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Transportation Businesses The Almighty Buck The Courts

Brazil Judge Rules Uber Drivers Are Employees, Deserve Benefits (reuters.com) 131

An anonymous reader shares a Reuters report: A Brazilian judge ruled that a driver using the Uber ride-hailing app is an employee of the San Francisco-based company and is entitled to workers' benefits, adding to the global debate over labor rights for drivers on the platform. Uber said on Tuesday it would appeal the decision by Judge Marcio Toledo Goncalves, who issued the ruling late Monday in a labor court in Minas Gerais state. Goncalves ordered Uber to pay one driver around 30,000 reais ($10,000) in compensation for overtime, night shifts, holidays and expenses such as gasoline, water and candy for passengers. The consequences for Uber, if the ruling is upheld, could be far greater if more drivers follow suit and if state and federal regulators and tax agencies start treating it, as the judge suggested, as a transportation company rather than a tech firm.
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Brazil Judge Rules Uber Drivers Are Employees, Deserve Benefits

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  • by Anonymous Coward on Wednesday February 15, 2017 @04:11PM (#53875603)

    More likely they will pull out of any markets that dictate this. They can't remain profitable doing that.

    • by golodh ( 893453 ) on Wednesday February 15, 2017 @04:19PM (#53875651)
      Good. This commonsense view should be applied to all markets Uber is in. If they can't compete on a level playing field they should indeed pull out and stop their unfair competition.
      • by rhazz ( 2853871 )
        Article doesn't say why he made this decision - i.e. what is it about the setup that makes them employees and not contractors? Depending on that, maybe there are steps they could take to limit driver access to the app that would push them back to contractor status.
        • Re: (Score:3, Informative)

          by Anonymous Coward

          Brazilian labor law is *designed* to catch all attempts at doing what Uber does, really.

          To Brazilian law, if you do *anything* paid that looks like being employed more than X hours per week for a long enough period for the same company, you *are* employed, and they are in a very very bad position for trying to dodge labor law. Also, in labor issues, the employer is *presumed guilty* and *has to prove its innocence*. It is absolutely the *only* instance in the entire Brazilian law where this happens (in al

          • I'm Brazilian too, but I don't know enough about labor law so as to figure this out, and I'm curious.

            Suppose Uber changed it's system so that they charged drivers directly for use of the driver version of their app instead of charging drivers a percentage of each run. As in, I want to drive for Uber, I enter the App Store or the Play Store, and I find I can subscribe to it for, let's say, $1.000 BRL (about $300 USD) per month, with the first month free. In this scenario, Uber is literally selling an app and

            • Just changing for the right to get the work list vs taking an fee from each job does not change stuff. And Changing workers for an tool needed to do the job?

              • And what about setting things up so that drivers aren't charged a penny, money goes directly from the user to the driver, and the user is charged a percentage on top of what he paid to the driver?

      • by Hadlock ( 143607 ) on Wednesday February 15, 2017 @05:00PM (#53875907) Homepage Journal

        I don't think it really matters, it costs almost nothing to defend these cases for Uber. They're just trying to defer spinning up a big HR division between now and in five years when Uber replaces most of their human drivers with driverless cars. People keep treating Uber as if they're going to be this massive, massive employer -- they won't. Ideally in 10 years most everything will live in the cloud run by a team of 300 engineers, with local service centers to swap out batteries and electric drive units for the cars. Human drivers will only work in areas that don't have enough ride share demand to deserve a dedicated service center.
         
        Worrying about driver's benefits is a very short sighted goal and really is a waste of everyone's time.

        • by angel'o'sphere ( 80593 ) on Wednesday February 15, 2017 @05:35PM (#53876161) Journal

          Who cares?
          Even in ten years I will still boycott uber.

        • and we need to fight now before more jobs that can't be replaced with robots become fake on call jobs where people are waiting for work but not being paid for that wait time or for the next work set.

          Or an call center where you only get paid for talk time and not waiting for the call time.

          instacart and others had the wait at the store and schedule shifts but workers only got paid if an order came in.

