-cation with an available driver, be pickedup by the available driver, and ultimatelybe driven to their final destination. Uberreceives a credit card payment from therider at the end of the ride, a significantportion of which it then remits to thedriver who transported the passenger.

Named plaintiffs Douglas O’Connor andThomas Colopy drive principally forUber’s ‘‘UberBlack’’ service.1 See DocketNos. 212–1 (Colopy Depo.); 212–2 (O’Con-nor Depo). UberBlack drivers transportpassengers in black sedans (e.g., LincolnTowncars) or other limousine-like vehicles.Docket No. 223–37. O’Connor receivedaccess to a luxury vehicle through at leasttwo different companies, SF Bay and BayNetwork Limo. See O’Connor Depo. Tr.at 118:12–122:15 In exchange for providinga car and paying all of O’Connor’s ex-penses (e.g., fuel and tolls), SF Bay re-ceived sixty percent of O’Connor’s earn-ings from transporting Uber passengers.See id. at 124:12125:4. Bay Network Limoprovided O’Connor with a luxury vehiclefor a flat $735 weekly fee, which includedmaintenance and insurance on the vehicle,but no other expenses. See id. at135:4136:14. O’Connor was free to useBay Network Limo’s vehicle as much or aslittle as he chose. Id. at 135:16–136:3.Colopy had similar arrangements with twothird-party limousine companies that pro-vided him with a vehicle necessary to workas an UberBlack driver. See ColopyDepo. Tr. at 98:24–102:22; 126:11–129:4.

1. O’Connor’s account with Uber was termi-nated in 2014, but the other named Plaintiffs

still have active accounts with Uber. SeeDocket No. 211 at 5 n.7.


Named plaintiffs Matthew Manahan andElie Gurfinkel drive principally for Uber’s‘‘uberX’’ service. Docket Nos. 212–3 (Ma-nahan Depo.); 212–4 (Gurfinkel Depo.).uberX drivers transport passengers intheir own personal vehicles, which are typ-ically hybrids or other ‘‘mid-range’’ cars.Docket No. 223–37. Manahan, a self-em-ployed screenwriter in Los Angeles, drivesfor uberX, as well as Lyft and Sidecar, twoof Uber’s competitors. Manahan Depo.Tr. at 71:3–6; 92:18–21. Manahan trans-ports passengers in his personal vehicle—a2012 Kia Soul. Id. at 110:17–21. Gurfink-el began driving for uberX while he wasemployed full-time as a ‘‘fulfillment andproject manager’’ by a company calledADL Embedded Solutions. Gurfinkel Tr.at 43:4–13. Two months after he begandriving for Uber, Gurfinkel left his job atADL, and now drives for Uber full time.Id. at 57:17–24.

Before becoming ‘‘partners’’ with Uber,Plaintiffs and other aspiring drivers mustfirst complete Uber’s application process.See Docket No. 223–20; Docket No. 223–28. Applicants are required to uploadtheir driver’s license information, as wellas information about their vehicle’s regis-tration and insurance. Docket No. 223–28at 2. Applicants must also pass a back-ground check conducted by a third party.Id. at 3. Would-be drivers are furtherrequired to pass a ‘‘city knowledge test’’and attend an interview with an Uber em-ployee.2 Docket No. 223–20 at 6740;

Docket No. 22329 at 4. Interviewees areinstructed to ‘‘[b]ring your car, dress pro-fessionally and be prepared to stay for 1hour.’’ Docket No. 223–20 at 6740.

Once a prospective driver successfullycompletes the application and interviewstages, the driver must sign contracts withUber or one of Uber’s subsidiaries (RaiserLLC). See Docket No. 223–15 (Transpor-tation Provider Service Agreement) (Ser-vice Agreement); see also Docket No. 223–16 (Driver Addendum Related to UberServices) (Addendum).3 Those contractsexplicitly provide that the relationship be-tween the transportation providers andUber/Raiser 4 ‘‘is solely that of indepen-dent contracting parties.’’ See Addendumat 7; Service Agreement at 9. The parties‘‘expressly agree that this Agreement isnot an employment agreement or employ-ment relationship.’’ Addendum at 7; Ser-vice Agreement at 9. The relevant con-tracts further provide that drivers will bepaid a ‘‘fee’’ (i.e., fare) upon the successfulcompletion of each ride. According to anUber 30(b)(6) deponent, Uber sets faresbased principally on the miles traveled bythe rider and the duration of the ride.Coleman Depo. at 187:20–188:16. BecauseUber receives the rider’s payment of theentire fare, the relevant contracts providethat Uber will automatically deduct its own‘‘fee per ride’’ from the fare before it re-mits the remainder to the driver. SeeAddendum at 7; Service Agreement at 9.

2. If a potential driver fails the city knowledgetest, they ‘‘will not be able to interview untilthey get more familiar with the city.’’ DocketNo. 223–29 at 4. At least one version of the‘‘SF City Knowledge Test’’ contains fortyquestions, such as: ‘‘When driving on SunsetBlvd, how are the cross streets generallynamed,’’ and ‘‘True or False: The Museum ofModern Art (MOMA) and the Palace of FineArts are two names for the same place.’’Docket No. 238–6.

3. The Raiser Service Agreement is signed bydrivers on the uberX platform. The UberAddendum is signed by drivers on the Uber-Black platform.

4. Uber never materially distinguishes betweenitself and Raiser or argues that Raiser’s sepa-rate corporate status is relevant to this litiga-tion. Uber further admits Raiser is its subsid-iary. Colman Decl. at ¶ 7. Consequently, theCourt treats Raiser as equivalent to Uber forthe purpose of this motion, and refers to theseentities collectively as ‘‘Uber.’’


Plaintiffs presented evidence that Ubertypically takes roughly 20 percent of thetotal fare billed to a rider as its ‘‘fee perride.’’ See, e.g., Colopy Depo Tr. at128:15–19.

In this litigation, Uber bills itself as a‘‘technology company,’’ not a ‘‘transporta-tion company,’’ and describes the softwareit provides as a ‘‘lead generation platform’’that can be used to connect ‘‘businessesthat provide transportation’’ with passen-gers who desire rides. Docket No. 213(Colman Decl.) at ¶ 6. Uber notes that itowns no vehicles, and contends that itemploys no drivers. Id. Rather, Uberpartners with alleged independent contrac-tors that it frequently refers to as ‘‘trans-portation providers.’’ Id.

Plaintiffs characterize Uber’s business(and their relationship with Uber) differ-ently. They note that while Uber nowdisclaims that it is a ‘‘transportation com-pany,’’ Uber has previously referred toitself as an ‘‘On–Demand Car Service,’’ andgoes by the tagline ‘‘Everyone’s Private

Driver.’’ 5 See, e.g., Docket No. 223–3 at 1(Coleman Depo. Ex. 3); Docket No. 223–6at 1 (Onboarding Script) (‘‘Our tagline andvision is to be ‘Everyone’s Private Driv-er.’ ’’).6 Indeed, in commenting on Uber’splanned expansion into overseas markets,its CEO wrote on Uber’s official blog:‘‘We are ‘Everyone’s Private Driver.’ Weare Uber and we’re rolling out a transpor-tation system in a city near you.’’ DocketNo. 223–1 at 6 (emphasis added).7 OtherUber documents state that ‘‘Uber providesthe best transportation service in SanFranciscoTTTT’’ Docket No. 223–29 at 2.

Moreover, Uber does not sell its soft-ware in the manner of a typical distributor.Rather, Uber is deeply involved in market-ing its transportation services, qualifyingand selecting drivers, regulating and moni-toring their performance, disciplining (orterminating) those who fail to meet stan-dards, and setting prices.