        • by mjwx ( 966435 )

          I don't think it really matters, it costs almost nothing to defend these cases for Uber. They're just trying to defer spinning up a big HR division between now and in five years when Uber replaces most of their human drivers with driverless cars.

          Awaken from your dreamy state.

          Uber is just trying to undercut existing competition by ignoring the rules other players are forced to abide by... And complaining bitterly when said rules are applied to them.

          Even though they're getting away with this for the most part, they're still losing money hand over fist. Uber will go out of business within a few years. Seceding from the Brazilian market will be the beginning of the end (Easy Taxi is the go-to app for taxi hailing in South America).

      • Ignorant (Score:1, Troll)

        by KalvinB ( 205500 )

        The whole point is that taxis operate at excessive costs and poor quality precisely because of a playing field that is stupid.

        Uber is playing on an entirely different field.

        And if you don't want to play on it, you can go be a taxi driver.

        It's completely ignorant to demand companies play on the "same playing field" when the whole point is to escape the existing one.

        You're not an employee of Uber. You're a contractor. You set your own hours. If you don't like the terms, find another job.

        If you like the ter

        • You know people are becoming Uber drivers just so they can get women alone in their cars right? Surely there is something Uber could do to increase the barrier of entry for a driver and vet them a little bit. All they have to do is make it as hard or harder to become the operator of any other kind of private vehicle.
          • Here in Brazil the vast majority of Uber drivers are so because the recession the country is going through destroyed the companies they worked for and they've been unemployed for several months without perspective of becoming employees again for a long time. It has literally saved many people from foreclosure and from being ejected given there's no barrier to entry: just take your car and go earn money.

            If this rule sticks, guess who will be back in the queue for non-existing jobs?

            • Yeah well your problem is with the government failing to stimulate the economy then, not your government failing to allow Uber. Seems to be a common case in many countries.
      • The playing field is fair. There is nothing stopping an Uber competitor (like lyft) from creating their own app and contracting their own drivers.

        I think what you really mean is you want Uber to compete in a highly regulated market like taxis. But that highly regulated market is the very reason why Uber is so popular, cab companies have become a bunch of rent seekers. They artificially constrain the supply and jack up the price. If the taxi market wasn't so broken Uber would have never gotten off the groun

      • How does it make any sense that Uber should pay a driver overtime pay when the driver is fully in charge of how many hours they work per day or week?

        That makes no sense at all.

        • Ditto for "night shift pay" or anything like that.

          Drivers may not be "independent contractors" in the same way that a programmer might be (for example, depending where you live, you might only have one ride share service you can work for), but they absolutely are not regular employees.

          They have 100% control over schedules, and a very low bar to getting hired (for many places, it seems like you just download an app, fill out some info, get a rudimentary vehicle inspection and an automated background chec

          • It's not being prided / getting miles for on call wait time / drive to call time / drive back to base after long ride time. Paper work / other admin time.

            Also maybe big time drivers can bill for the oil change time / car cleaning time / etc.

        • by AmiMoJo ( 196126 )

          Some countries have limits on working time, to stop employers abusing workers by paying them extremely low wages and then offering overtime to make it up. In other words, to stop exactly what Uber is doing.

    • by Anonymous Coward

      Absolutely agree with this, in OZ taxi drivers have copped a lot due to high fare costs, but at the same time the gov forced them into an amazingly expensive license system that can take years to pay off, letting Uber in here instantly devalued their licenses.

      So on one hand I like the idea of Uber, but it's also extremely unfair they get a completely free ride when it comes to everything else the taxi drivers MUST adhere to, the training, insurance, licenses that cost many hundreds of thousands, etc, etc. S

    • by Anonymous Coward

      they aren't profitable now; https://www.bloomberg.com/news/articles/2016-08-25/uber-loses-at-least-1-2-billion-in-first-half-of-2016 says they lost a billion or so in 6 months of 2016.

    • remain

      "remain"? Uber would have to start being profitable for the word "remain" to be appropriate.