In addition to contending it is a technol-ogy company and not a transportationcompany, Uber argues the drivers are not

5. The Court observes that Uber owns a U.S.trademark on ‘‘Everyone’s Private Driver.’’U.S. Trademark No. 85,816,634.

6. Uber objects to the Court considering theOnboarding Script (and a number of Plain-tiffs’ other exhibits) on the ground that Plain-tiffs did not properly lay a foundation forthese documents. See Uber Reply Br. at 5 n.7. Specifically, Uber objects that the Plain-tiffs have not established that any Plaintiffwas actually exposed to the information con-tained in the Onboarding Script or other con-tested documents such as an Uber Handbook.But the relevant legal question on summaryjudgment is whether the challenged evidence‘‘could be presented in an admissible form attrial.’’ Fraser v. Goodale, 342 F.3d 1032,1037 (9th Cir.2003) (emphasis added). SeeFed. R. Civ. P. 56(c)(2) (party may object tofacts that ‘‘cannot be presented in a form thatwould be admissible in evidence’’). If so, theCourt may consider such evidence on sum-mary judgment. Id. It is only where theevidence could never be presented in admissi-ble form that such evidence should be excisedfrom the summary judgment record. See

Fed. R. Civ. P. 56(c)(2); see also Hughes v.United States, 953 F.2d 531, 543 (9th Cir.1992) (noting that an affidavit containinghearsay and subject to best evidence rule ob-jections could still be considered on summaryjudgment because the facts underlying theaffidavit are of the type that would be admis-sible at trial even though the affidavit itselfmight not be admissible). The Court furthernotes that at the hearing, Uber’s counsel ac-knowledged that Uber does not dispute theauthenticity of a number of the contested ex-hibits and acknowledged that much of thisevidence was produced by Uber and/or isprinted on Uber’s letterhead. See Oral Arg.Hearing Tr. at 90:22–94:20.

7. The same blog post notes that Uber firstwent by the name ‘‘UberCab,’’ but laterchanged the name simply to ‘‘Uber’’ after theCity of San Francisco sent a cease-and-desistletter ‘‘saying amongst other things, that ourname UberCab means we are marketing our-selves as a cab company.’’ Id. at 3.


its employees but instead are independentcontractors, and therefore not entitled tothe protection of the California LaborCode as asserted herein. In this regard,Uber contends it exercises minimal controlover how its transportation providers actu-ally provide transportation services toUber customers, an important factor indetermining whether drivers are indepen-dent contractors. Among other things,Uber notes that drivers set their ownhours and work schedules, provide theirown vehicles, and are subject to little di-rect supervision. Plaintiffs vigorously dis-pute these contentions, and claim thatUber exercises considerable control andsupervision over both the methods andmeans of its drivers’ provision of transpor-tation services, and that under the applica-ble legal standard they are employees.For the reasons explained in this Order,based on the record before the Court, thequestion whether Uber’s drivers are em-ployees or independent contractors is anissue to be decided by a jury, not thisCourt on summary judgment.

II. DISCUSSION

A. Applicable Legal Standards

1. Summary Judgment Standard

This Court may only grant summaryjudgment in favor of Uber if ‘‘there is nogenuine dispute as to any material fact andthe movant is entitled to judgment as amatter of law.’’ Alexander v. FedExGround Package Sys., Inc., 765 F.3d 981,987 (9th Cir.2014). That is, Uber is enti-tled to summary judgment only if, viewingthe evidence in the light most favorable tothe drivers, this Court necessarily mustconclude that Plaintiffs are independentcontractors as a matter of law. See id. at988.

2. California’s Test of Employment

[1, 2] The parties agree that determin-ing whether Plaintiffs are employees or

independent contractors is an analysis thatproceeds in two stages. ‘‘First, under Cal-ifornia law, once a plaintiff comes forwardwith evidence that he provided services foran employer, the employee has establisheda prima facie case that the relationshipwas one of employer/employee.’’ Narayanv. EGL, Inc., 616 F.3d 895, 900 (9th Cir.2010) (citation omitted). ‘‘As the SupremeCourt of California has held TTT the factthat one is performing work and labor foranother is prima facie evidence of employ-ment and such person is presumed to be aservant in the absence of evidence to thecontrary.’’ Id. at 901. (citation and inter-nal quotation marks omitted) (internalmodifications omitted). If the putativeemployee establishes a prima facie case(i.e., shows they provided services to theputative employer), the burden then shiftsto the employer to prove, if it can, that the‘‘presumed employee was an independentcontractor.’’ Id. (citations omitted); seealso Yellow Cab Coop. Inc. v. Worker’sComp. Appeals Bd., 226 Cal.App.3d 1288,1294, 277 Cal.Rptr. 434 (1991) (explainingthat under California law there is ‘‘a pre-sumption that a service provider is pre-sumed to be an employee unless the princi-pal affirmatively proves otherwise’’).

For the purpose of determining whetheran employer can rebut a prima facie show-ing of employment, the Supreme Court’sseminal opinion in Borello ‘‘enumerated anumber of indicia of an employment rela-tionship.’’ Narayan, 616 F.3d at 901.The ‘‘most significant consideration’’ is theputative employer’s ‘‘right to control workdetails.’’ S.G. Borello & Sons, Inc. v.Dep’t of Indus. Relations (Borello), 48Cal.3d 341, 350, 256 Cal.Rptr. 543, 769P.2d 399 (1989). This right of control neednot extend to every possible detail of thework. Rather, the relevant question iswhether the entity retains ‘‘all necessarycontrol’’ over the worker’s performance.Id. at 357, 256 Cal.Rptr. 543, 769 P.2d 399


(emphasis in original); see also Air Couri-ers Int’l v. Emp’t Dev. Dep’t, 150 Cal.App.4th 923, 934, 59 Cal.Rptr.3d 37 (2007)(explaining that ‘‘the fact that a certainamount of freedom is allowed or is inher-ent in the nature of the work involved’’does not preclude a finding of employmentstatus).

The Supreme Court has further empha-sized that the pertinent question is ‘‘nothow much control a hirer exercises, buthow much control the hirer retains theright to exercise.’’ Ayala v. Antelope Val-ley Newspapers Inc., 59 Cal.4th 522, 533,173 Cal.Rptr.3d 332, 327 P.3d 165 (2014)(citation omitted) (emphases in the origi-nal). When evaluating the extent of thatcontrol, the Supreme Court has stressedthat an employer’s ‘‘right to discharge atwill, without cause’’ is ‘‘strong evidence insupport of an employment relationship.’’Borello, 48 Cal.3d at 350, 256 Cal.Rptr.543, 769 P.2d 399; see also Ayala, 59Cal.4th at 531, 173 Cal.Rptr.3d 332, 327P.3d 165 (characterizing the right to dis-charge without cause as ‘‘[p]erhaps thestrongest evidence of the right to con-trol’’); Narayan, 616 F.3d at 900 (charac-terizing the right to discharge at will asthe ‘‘most important’’ factor for determin-ing whether an employment relationshipexists). This is because the ‘‘power of theprincipal to terminate the services of theagent [without cause] gives him the meansof controlling the agent’s activities.’’ 8

Ayala, 59 Cal.4th at 531, 173 Cal.Rptr.3d332, 327 P.3d 165 (citations omitted).

The putative employer’s right to controlwork details is not the only relevant factor,however, and the control test cannot be‘‘applied rigidly and in isolation.’’ Borello,48 Cal.3d at 350, 256 Cal.Rptr. 543, 769P.2d 399. Thus, the Supreme Court has

also embraced a number of ‘‘secondaryindicia’’ that are relevant to the employ-ee/independent contractor determination.Id. These additional factors include:

(a) whether the one performing servicesis engaged in a distinct occupation orbusiness; (b) the kind of occupation,with reference to whether, in the locali-ty, the work is usually done under thedirection of the principal or by a special-ist without supervision; (c) the skill re-quired in the particular occupation; (d)whether the principal or the worker sup-plies the instrumentalities, tools, and theplace of work for the person doing thework; (e) the length of time for whichthe services are to be performed; (f) themethod of payment, whether by the timeor by the job; (g) whether or not thework is a part of the regular business ofthe principal; and (h) whether or not theparties believe they are creating the re-lationship of employer-employee.

Id. at 351, 256 Cal.Rptr. 543, 769 P.2d 399.Borello also ‘‘approvingly cited’’ five addi-tional factors (some overlapping or closelyrelated to those outlined immediatelyabove) for evaluating a potential employ-ment relationship. Narayan, 616 F.3d at900. These additional factors include:

(1) the alleged employee’s opportunityfor profit or loss depending on his mana-gerial skill; (2) the alleged employee’sinvestment in equipment or materialsrequired for his task, or his employmentof helpers; (3) whether the service ren-dered requires a special skill; (4) thedegree of permanence of the workingrelationship; and (5) whether the servicerendered is an integral part of the al-leged employer’s business.

8. The Supreme Court noted that the ‘‘work-er’s corresponding right to leave is similarlyrelevant: ‘An employee may quit, but an inde-pendent contractor is legally obligated to

complete his contract.’ ’’ Ayala, 59 Cal.4th at531 n. 2, 173 Cal.Rptr.3d 332, 327 P.3d 165(quoting Perguica v. Indus. Accident Comm’n,29 Cal.2d 857, 179 P.2d 812 (1947)).


Borello, 48 Cal.3d at 355, 256 Cal.Rptr.543, 769 P.2d 399. While the SupremeCourt explained that all thirteen of theabove ‘‘secondary indicia’’ are helpful indetermining a hiree’s employment status,it noted that ‘‘the individual factors cannotbe applied mechanically as separate tests;they are intertwined and their weight de-pends on particular combinations.’’ Id. at351, 256 Cal.Rptr. 543, 769 P.2d 399.Moreover, the Court made it ‘‘clear thatthe label placed by the parties on theirrelationship is not dispositive, and subter-fuges are not countenanced.’’ Alexander,765 F.3d at 989 (quoting Borello, 48 Cal.3dat 349, 256 Cal.Rptr. 543, 769 P.2d 399)(internal modifications omitted). Thus, asthe Ninth Circuit explained in Narayan,the fact-finder must ‘‘assess and weigh allof the incidents of the relationship with theunderstanding that no one factor is deci-sive, and that it is the rare case where thevarious factors will point with unanimity inone direction or the other.’’ Narayan, 616F.3d at 901 (citation omitted).

Indeed, this Court’s extensive survey ofthe caselaw confirms that no one Borellofactor is dispositive when analyzing em-ployee/independent contractor status. Forinstance, in Mission Ins. Co. v. Workers’Comp. Appeals Bd., the Court of Appealreversed a determination made by theWorkers’ Compensation Appeals Boardthat an individual was an employee of hisputative employer. 123 Cal.App.3d 211,213, 176 Cal.Rptr. 439 (1981). The Courtof Appeal held instead that the individualwas an independent contractor as a matterof law. Id. at 219, 176 Cal.Rptr. 439. Onepiece of evidence the Court of Appeal re-lied on in reaching this conclusion was thatwhereas a ‘‘regular employee applicantworked a normal eight-hour shift,’’ plaintiff‘‘did not work any specific hours.’’ Id. at216, 176 Cal.Rptr. 439. But the same wastrue of the putative employee in a latercase, where the Court of Appeal deter-mined that an employment relationship did

exist as a matter of law. See Air CouriersInt’l, 150 Cal.App.4th at 926, 59 Cal.Rptr.3d 37 (package delivery drivers wereemployees of their courier company as amatter of law even though ‘‘individual driv-ers determined their own schedules anddecided when and how long to work’’); seealso JKH Enterprises, Inc. v. Dep’t ofIndus. Relations, 142 Cal.App.4th 1046,1052, 48 Cal.Rptr.3d 563 (2006) (holdingthat delivery drivers were employees ofcourier service, despite the fact that ‘‘driv-ers set their own schedules’’).

The flexibility (and variability) of theBorello test can further be demonstratedby comparing Mission with Alexander.In Mission, the Court of Appeal found theputative employee was an independentcontractor despite the fact that he wasrequired to wear a uniform displaying hisputative employer’s insignia. Mission Ins.Co., 123 Cal.App.3d at 217, 176 Cal.Rptr.439. Yet, the same fact supported a con-clusion in Alexander that plaintiffs wereFedEx’s employees as a matter of law.Alexander, 765 F.3d at 987 (noting thatthe fact that drivers were required to‘‘wear a FedEx uniform’’ supported findingof employee status) (internal quotationmarks omitted). And while in Mission,the Court of Appeal found independentcontractor status at least in part becausethe putative employee used his own per-sonal vehicle while on the job, 123 Cal.App.3d at 216, 176 Cal.Rptr. 439, the samefact has proved not to be dispositive inAlexander and in numerous other Califor-nia cases where an employment relation-ship was found. See Alexander, 765 F.3dat 986 (‘‘FedEx requires its drivers toprovide their own vehicles’’); Air CouriersInt’l, 150 Cal.App.4th at 927, 59 Cal.Rptr.3d 37 (‘‘Drivers supplied their ownvehicles TTT when delivering for [defen-dant]’’); JKH Enterprises, Inc., 142 Cal.App.4th at 1051, 48 Cal.Rptr.3d 563 (‘‘All


drivers TTT use their own vehicles to makethe deliveries.’’).

Put simply, the cases bear out the Su-preme Court’s exhortation that the weightgiven to the Borello factors ‘‘depends on[their] particular combinations.’’ Borello,48 Cal.3d at 351, 256 Cal.Rptr. 543, 769P.2d 399. It is with these principles inmind that the Court now turns to themerits of Uber’s summary judgment mo-tion.

B. The Plaintiffs Are Uber’s Presump-tive Employees Because They Providea Service to Uber

[3] If Plaintiffs can establish that theyprovide a service to Uber, then a rebutta-ble presumption arises that they areUber’s employees. See Narayan, 616F.3d at 900; Yellow Cab Coop., 226 Cal.App.3d at 1294, 277 Cal.Rptr. 434. Uberargues that the presumption of employ-ment does not apply here because Plain-tiffs provide it no service. The centralpremise of this argument is Uber’s conten-tion that it is not a ‘‘transportation compa-ny,’’ but instead is a pure ‘‘technology com-pany’’ that merely generates ‘‘leads’’ for itstransportation providers through its soft-ware. Using this semantic framing, Uberargues that Plaintiffs are simply its cus-tomers who buy dispatches that may ormay not result in actual rides. In fact,Uber notes that its terms of service withriders specifically state that Uber is underno obligation to actually provide riderswith rides at all.9 Thus, Uber passes itself

off as merely a technological intermediarybetween potential riders and potentialdrivers. This argument is fatally flawed innumerous respects.

First, Uber’s self-definition as a mere‘‘technology company’’ focuses exclusivelyon the mechanics of its platform (i.e., theuse of internet enabled smartphones andsoftware applications) rather than on thesubstance of what Uber actually does (i.e.,enable customers to book and receiverides). This is an unduly narrow frame.10

Uber engineered a software method toconnect drivers with passengers, but thisis merely one instrumentality used in thecontext of its larger business. Uber doesnot simply sell software; it sells rides.Uber is no more a ‘‘technology company’’than Yellow Cab is a ‘‘technology compa-ny’’ because it uses CB radios to dispatchtaxi cabs, John Deere is a ‘‘technologycompany’’ because it uses computers androbots to manufacture lawn mowers, orDomino Sugar is a ‘‘technology company’’because it uses modern irrigation tech-niques to grow its sugar cane. Indeed,very few (if any) firms are not technologycompanies if one focuses solely on howthey create or distribute their products.If, however, the focus is on the substanceof what the firm actually does (e.g., sellscab rides, lawn mowers, or sugar), it isclear that Uber is most certainly a trans-portation company, albeit a technologicallysophisticated one. In fact, as noted above,Uber’s own marketing bears this out, re-

9. The fact that Uber’s Terms of Service appar-ently disclaim any actual obligation to provideits passengers with transportation serviceswould likely come as a surprise to those nu-merous riders who successfully use Uber toobtain such services. In any event, Uber haspresented no evidence that it actually fails topair its riders with a driver on a regular basis,or that drivers pay it for leads even whenthose leads do not result in actual rides. Atleast on this last point, the evidence is clearly

the opposite: Uber is only paid when a ‘‘lead’’results in a completed ride.

10. Indeed, Uber’s own documents show thatit characterizes itself as a transportation com-pany, transportation network, or on-demandcar service. See, e.g., Docket No. 223–1 at 6;Docket No. 223–29 at 2. The Court furthernotes with interest that the California PublicUtilities Commission has classified Uber as a‘‘transportation network company.’’ SeeDocket No. 223–11.


ferring to Uber as ‘‘Everyone’s PrivateDriver,’’ and describing Uber as a ‘‘trans-portation system’’ and the ‘‘best transpor-tation service in San Francisco.’’ SeeDocket No. 223–1 at 6; Docket No. 223–29at 2.