    • by Anonymous Coward

      All markets should dictate this. They are a taxi service, plain and simple. They are in no way shape or form anything else.

      They should abide by any rules, laws and regulations that any taxi service has to follow. Including having the drivers as employees, they are not contractors. Any company using a large amount of "independent contractors" is simply dodging taxes and other benefits that should be paid out by them. I'm looking at you Dish and DirectTV.

  • by Anonymous Coward
    But this seems clearly different.
    There are certain expectations of an employee, like working a set number of hours per month, or performing a fixed amount of work.
    An Uber "employee" can decide exactly how much work to do each month. They are completely in control. (as far as I understand it)
    Also, no one told the guy to buy candy. I can buy all the candy I want and say it's for customers, but if I go to my boss to reimburse me, he will probably pay me back since he is a pretty good guy, but still. My point i
    • by Anonymous Coward on Wednesday February 15, 2017 @04:27PM (#53875703)

      Uber (at least in the US) dictates which tools you're allowed to use on the job, which is one of the big tests in employee vs. contractor designations. Try driving for Uber if you have a coupe, or if you have a beat-up old clunker of a car. It's not going to happen, you must have a 4-door vehicle, it must be in attractive condition, etc. Employers have lost suits over this sort of thing before. Specifying "you may only use DeWalt tools on this contract" can be enough to have your contractors qualify as employees.

      There's also the scenario where Uber's app won't run, or won't run properly, if you also have a competing app (Lyft etc.) open at the same time. Ergo, Uber prevents you from accepting work from other sources, another big test for employee classification.

      I applaud Uber drivers who are fighting for their rights.

      • Nearly EVERY taxi driver is a private contractor. A company owns the cabs, and the licenses. They then lease these out to the cabbies to drive. No benefits. No W2.

        Second, why are these laws ignored? I work for a company on a government contract. We have dictated to us: where we sit, what machine we use, and when we have to be there for work.

        "Specifying "you may only use DeWalt tools on this contract" can be enough to have your contractors qualify as employees."
        But they're not specifying that. They're sp

      • I think there is a 'huge' difference between specifying specific tools 'dewalt' only and specify the 'quality of the materials' to be used.
        In the case of this service the vehicle is not a tool it is part of the materials needed to accomplish the job.
        Maybe uber should put an end to the argument and require all of it's drivers to also install lyft and to give proof of another job.
        Do you suppose that would make the current people trying to claim they are employees happy?
        Basically if you are using uber as your

      • uber leasing cars / cell phone costs / etc are also issues.

        Uber push for control with them renting out the tools needed for the job is not a good thing to have with contractors or even employees. Even said that you can rent ours or use your own is iffy. Other "contractors" have been forced to rent stuff like fedex like with there scanners.

  • Someone comes up with an idea that's pretty good, is designed for people to work part time to pick up some cash, minimal regulations, etc. and it's a pretty good thing for everyone all around.

    Then some loser decided to do it wrong, wants free shit and the government steps in an gives it to him.

    Now an innovative company, built for part time workers, is turned into just another cab company with full time employees.

    • by jwymanm ( 627857 )
      Totally agree, I do part time driving for both popular companies and would not be able to do so if I had to meet specific hour requirements like an employee would. I wouldn't even want to try honestly. There is huge freedom in switching on/off driver mode. This is just gov money grabbing probably from either people planted by taxi businesses or a bunch of people that are miserable with their lives anyway.
      • The way I see it, Uber isn't a taxi company. Uber provides a platform as a service allowing service providers (ride share drivers) to find customers (passengers). The service providers might count as independent taxi drivers and thus be taxi companies themselves.

        If Uber drivers are Uber employees, then Uber is providing the taxiing service, and is a taxi company. That's a lot different.

        In other words: Uber is basically a phone book and telephone rolled into one, with a listing of cabbies and their

        • Re:Never Fails (Score:5, Informative)

          by Nidi62 ( 1525137 ) on Wednesday February 15, 2017 @04:58PM (#53875899)

          The way I see it, Uber isn't a taxi company. Uber provides a platform as a service allowing service providers (ride share drivers) to find customers (passengers). The service providers might count as independent taxi drivers and thus be taxi companies themselves.