Even more fundamentally, it is obviousdrivers perform a service for Uber becauseUber simply would not be a viable busi-ness entity without its drivers.11 See Yel-low Cab Coop., 226 Cal.App.3d at 1293–1294, 277 Cal.Rptr. 434 (holding that cabdrivers provided service to cab companybecause ‘‘the enterprise could no more sur-vive without [drivers] than it could withoutworking cabs’’); see also JKH Enterprises,142 Cal.App.4th at 1054, 48 Cal.Rptr.3d563 (finding that delivery drivers were em-ployees of courier service as a matter oflaw in part because ‘‘the worker’s dutiesare an integral part of the operation,’’ and‘‘their work is the basis for [defendant’s]business’’). Uber’s revenues do not de-pend on the distribution of its software,but on the generation of rides by its driv-ers. As noted above, Uber bills its ridersdirectly for the entire amount of the farecharged—a fare amount that is set byUber without any input from the drivers.See Coleman Depo. Tr. at 165:2–21;187:20–188:16; Docket No. 223–38. Uberthen pays its drivers eighty percent of thefare it charges the rider, while keeping theremaining twenty percent of the fare as itsown ‘‘service fee.’’ See, e.g., ServiceAgreement at 4; Colopy Depo Tr. at128:15–19; Docket No. 223–62. Put sim-ply, the contracts confirm that Uber onlymakes money if its drivers actually trans-port passengers.

Furthermore, Uber not only depends ondrivers’ provision of transportation ser-

vices to obtain revenue, it exercises signifi-cant control over the amount of any reve-nue it earns: Uber sets the fares itcharges riders unilaterally. See ColemanDepo. Tr. 165:2–21; 167:21–168:21; DocketNo. 223–62. The record also shows thatUber claims a ‘‘proprietary interest’’ in itsriders, which further demonstrates thatUber acts as more than a mere passiveintermediary between riders and drivers.For instance, Uber prohibits its driversfrom answering rider queries about book-ing future rides outside the Uber app, orotherwise ‘‘soliciting’’ rides from Uber rid-ers. See, e.g., Handbook at 7 (providingthat actively soliciting business from a cur-rent Uber client is categorized as a ‘‘ZeroTolerance’’ event that ‘‘may result in im-mediate suspension from the Uber net-work.’’ By contrast, ‘‘passive client solici-tation (e.g., business cards or brandedequipment in backseat)’’ is categorized as a‘‘Major’’ issue that Uber ‘‘takes very seri-ously and will take action if you receivemore than one in every 180 trips’’); On-boarding Script at 10 (stating that if arider specifically asks drivers about ‘‘ar-ranging pickups, tell them to reach out toUber’’); Docket No. 223–13 at 6 (statingthat riders cannot request specific Uberdrivers).

As further indicia of its role as a trans-portation company rather than a softwareprovider, Uber exercises substantial con-trol over the qualification and selection ofits drivers. Before becoming ‘‘partners’’with Uber, aspiring drivers must first com-plete Uber’s application process, includinga background check, city knowledge exam,vehicle inspection, and personal interview.See generally Docket No. 223–20; DocketNo. 223–28. In an internal document ti-

11. While Uber’s lawyers refuse to admit thisfact, at least one Uber General Manager ap-pears to have recognized as much in an Ubertraining video presented to its drivers: ‘‘It’spretty clear to all of us [at Uber] that without

what you guys do every week and every daywe wouldn’t have a company. We are not outthere. You guys are out there and you guysare the best at what you do.’’ Docket No.223–14.


tled ‘‘SF Hiring Freeze & Quality Push,’’Uber stresses that these screening meas-ures are important because ‘‘Uber pro-vides the best transportation service TTT

and to keep it this way, we will be takingsome major steps to improve both driverand vehicle quality on the Uber system.’’Docket No. 223–29 at 2. In another docu-ment, Uber notes that background checksare important because it only wants ‘‘topartner with the safest drivers.’’ DocketNo. 223–28 at 3.12 And Uber documentsfurther reveal that Uber regularly termi-nates the accounts of drivers who do notperform up to Uber’s standards. See, e.g.,Docket No. 223–29 at 2 (‘‘We will be deac-tivating Uber accounts regularly of driverswho are in the bottom 5% of all Uberdrivers and not performing up to the high-est standardsTTTT We believe that theremoval of underperforming drivers willlead to more opportunities for our bestdrivers.’’); Docket No. 238–2 (spreadsheetlisting terminated driver accounts and rea-sons for termination); Docket No. 238–3(email from ‘‘Uber SF Community Manag-er’’ instructing fellow Uber employer to‘‘[g]et rid of this guy. We need to makesome serious cuts of guys below 4.5’’);Docket No. 238–5 (email terminating un-derperforming Uber driver because busi-ness was ‘‘slower than normal and we havetoo many drivers TTT [so] we have to lookfor accounts to deactivate’’).

Although the Court’s conclusion basedon the record facts can likely stand onlogic and common sense alone, the caselaw makes abundantly clear that the driv-ers are Uber’s presumptive employees. InYellow Cab Cooperative, a cab companyargued, like Uber here, that its driverswere not its employees because they didnot provide any service to the cab compa-ny. Yellow Cab Coop., 226 Cal.App.3d at1292–1294, 277 Cal.Rptr. 434. The compa-ny’s principal argument, like Uber’s, wasthat it was only in the business of collect-ing fees from its drivers—specifically a flat$56 fee-per-shift for the use of a cab andprovision of ‘‘leads’’ through its radio dis-patch service. Notably, (and unlike Uber)Yellow did not share in any of the actualfares a driver received. Id. at 1291, 277Cal.Rptr. 434. Thus, if a Yellow drivernever provided any rides during a shift oractually used any of Yellow’s ‘‘leads,’’ Yel-low would receive the same $56 lease pay-ment regardless. Id. Based on these facts,the Court of Appeal flatly rejected Yel-low’s argument that the drivers did notprovide it a service, finding that Yellow’sactual ‘‘enterprise consists of operating afleet of cabs for public carriage. The driv-ers, as active instruments of that enter-prise, provide an indispensable ‘service’ toYellow; the enterprise could no more sur-vive without them than it could withoutworking cabs.’’ 13 Id.

12. See also Docket No. 238–1 (email to Uberdriver permanently terminating her accountfor allowing others to drive under her username, a behavior Uber described as ‘‘not anacceptable practice, as all of our drivers mustgo through the application process for safetyreasons’’).

13. At oral argument, counsel for Uber askedthe Court to consider a number of analogiesand hypotheticals he claimed demonstratethat Uber receives no service from its drivers.For example, Uber’s counsel likened Uber toa recruiter that serves as an intermediarybetween potential job seekers and potentialemployers. Oral Arg. Tr. at 44:19–47:8. Ac-

cording to Uber, such a recruiter does notreceive a service from either the candidates orthe employers, despite the fact that the re-cruiter only gets paid if she successfullyplaces a candidate. This analogy is inapt.Uber not only unilaterally qualifies and se-lects its drivers, it maintains an ongoing rela-tionship and exercises supervision over theirperformance. Uber’s success depends uponthe quality of its drivers’ ongoing perform-ance. In contrast, recruiters engage in a one-time transaction and do not supervise theclients it places; nor does the recruiter’s in-come depend on the ongoing performance ofthose clients.


The reasoning of Yellow Cab Coopera-tive applies even more forcefully here.Unlike Yellow Cab, which received a flatfee and did not share in its drivers’ fares,Uber only receives its fees if a driversuccessfully transports an Uber ‘‘lead’’ tosome destination. Moreover, the preciseamount of this fee is set by Uber, withoutnegotiation or input from the drivers. Un-der such circumstances, it strains credulityto argue that Uber is not a ‘‘transportationcompany’’ or otherwise is not in the trans-portation business; it strains credulityeven further to argue that Uber drivers donot provide Uber a valuable service. Likethe cab drivers in Yellow Cab Cooperative,Uber’s drivers provide an ‘‘indispensableservice’’ to Uber, and the firm ‘‘could nomore survive without them’’ than it couldwithout a working smartphone app. Or,put more colloquially, Uber could not be‘‘Everyone’s Private Driver’’ without thedrivers.