          Drivers can't set prices, can't turn down (too many) customers, can't drive whatever car they want, etc. Uber drivers aren't contractors.

          • Most contractors don't set prices. They can accept the price or move on. Can't turn down too many customers. Well guess what, you can't go too many days without coding and remain a contractor either. Can't drive whatever car they want. Nope...you need to have a tool that meets a modicum of professionalism. Yes, you're a contractor...but when you go to meetings you are required to dress appropriately...or you lose the privilege of being a contractor.

            • Ebay gives sells alot more room of control then uber does.

            • yeah only in the perverse regions of the tech industry where they're trying to avoid employment laws and taxes. In every contact I've done there's been a price negotiation. Mostly, I asked a price and got it. One company haggled the price up for some reason I could never fathom. Whenever I've hired contractors, I say the job description, and they've always quoted a price.

            • Most contractors don't set prices.

              If you're not negotiating for your prices, then you're not much of a contractor: a person who produces results for a fee.

              Can't drive whatever car they want. Nope...you need to have a tool that meets a modicum of professionalism. Yes, you're a contractor...but when you go to meetings you are required to dress appropriately...or you lose the privilege of being a contractor.

              What you're describing is an employee, not a contractor. If your employer is setting conditions on what

          • If I work as a contractor through a management company and turn down projects, they're going to start paying someone else who actually wants to do the work.

            And if I don't have the proper tools for the jobs, I don't get the jobs.

            A 2 door car is not sufficient because the passenger is trapped until the driver lets them out.

            A beat up junker isn't sufficient because passengers expect a car that will make it to the destination.

            There's a very huge difference between not being available during certain hours and se

          • by MobyDisk ( 75490 )

            Isn't all that secondary to the fact that they can work any hours you want, at any location they want, they provide your own tools, and they can turn down customers? I disagree with your assessment that they cannot turn down too many customers. They can turn down as many customers as they want by not signing in to the app. They can't sign-in to the app, mark that they are open for business, then turn down customers. But that's just being an jerk.

            There's lots of professions where the fees are fixed. Con

            • by Uberbah ( 647458 )

              Isn't all that secondary to the fact that they can work any hours you want, at any location they want, they provide your own tools, and they can turn down customers?

              No.

              I disagree with your assessment that they cannot turn down too many customers. They can turn down as many customers as they want by not signing in to the app.

              Laughable.

              But that's just being an jerk

              No. That's you being a corporatist bootlicker, for a corporation that DGAF about you.

          • Are users of Amazon's Mechanical Turk also Amazon employees? They can't set prices, but they can take work. In this case, the Uber Mechanical Turk allows clients to offer work (seek ride) and to provide that work (provide ride); the difference is that the client offering work (ride seeker) sets the price on Amazon's Mechanical Turk.

            Neither of these lets the contractor set the price.

    • Minimal regulations? Nice euphemism for shamelessly breaking the law.

      • by sycodon ( 149926 )

        Enlighten us.

        • In many countries drivers for hire must have a professional driving licence and a professional car insurance. And don't give me the crap about the Uber insurance, it covers far less than even a private car insurance in several European countries. Feel enlightened already?

      • Minimal regulations? Nice euphemism for shamelessly breaking the law.

        I think by "minimal regulations" he means that it's an easy thing to get into, unlike becoming an actual cab company driver.

    • Re:Never Fails (Score:5, Insightful)

      by Nidi62 ( 1525137 ) on Wednesday February 15, 2017 @04:49PM (#53875847)

      Someone comes up with an idea that's pretty good, is designed for people to work part time to pick up some cash, minimal regulations, etc. and it's a pretty good thing for everyone all around.

      Except there are regulations around offering yourself for hire for personal transportation. Just because you own a boat doesn't mean you can take up commercial fishing part-time to make some extra cash either without following proper regulations and licensing. If you want a part-time job to make some extra cash wait some tables, tend bar, be a bag boy at a grocery store, or work swing shift in a bakery. Just wanting to make a little extra money doesn't justify ignoring local, state, or federal laws and regulations.

      • by sycodon ( 149926 )

        Uber complies with state and federal laws. Local laws usually are silent on Uber until the Cab industry lobbies for changes.

        See Austin TX. Urber was here, working quite well, people loved it. Taxi companies got one of their stooges on the city council to start passing regulations, Uber left.

        THAT'S your fucking Precious Government.

    • Someone comes up with an idea that's pretty good, is designed for people to work part time to pick up some cash, minimal regulations, etc. and it's a pretty good thing for everyone all around.

      I think you're posting in the wrong discussion - because there's considerable regulation both when it comes to hiring labor and when comes to transporting paying passengers. Regulation that Uber has consistently tried to circumvent, first with their nonsensical "ride sharing" claims, then with their equally nonsensic

  • Labor Laws (Score:4, Insightful)

    by zifn4b ( 1040588 ) on Wednesday February 15, 2017 @04:36PM (#53875763)

    I'm pretty sure if you're employing people in different countries you have to abide by their labor laws. You can't just push American labor laws on other countries. Cost of doing business there uber. Want to be a global multi-national company? You have to pay to play.

    Or maybe we should just all agree on some global labor standards but I bet you America wouldn't like that one bit.

  • from the summary:

    "A Brazilian judge ruled that a driver using the Uber ride-hailing app is an employee of the San Francisco-based company and is entitled to workers' benefits, adding to the global debate over labor rights for drivers on the platform...."

    Did anyone notice the contradiction? The submitter reports a Brazilian judge requiring that mandatory entitlements be given to Uber drivers, then within the same sentence instead refers to "workers rights".

    Entitlements are the opposite rights. An entitlement is prohibition of liberty; If the Uber driver is entitled to receive X dollars in compensation then the driver can not choose to work for less. A right is a grant of liberty; If I have the right to free speech then I can choose wha

    • by arth1 ( 260657 )

      Entitlements are the opposite rights.

      In the US. In most of the rest of the world, entitlements are part of rights.
      This driver was in Brazil.

  • If they're Uber employees. Create a benefits package for Brazil. It can be utterly crappy and include pretty much nothing but a auto insurance discount.

    Then mandate all uber employees have to be available from 8am to 6pm.

  • The linked article didn't say what the basis for the decision was. And it only applied to one driver. It does not say they had to reclassify all their drivers as employees.

  • Uber's drivers are prohibited from subcontracting others to do multiple jobs for them at the same time, so uber is exerting too much control over them, causing the drivers to be employees.
  • There was a time when benefits were optional or rare. Then price and wage controls were introduced and the only way employers could attract good talent was to offer them "benefits". Now they are mandatory. Things might be better if people got more money and chose their own health plan outside of work just like car insurance. (Along with being able to buy across state lines and tort reform but that's a story for another time.)

  • For those who can read Portuguese: Sentença [conjur.com.br].
    It's pretty good.

    The judge says that according to Brazilian Labor Law (CLT), employee is "any natural person who provides services on a regular basis to an employer, under his or her dependence and on a salary basis", so the elements to recognize the employment relationship are: natural person (i.e. not a company - legal person), personal relation, regular nature of the relationship, onerosity (I've never seen this word in English, in this context means that

  • great loss for uber drivers and customers alike.

    If you don't like conditions that Uber provides, don't freaking work for them!
  • To scale the sheer volumes of drivers to field the demand fares have during heavy events is not possible if everyone has to drive a black limousine and only work as a driver 30+/hours per week with bureaucratic registration regulatory license. Same thing goes for AirBnB and other gig / excess capacity platforms. So I respectfully disagree that ride share drivers should categorically be employees.

    Analogy: Lots of beaches and pools have signs indicting swim at your own risk. Must all beaches provide life

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