Uber cites two cases in support of itscontention that it receives no services fromits drivers, but neither case is on-point.14

In Kubinec v. Top Cab Dispatch, Inc., aMassachusetts trial judge concluded (in anunpublished order applying Massachusettslaw) that a taxi driver was not the employ-ee of his radio dispatch service, Top Cab.2014 WL 3817016, at *9 (Super.Ct.Mass.June 25, 2014). Importantly, the courtstressed that the $25 weekly fee Top Cabreceived from Kubinec was the same ‘‘re-gardless of whether Kubinec had his cabon the road twenty-four hours a day TTT orleft it parked in his driveway.’’ Id. UnlikeUber, Top Cab received ‘‘no income’’ from

any dispatches it provided, its memberswere not required to accept any dispatchassigned, and the dispatches accepted con-stituted only ‘‘9.95% of all fares driven byTop Cab members in 2010.’’ Id. at *10–11.Top Cab ‘‘received only the same [$25]weekly payment from its members regard-less of whether the dispatches were ac-cepted or passengers simply hailed mem-ber cabs from the street.’’ Id.

Without belaboring the multitude of dif-ferences between this case and Kubinec,the Court notes that Uber does not receivea flat fee from its drivers in exchange foran unlimited number of ‘‘leads’’ or dis-patches. Rather, Uber receives a percent-age of each and every fare its drivers laborto earn—a fact that, as indicated above,makes it clear that Uber receives a (verylucrative) service from its drivers and de-pends on its drivers’ performance of ser-vices for its revenues. Kubinec is thuscompletely distinguishable from the factsin this case.

Uber’s second case, Callahan v. City ofChicago, 78 F.Supp.3d 791, 2015 WL394021 (N.D.Ill.2015), is equally inappositeto the issues here. In Callahan, a Chicagotaxicab driver sued the City of Chicagoarguing that the City was her employerunder the Fair Labor Standards Act. Id.at 793, 2015 WL 394021, at *1. Accordingto the district court, the ‘‘critical question’’in determining the viability of the driver’sclaims was ‘‘whether the ‘business’ towhich Callahan renders service is, in fact,the City’s business.’’ Callahan, 78F.Supp.3d at 801, 2015 WL 394021, at *8.

14. Uber also cites to a decision rendered by aCalifornia Labor Commission Hearing Officerfinding that an Uber driver was not an em-ployee of Uber because Uber’s ‘‘business wasengaged in technology and not in the trans-portation industry,’’ and thus the ‘‘servicesPlaintiff provided were not part of the busi-ness operated by the Defendant.’’ Docket No.213–7 at 5. Uber cites no case law suggesting

this Court owes the Hearing Officer’s conclu-sion any deference, and his conclusion ap-pears to warrant none. On the merits, thedecision (which contains only one paragraphof analysis) is plainly wrong. One cannotnecessarily blame the Hearing Officer forreaching the wrong conclusion, however:while Uber was represented at the hearing,Plaintiff appeared pro se. Id.


Callahan, the court noted, ‘‘is a taxicabdriver; the service she provides is there-fore the transportation of passengers bytaxicabTTTT’’ Id. But while recognizingthat the City ‘‘controls to quite a signifi-cant extent the operation of taxicabs inChicago’’ by way of extensive regulation,the court (unsurprisingly) concluded that‘‘controlling or regulating how taxicabs areoperated is not the same as providing, orundertaking to provide, transportation bytaxicab. The City does not perform thelatter role.’’ Id. While this Court will notexhaustively list the ways a private corpo-ration like Uber differs from a municipali-ty like the City of Chicago, the Court notesone obvious difference—Uber derives prof-its from providing transportation services,whereas the City does not.15 Moreover,among other facts, Uber markets itself as‘‘Everyone’s Private Driver;’’ Chicago doesnot. As the district judge in Callahancorrectly noted, ‘‘the collection of taxes,fees, or revenue by a government entitydoes not make the regulated industry thebusiness of that government.’’ Id. at 803,2015 WL 394021, at *9. Uber’s collectionof fees from its drivers, however, and itsdeep involvement in prescribing the quali-fications of its drivers and the quality oftheir service, as well as its representationsto the public that it is a provider of trans-portation services (‘‘Everyone’s PrivateDriver’’), does indicate that transportationis its business.

This Court holds, as a matter of law,that Uber’s drivers render service to Uber,

and thus are Uber’s presumptive employ-ees.16

C. Whether a Hiree is an Employee orIndependent Contractor is a MixedQuestion of Law and Fact Generallyto be Decided by the Jury

Because the Court has determined thatthe Plaintiffs are Uber’s presumptive em-ployees, the burden now shifts to Uber todisprove an employment relationship. Yel-low Cab Coop., 226 Cal.App.3d at 1294, 277Cal.Rptr. 434. As noted above, when de-termining under California law whether aputative employer can rebut a hiree’s pri-ma facie case of employment, the Courtapplies the multi-factor test laid out in theSupreme Court’s decision in Borello. Bo-rello, 48 Cal.3d at 350, 256 Cal.Rptr. 543,769 P.2d 399.

[4] Both parties suggest that the em-ployee/independent contractor question isone of law for ultimate resolution by theCourt. See, e.g., Oral Arg. Tr. at 7:24–9:8.Both parties, however, are mistaken. Ac-cording to the California Supreme Court,the ‘‘determination of employee or inde-pendent contractor status is one of fact ifdependent upon resolution of disputed evi-dence or inferences.’’ Id. at 349, 256 Cal.Rptr. 543, 769 P.2d 399. This rule isconsistent with long standing CaliforniaSupreme Court precedent. See Burling-ham v. Gray, 22 Cal.2d 87, 100–101, 137P.2d 9 (1943) (holding that the question ofemployee/independent contractor status

15. Uber ironically argues in one breath thatUber is sufficiently analogous to a govern-ment regulator to come under the holding ofCallahan, while in another breath argues thatUber exercises so little control over its driversthat no reasonable jury could find that theyare Uber’s employees.

16. The Court holds below that the ultimatequestion of whether a hiree should be classi-fied as an employee or independent contrac-tor is one that must typically be decided by a

jury. The Court need not definitively decidewhether the threshold question of whether ahiree performs a service for her putative em-ployer is similarly a question typically re-served for jury resolution (as opposed to reso-lution by the Court as a legal matter) becausein this case the Court holds that no reason-able juror could conclude that Uber does notreceive service from the Plaintiffs. See Alex-ander, 765 F.3d at 988 (summary adjudicationis appropriate where the jury could returnonly one possible verdict).


‘‘should have gone to the jury’’). Only ifthe evidence is undisputed, and there is‘‘but one inference [that] can reasonably bedrawn from the evidence,’’ Burlingham, 22Cal.2d at 100, 137 P.2d 9 (citation omitted),does the ‘‘question become[ ] one of law.’’Borello, 48 Cal.3d at 349, 256 Cal.Rptr.543, 769 P.2d 399. This is no differentfrom the general rule on summary judg-ment: when no reasonable jury could holdin favor of the non-moving party (becausethe evidence and evidentiary inferencesare not disputed), courts must grant sum-mary judgment.

While Borello and other California deci-sions sometimes refer to the question ofemployee/independent contractor status asone of fact, other California decisions rec-ognize that the ultimate determination ismore accurately described as a mixedquestion of law and fact. See Hillen v.Indus. Acc. Comm’n, 199 Cal. 577, 580, 250P. 570 (1926) (holding that determinationof employment relationship under Califor-nia law involves questions ‘‘of mixed lawand fact’’); Mission Ins. Co., 123 Cal.App.3d at 219, 176 Cal.Rptr. 439 (same);Chapman v. Edwards, 133 Cal.App. 72, 79,24 P.2d 211 (Cal.1933) (same); see alsoPullman–Standard v. Swint, 456 U.S. 273,289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66(1982) (defining a mixed question of lawand fact as one ‘‘in which the historicalfacts are admitted or established, the ruleof law is undisputed, and the issue iswhether the facts satisfy the statutorystandard, or to put it another way, wheth-er the rule of law as applied to the estab-lished facts is or is not violated’’). Unlessthe facts are so clear that only one infer-ence may reasonably be drawn, mixedquestions of law and fact are for the jury.See Hana Fin., Inc. v. Hana Bank, –––

U.S. ––––, 135 S.Ct. 907, 911–912, 190L.Ed.2d 800 (2015) (question of ‘‘tacking’’in trademark cases is typically for juryresolution because it presents a mixedquestion of law and fact); see also S.E.C.v. Phan, 500 F.3d 895, 908–909 (9th Cir.2007) (recognizing that mixed questions oflaw and fact are typically left for the jury);Delange v. Dutra Constr. Co., Inc., 183F.3d 916, 919 (9th Cir.1999) (same); DelMonte Dunes at Monterey, Ltd. v. City ofMonterey, 95 F.3d 1422, 1428–1429 (9thCir.1996) (same). California law govern-ing employee/independent contractor sta-tus appears no different.

Indeed, a number of recent Californiaand Ninth Circuit cases expressly heldthat the precise question of whether one isan employee versus independent contrac-tor is generally a question of fact. Forinstance, in Estrada v. FedEx GroundPackage Sys., Inc., the Court of Appealheld that ‘‘[t]he determination (employeeor independent contractor) is one offactTTTT’’ 154 Cal.App.4th 1, 11, 64 Cal.Rptr.3d 327 (2007). Similarly in Millsapv. Federal Express Corp., the Court ofAppeal noted that ‘‘[w]hether a person isan employee or an independent contractoris ordinarily a question of fact.’’ 227 Cal.App.3d 425, 431, 277 Cal.Rptr. 807 (1991).The panel noted unremarkably that em-ployee/independent contractor status isonly a legal question for the court’s resolu-tion ‘‘if from all the facts only one infer-ence may be drawn.’’ Id.; see also Arzatev. Bridge Terminal Transport, Inc., 192Cal.App.4th 419, 427–428, 121 Cal.Rptr.3d400 (2011) (reversing summary judgmentthat plaintiffs were independent contrac-tors because ‘‘a reasonable trier of fact,considering the totality of the evidence,might reasonably conclude that the plain-tiffs were employees of defendant’’).17

17. See further Brose v. Union–Tribune Publ’gCo., 183 Cal.App.3d 1079, 1082, 228 Cal.Rptr.620 (1986) (‘‘Whether a person is an employ-ee or an independent contractor is ordinarilya question of fact but if from all the facts only

one inference may be drawn it is a question oflaw.’’); Hillen, 199 Cal. at 580, 250 P. 570(‘‘Whether or not the relation of employer andemployee existed in this case, under the oral


And in Narayan, the Ninth Circuit explic-itly held that under its view of Californialaw, ‘‘we cannot readily say that the ulti-mate conclusion as to whether the workersare employees or independent contractorsis one of law. The drawing of inferencesfrom subordinate to ultimate facts is a taskfor the trier of fact—if, under the govern-ing legal rule, the inferences are subject tolegitimate dispute.’’ 616 F.3d at 901 (in-ternal quotation marks and citation omit-ted). The Ninth Circuit, quoting a concur-rence written by Judge Easterbrook in acase involving employee/independent con-tractor status under federal law, notedpointedly that

if we are to have multiple factors, weshould also have a trial. A fact-boundapproach calling for the balancing ofincommensurables, an approach in whichno ascertainable legal rule determines aunique outcome, is one in which the trierof fact plays the principal part. Thatthere is a legal overlay to the factualquestion does not affect the role of thetrier of fact.

Id. (quoting Sec’y of Labor v. Lauritzen,835 F.2d 1529, 1542 (7th Cir.1987) (Easter-brook, J., concurring) (internal modifica-tion omitted).

Because the Ninth Circuit’s holding inNarayan is binding on this Court, its de-termination that employee/independentcontractor status is a mixed question oflaw and fact under California law is dispos-itive.18 Notably, Narayan is consistentwith California state appellate court deci-sions discussed above. It is also consistentwith the United States Supreme Court’s

recent decision in Hana Financial, 135S.Ct. at 911, where the Supreme Courtheld that generally a jury should decideultimate questions that involve the applica-tion of a legal standard to the facts.

In Hana, the question at issue was oneof trademark law, and specifically ‘‘tack-ing,’’ which allows a trademark owner to‘‘make certain modifications to their marksover time without losing [the] priority TTT

position of an older mark.’’ Id. at 909.Tacking is permitted when the original andrevised marks are ‘‘legal equivalents’’ suchthat the two marks ‘‘create the same, con-tinuing commercial impression so that con-sumers consider both as the same mark.’’Id. at 910 (internal quotation marks andcitations omitted). The Supreme Courtheld that a jury should decide the ultimatequestion whether two marks are ‘‘legalequivalents’’ sufficient to warrant tacking.Id.

Justice Sotomayor began by explainingthat ‘‘the application-of-legal-standard-to-fact sort of question TTT commonly called a‘mixed question of law and fact,’ has typi-cally been resolved by juries.’’ Hana Fi-nancial, 135 S.Ct. 911 (quoting UnitedStates v. Gaudin, 515 U.S. 506, 512, 115S.Ct. 2310, 132 L.Ed.2d 444 (1995)) (inter-nal quotation marks omitted). As theCourt has previously held, the ‘‘jury’s con-stitutional responsibility is not merely todetermine the facts, but to apply the law tothose facts and draw the ultimate conclu-sion.’’ Gaudin, 515 U.S. at 514, 115 S.Ct.2310. ‘‘[A]n issue does not lose its factualcharacter merely because its resolution is

contract entered into, is a question of mixedlaw and fact, to be proved like any otherquestion.’’); Chapman, 133 Cal.App. at 79, 24P.2d 211 (same).

18. The Court further notes that the holdingsof the California Supreme Court in Burling-ham and Borello are also clear and consistentwith the Ninth Circuit’s determination in Na-

rayan—employee/independent contractor sta-tus may only be resolved by the court wherethe evidence and all inferences from the evi-dence (including the ultimate inference as tothe nature of the relationship) are undisputed.Hence, the ultimate determination of employ-ment status should typically be made by ju-ries, not judges.


dispositive of the ultimate TTT question.’’Hana Financial, 135 S.Ct. 911 (quotingMiller v. Fenton, 474 U.S. 104, 113, 106S.Ct. 445, 88 L.Ed.2d 405 (1985)). TheCourt further explained that to the extentthere is a concern that a jury ‘‘may im-properly apply the relevant legal standard,the solution is to craft careful jury instruc-tions that make that standard clear.’’ Id.at 912.

The Court further explained that mixedquestions of law and fact should be re-solved by juries irrespective of whetherthis may permit juries to ‘‘create new lawthat will guide future TTT disputes—atask [arguably] reserved for judges.’’ Id.The Court observed that ‘‘[i]t is not at allclear TTT why a tacking determination ina particular case will ‘create new law’ anymore than will a jury verdict in a tortcase, a contract dispute, or a criminal pro-ceeding.’’ Id. The Court also rejected theargument that allowing juries to make ul-timate legal determinations, such aswhether two marks are legally equivalent,would upset the ‘‘predictability requiredfor a functioning trademark system.’’ Id.at 912. The unanimous Court explainedthat ‘‘the same could be said about thetort, contract, and criminal justice sys-tems: In all of these areas, juries answeroften-dispositive factual questions or makedispositive applications of legal standardsto facts. The fact that another jury,hearing the same case, might reach a dif-ferent conclusion may make the system‘unpredictable,’ but it has never stoppedus from employing juries in these analo-gous contexts.’’ Id.

Finally, the Court considered the argu-ment that tacking disputes should be re-solved by judges because judges havetypically resolved such questions ‘‘as ahistorical matter.’’ Again, the Court re-jected the argument, explaining that ‘‘pe-titioner relies on cases in which judgeshave resolved tacking disputes in bench

trials, at summary judgment, or the like.’’Id. (citations omitted). ‘‘As we have not-ed, it is undisputed that judges may re-solve tacking disputes in those contexts.But recognizing as much does not gainsayour conclusion that, when a jury is to beempaneled and when the facts warrantneither summary judgment nor judgmentas a matter of law, tacking is a questionfor the jury.’’ Id.

Put simply, the reasoning in Hana thatjuries should typically decide mixed ques-tions of law and fact supports the greatweight of California authority (includingthe Ninth Circuit’s decision in Narayan )that establishes that a hiree’s status aseither an employee or independent con-tractor should typically be determined by ajury, and not the judge.

D. Uber is Not Entitled to SummaryJudgment Because Material FactsRemain in Dispute and a ReasonableInference of an Employment Rela-tionship May Be Drawn

Because the ultimate determination ofthe Plaintiffs’ employment status presentsa mixed question of law and fact, Ubermay only obtain summary judgment if allfacts and evidentiary inferences materialto the employee/independent contractordetermination are undisputed, and a rea-sonable jury viewing those undisputedfacts and inferences could reach but oneconclusion—that Uber’s drivers are inde-pendent contractors as a matter of law.See Alexander, 765 F.3d at 988. TheCourt explained at the hearing on thismatter that this is a ‘‘pretty tough stan-dard to meet,’’ Oral Arg. Tr. at 6:15, and itis one that Uber has failed to meet here.

[5, 6] As noted above, the ‘‘principaltest of an employment relationship iswhether the person to whom service isrendered has the right to control the man-ner and means of accomplishing the result


desired.’’ Ayala, 59 Cal.4th at 531, 173Cal.Rptr.3d 332, 327 P.3d 165 (quoting Bo-rello, 48 Cal.3d at 350, 256 Cal.Rptr. 543,769 P.2d 399). ‘‘Perhaps the strongestevidence of the right to control’’ is whetherUber can fire its transportation providersat will. Id. This critical fact appears to bein dispute. Uber claims that it is onlypermitted to terminate drivers ‘‘with noticeor upon the other party’s material breach’’of the governing contracts. Mot. at 23.Plaintiffs, however, point out that the actu-al contracts seem to allow Uber to fire itsdrivers for any reason and at any time.See, e.g., Addendum at 4 (‘‘Uber will havethe right, at all times and at Uber’s solediscretion, to reclaim, prohibit, suspend,limit or otherwise restrict the Transporta-tion Company and/or the Driver from ac-cessing or using the Driver AppTTTT’’).To the extent this important factor in theemployee/independent contractor test is indispute, summary judgment is unwarrant-ed.19

[7] Uber further claims that the rightto control element is not met because driv-ers can work as much or as little as theylike, as long as they give at least one rideevery 180 days (if on the uberX platform)or every 30 days (if on the UberBlackplatform). Mot. at 20. According toUber, drivers never have to accept any‘‘leads’’ generated by Uber (i.e., they canturn down as many rides as they wantwithout penalty), and they can completelycontrol how to give any rides they doaccept. These contentions are very muchin dispute. For instance, while Uber ar-gues that drivers never actually have toaccept ride requests when logged in to theUber application, Plaintiffs provided an

Uber Driver Handbook that expresslystates: ‘‘We expect on-duty drivers to ac-cept all [ride] requests.’’ Handbook at 1.The Handbook goes on to state that ‘‘[w]econsider a dispatch that is not accepted tobe a rejection,’’ and we ‘‘will follow-up withall drivers that are rejecting trips.’’ Id.The Handbook further notes that Uberconsiders ‘‘[r]ejecting too many trips’’ tobe a performance issue that could lead topossible termination from the Uber plat-form. Id. at 8; see also Docket No. 223–57 (email from Uber to driver stating thatthe driver’s ‘‘dispatch acceptance rate [of60%] is too low TTT Please work towards adispatch acceptance rate of 80%. If youare unable to significantly improve yourdispatch acceptance rate, Uber may sus-pend your account’’).

It is also hotly disputed whether Uberhas the right to significantly control the‘‘manner and means’’ of Plaintiffs’ trans-portation services. See Alexander, 765F.3d at 988. Plaintiffs cite numerous doc-uments, written in the language of com-mand, that instruct drivers to, amongstother things: ‘‘make sure you are dressedprofessionally;’’ send the client a text mes-sage when 1–2 minutes from the pickuplocation (‘‘This is VERY IMPORTANT’’);‘‘make sure the radio is off or on soft jazzor NPR;’’ and ‘‘make sure to open the doorfor your client.’’ Onboarding Script at 3–6. As Uber emphasizes, ‘‘it is the smalldetails that make for an excellent trip,’’and Plaintiffs have presented evidence(when viewed in the light most favorable tothem) that Uber seeks to control thesedetails right down to whether drivers‘‘have an umbrella in [their] car for clients

19. The issue of Uber’s right to terminate itsdrivers may not truly be in dispute. Thecontracts say what they say, and this Courtmay interpret unambiguous contractual termsas a matter of law. See Alexander, 765 F.3dat 988 (granting summary judgment in favorof FedEx drivers based in large part on

Court’s legal interpretation of the relevantcontracts). Assuming the Court reads thecontracts to mean what they say—that Plain-tiffs are terminable at will—then this factorwould tip in favor of finding Plaintiffs areUber’s employees.


to be dry until they get in your car or afterthey get out.’’ Id. at 6, 9. Plaintiffs notethat drivers are even instructed on such

simple tasks as how to pick up a customerwith their car:

Docket No. 223–20.

Uber responds that it merely providesits drivers with ‘‘suggestions,’’ but does notactually require its drivers to dress profes-sionally or listen to soft jazz or NPR. See,e.g., Reply Br. at 6. But the documentsdiscussed above (and others in the record)are not obviously written as mere sugges-tions, and Uber’s arguments to the con-trary cannot be assumed as true on Uber’smotion for summary judgment where allreasonable inferences from the recordmust be drawn in favor of Plaintiffs. See,e.g., Cameron v. Craig, 713 F.3d 1012, 1018(9th Cir.2013) (reiterating that the courtmust view summary judgment evidence inthe light most favorable to the nonmovingparty). Indeed, there is evidence of driv-ers being admonished (or terminated) byUber for failing to comply with its ‘‘sug-gestions.’’ See, e.g., Docket No. 223–50

(informing driver that ‘‘a passenger let usknow that your attitude wasn’t up toUber’s professional standards,’’ and notingthat ‘‘[i]f we continue to receive negativefeedback TTT your account will be re-viewed and may be deactivated’’); DocketNo. 223–54 (terminating driver whose‘‘overall driver rating has fallen below theminimum threshold we allow’’); DocketNo. 223–58 (informing driver that a ‘‘pas-senger let us know that they felt you didnot take the most efficient/direct route ona trip’’ and noting that the driver’s accountmay be deactivated).

Nor can this Court at this juncture cred-it the argument that Uber has no ability toensure that any driver actually complieswith its ‘‘suggestions’’ or otherwise activelymonitor its drivers’ performance. In fact,there is evidence suggesting that Ubermonitors its drivers to ensure compliance


with Uber’s many quality control ‘‘sugges-tions.’’ Most notably, Uber requests pas-sengers to give drivers a star rating, on ascale of 1–5, after each completed tripbased on the driver’s performance. Uberalso provides a space for riders to providewritten comments or feedback on drivers.Uber documents make it clear that Uberuses these ratings and feedback to monitordrivers and to discipline or terminatethem. As the Uber Driver Handbookclearly states, ‘‘Uber follows up on allclient reports of dissatisfaction’’ and ‘‘mon-itor[s] your star rating as well as anycomplaints made by clients.’’ Handbook at7. Uber notes that it tries to ‘‘follow up onevery quality issue.’’ Id. (emphasis add-ed); see also Addendum at 9 (‘‘Transporta-tion Company agrees that its Drivers willmaintain high standards of professionalismand service, including but not limited toprofessional attire and maintain an aver-age Customer score set by Uber based onfeedback from users of its Software.’’).Furthermore, the relevant contracts withPlaintiffs provide that Uber may terminateany driver whose star rating ‘‘falls belowthe applicable minimum star-rating,’’ Ad-dendum at 9, and a significant amount ofevidence in the record indicates that Uberdoes, in fact, terminate drivers whose starratings far below a certain threshold de-termined by Uber. See, e.g., Docket No.223–54; Docket No. 238–2; Docket No.238–5. While it is apparent that drivers’adherence to every detail of Uber’s di-rections (or ‘‘suggestions’’) may not be spe-cifically discernible through rider ratings(since specific questions are not asked inthe feedback form), the facts viewed inPlaintiffs’ favor suggest monitoringthrough rider ratings may be a generallyeffective enforcement mechanism.

In arguing there is insufficient monitor-ing to warrant an inference of an employ-ment relationship, Uber asks the Court tocontrast the level of monitoring of Plain-tiffs’ job performance here to that per-

formed by management in Alexander. InAlexander, the Ninth Circuit found thefact that drivers were accompanied onride-alongs by management representa-tives up to four times each year importantto its determination that drivers were Fe-dEx’s employees as a matter of law. Alex-ander, 765 F.3d at 985. During theseride-alongs, the drivers were scrutinizedon minute details of their performance,such as ‘‘whether a driver uses a dolly orcart to move packages’’ or ‘‘places his orher keys on the pinky finger of his or hernon-writing hand after locking the deliveryvehicle.’’ Id. (internal quotation marksand modifications omitted).

Uber claims that the level of monitoringin Alexander is far more extensive thanwhat its transportation providers are sub-jected to. Indeed, Uber notes that itsadmitted employees or members of man-agement never conduct any performanceinspections or ride-alongs with its drivers.This is an argument for the jury. At thispoint it suffices to note that it is not imme-diately clear that Uber drivers are subjectoverall to less monitoring than the employ-ees in Alexander. Indeed, viewing theevidence in the light most favorable to thePlaintiffs, it appears they are monitoredmore pervasively than the drivers in Alex-ander. The Alexander drivers were moni-tored just four times a year, and knewexactly when they were being inspected.Uber drivers, by contrast, are monitoredby Uber customers (for Uber’s benefit, asUber uses the customer rankings to makedecisions regarding which drivers to fire)during each and every ride they give, andUber’s application data can similarly beused to constantly monitor certain aspectsof a driver’s behavior. This level of moni-toring, where drivers are potentially ob-servable at all times, arguably gives Ubera tremendous amount of control over the‘‘manner and means’’ of its drivers’ per-formance. Cf. Michel Foucalt, Disciplineand Punish: The Birth of the Prison 201


(Alan Sheridan ed., 1979) (a ‘‘state of con-scious and permanent visibility [ ] assuresthe automatic functioning of power’’). Ifthe quarterly monitoring in Alexander wassufficiently pervasive to weigh in favor offinding FedEx’s drivers were employees asa matter of law, a reasonable jury couldconclude that Uber’s more persistent per-formance monitoring similarly weighs infavor of finding that Uber drivers areUber’s employees under California law.

Finally, Uber makes much of the factthat Uber has no control over its drivers’hours or whether its drivers even ‘‘report’’for work more than once in the relevantperiod. This is a significant point, and oneon which this Court previously commentedin noting that such evidence might weighheavily in favor of a finding of independentcontractor status. However, as notedabove, freedom to choose one’s days andhours of work (which concededly did nottruly exist for FedEx drivers in Alexan-der 20) does not in itself preclude a findingof an employment relationship. See, e.g.,Air Couriers Int’l, 150 Cal.App.4th at 926,59 Cal.Rptr.3d 37 (holding hirees were em-ployees as a matter of law despite the factthat ‘‘drivers determined their own sched-ules’’); JKH Enterprises Inc., 142 Cal.App.4th at 1051, 48 Cal.Rptr.3d 563 (hold-ing certain hirees were employees as amatter of law despite the fact that theywere ‘‘not required to work either at all oron any particular schedule’’). The morerelevant inquiry is how much control Uberhas over its drivers while they are on dutyfor Uber. The fact that some drivers areonly on-duty irregularly says little aboutthe level of control Uber can exercise over

them when they do report to work.21 In-deed, and as noted above, the Court ofAppeal has (at least implicitly) recognizedthis precise distinction in earlier caseswhere hirees who were ‘‘not required towork either at all or on any particularschedule’’ were nonetheless held to be em-ployees as a matter of law based on theamount of control the employer could exer-cise when those employees decided to turnup for work. JKH Enterprises Inc., 142Cal.App.4th at 1051, 48 Cal.Rptr.3d 563;see also Air Couriers Int’l, 150 Cal.App.4th at 937, 59 Cal.Rptr.3d 37 (identify-ing ‘‘no inconsistency between [finding of]employee status and the driver’s discretionon when to take breaks or vacation’’).

Because the Court concludes that anumber of material facts relevant to the‘‘primary’’ Borello analysis are in dispute,thus precluding summary judgment, theCourt need not examine in detail each ofBorello ’s numerous secondary factors.The Court nonetheless notes that a reason-able jury could find that numerous second-ary factors cut in favor of finding an em-ployment relationship. For instance, a jurycould conclude that driving a car (as op-posed to, e.g., a truck or bus) does notrequire a special skill, particularly if nospecial driver’s license is required. Com-pare JKH Enterprises, 142 Cal.App.4th at1064, 48 Cal.Rptr.3d 563 (holding that ‘‘thefunctions performed by the drivers, pickupand delivery of packages and driving inbetween, did not require a high degree ofskill’’) with State Comp. Ins. Fund v.Brown, 32 Cal.App.4th 188, 202–203, 38Cal.Rptr.2d 98 (1995) (noting that ‘‘truckdriving—while perhaps not a skilled

20. See Alexander, 765 F.3d at 985 (in practicedrivers had to report to the FedEx Center atthe beginning of the day and at the end of theshift.).

21. Thus, for instance, a day laborer or anyother temporary or casual worker may choosewhen to make him or herself available for

work: but if once hired, the means and man-ner of performance is substantially controlledby the hirer, an employment relationship maybe found. See, e.g., Borello, 48 Cal.3d at 345–46, 256 Cal.Rptr. 543, 769 P.2d 399 (holdingthat temporary ‘‘sharefarmers’’ were employ-ees entitled to workers’ compensation cover-age).


craft—requires abilities beyond those pos-sessed by a general laborer’’). Moreover,such driving is typically done in the fieldwithout close supervision. A jury couldalso find, for the reasons previously dis-cussed, that drivers perform a regular andintegral part of Uber’s business.

To be sure, a number of secondary fac-tors (e.g., drivers use their own vehicle,may employ other drivers to drive on theirbehalf,22 and signed an agreement statingno employment relationship is created), dosupport an independent contractor classifi-cation. But even as to these factors, theirsignificance is ambiguous. For instance,the fact that the drivers provide their ownvehicles and thus invest significant capitalis a substantial factor favoring an indepen-dent contractor relationship as Uber prop-erly contends, but this fact alone is notdispositive. In Alexander, an employmentrelationship was found even though driversprovided their own vehicles. The same istrue in Air Couriers International andJKH Enterprises. Moreover, this Borellofactor is qualified by the fact that Ubersupplies the critical tool of the business—smart phone with the Uber application.See Service Agreement at 7 (Uber pro-vides drivers with the smartphone to runthe Uber app); Docket No. 223–54 (emailterminating driver and including ‘‘steps’’ to‘‘return your Uber-issued phone’’). In theaggregate, the secondary factors do notclearly cut in one direction.

As noted above, rarely does any onefactor dictate the determination of whethera relationship is one of employment orindependent contract. Here, numerousfactors point in opposing directions. As tomany, there are disputed facts, includingthose pertaining to Uber’s level of controlover the ‘‘manner and means’’ of Plaintiffs’performance. Viewing the current record

in the light most favorable to Plaintiffs, theCourt cannot conclude as a matter of lawthat Plaintiffs are Uber’s independent con-tractors rather than their employees.Consequently, Uber’s summary judgmentmotion must be denied.

III. CONCLUSIONThe application of the traditional test of

employment—a test which evolved underan economic model very different from thenew ‘‘sharing economy’’—to Uber’s busi-ness model creates significant challenges.Arguably, many of the factors in that testappear outmoded in this context. Otherfactors, which might arguably be reflectiveof the current economic realities (such asthe proportion of revenues generated andshared by the respective parties, their rel-ative bargaining power, and the range ofalternatives available to each), are not ex-pressly encompassed by the Borello test.It may be that the legislature or appellatecourts may eventually refine or revise thattest in the context of the new economy. Itis conceivable that the legislature wouldenact rules particular to the new so-called‘‘sharing economy.’’ Until then, this Courtis tasked with applying the traditional mul-tifactor test of Borello and its progeny tothe facts at hand. For the reasons statedabove, apart from the preliminary findingthat Uber drivers are presumptive employ-ees, the Borello test does not yield anunambiguous result. The matter cannoton this record be decided as a matter oflaw. Uber’s motion for summary judg-ment is therefore denied.

This order disposes of Docket No. 211.

IT IS SO ORDERED.

,

22. Drivers are allowed to hire ‘‘subcontrac-tors’’ or ‘‘agents’’ to actually drive Uber pas-sengers for their benefit, so long as those

subcontractors or agents meet the same quali-ty standards Uber imposes on the actual con-tracting party. See Service Agreement at 3, 6.

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