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Read Case 5.1 and answer the following questions:
1) This lawsuit was filed by two women, Jane Doe 1 and Jane Doe 2, who were sexually assaulted by Uber drivers. As the court notes, Doe 1 and Doe 2 sued Uber for various tort claims, including battery, assault, false imprisonment, and intentional infliction of emotional distress. Obviously, Uber itself (the corporate entity) cannot commit certain torts like battery, but its employees can. What theory of liability (the Latin phrase) did Doe 1 and Doe 2 present as the basis for holding Uber, rather than the actual perpetrators, liable for the Uber drivers’ torts?
2) This case presented two legal issues for the court. The first legal issue is whether Uber drivers are employees or independent contractors. In this lawsuit, Uber’s lawyers argued that its drivers were independent contractors. Why did Uber make this argument? In other words, what is the legal significance of being an independent contractor, rather than an employee, in a case like this where the worker at issue has committed various torts while performing their work for the employer?
3) An important aspect of this case is its procedural context, specifically, a motion to dismiss where the defendant argues that the plaintiffs’ complaint fails to state a claim on which relief can be granted or that the allegations of the complaint are simply insufficient to rule in the plaintiffs’ favor. When ruling on a motion to dismiss, the court will seek to determine whether the plaintiff’s complaint “contain[s] sufficient factual matter, accepted as true, to state a claim . . . that is plausible on its face.” With this standard in mind, why did the court find the factual allegations of the plaintiffs’ complaint sufficient to claim that these drivers were employees, rather than independent contractors? In other words, why were the facts as alleged sufficient to withstand the defendant’s motion to dismiss on this first legal issue of employee versus independent contractor?
4) At the top of page 123 (Ch. 5-2c), Bagley states that “[w]hether a person is an independent contractor or an employee depends on what he or she does, not on how the relationship is characterized by the parties.” In other words, simply labeling a worker an independent contractor does not make them so if the realities of the employment situation suggest that worker is actually an employee. Why do you think that courts do not allow employers to decide for themselves a worker’s proper classification? Hint: Review Chapter 5-2c.
5) In the “Comments” section at the end of this case, the author notes that Uber has faced numerous lawsuits in various states regarding the proper classification of its drivers, and that different courts have come to different conclusions on that issue. Does it make sense to you that an injured customer could hold an employer like Uber vicariously liable for an employee’s sexual assault (or other tortious conduct) in one state, but not in another? Why or why not?
6) As noted, this case presented two legal issues for the court. The second issue is whether “sudden sexual assaults” by Uber drivers are outside the scope of an Uber driver’s duties under California law. How did the court rule on that issue and what was the court’s reasoning to support that decision?
7) In the end, the court denied Uber’s motion to dismiss the claims against Uber because the plaintiffs had sufficiently alleged facts (1) to suggest the Uber drivers were employees, rather than independent contractors; and (2) to support the claim that the drivers were acting within the scope of employment when they assaulted the plaintiffs. As would be expected, Uber then settled the case with Doe 1 and Doe 2 (but the settlement terms were not made public). In your opinion, what was the most interesting or surprising aspect of this case?
8) Overall, this case shows how critical it is for employers and courts to properly distinguish between employees and independent contractors. In your opinion, if you were the judge in this case, would you find that Uber drivers are employees or independent contractors? What would be the basis for your opinion?
Case 5.1
A Case in Point: Summary
Jane Doe 1 v. Uber Technologies, Inc.
United States District Court for the Northern District of California
184 F. Supp. 3d 774 (N.D. Cal. 2016).
Facts
Uber Technologies operates as a transportation network company
allowing individuals to download its smartphone application and use the
app to make a transportation request. The app matches individuals with
an Uber driver in the area, who picks them up and drives them to their
destination. The customer pays for the ride through the app with a credit
card. Uber pays the driver a share of the fare and keeps the rest. Uber
drivers apply for their jobs online. An applicant uploads his or her photo,
license, registration, and proof of insurance; and a third-party company
hired by Uber does a background check. When the driver is approved, he
or she is available to the public to provide transportation through the
app. Neither the drivers nor the passengers pay to download the app.
In 2015, Jane Doe 1 and her friends used Uber to arrange a car ride in
Boston, Massachusetts. After the driver dropped off Doe 1’s friends, the
driver began to sexually assault Doe 1, then drove more than 15 minutes
off route, parked the car in a remote area, and continued to sexually
assault her until she was able to unlock the door and escape. In a
separate incident in August 2015 in Charleston, South Carolina, Jane
Doe 2 and her friends used Uber to arrange a ride to a bar. The driver
said he would give the group a ride home. The driver then drove Doe 2
and her friend to her friend’s apartment. Doe 2 mentioned that she
intended to look for her phone in the friend’s apartment then walk two
blocks to her home. When Doe 2 left the apartment, the driver was
outside. “[B]elieving that [the driver] was acting in his capacity as an
Uber driver,” she got into his car and gave him her address. The driver
began to drive the wrong way and, after locking the car doors, drove to a
remote area and raped her.
Doe 1 and Doe 2 sued Uber alleging, among other claims, battery,
assault, false imprisonment, and intentional infliction of emotional
distress, relying on the theory of respondeat superior. Uber filed a
motion to dismiss those claims, arguing that the plaintiffs had not
alleged sufficient facts to establish that there was an employment
relationship between Uber and the two drivers. Instead, Uber argued, the
drivers were independent contractors. Uber alternatively asserted that it
could not be vicariously liable because sexual assault is outside the
scope of an employee’s duties.
Issues Presented
What facts does a plaintiff need to allege to survive a motion to dismiss
a case alleging that a worker is an employee and not an independent
contractor? Under California law, are “sudden sexual assaults by
employees” outside the scope of an employee’s duties?
Summary of Opinion
The U.S. District Court for the Northern District of California began by
explaining that under California law an employer may be held
vicariously liable for torts committed by an employee within the scope
of employment. Under California law, control is the key factor in
determining whether an individual is an employee or an independent
contractor, with classification depending on “‘whether the person to
whom service is rendered has the right to control the manner and means
of accomplishing the results desired.’” California also considers factors
derived from section 220 of the Restatement (Second) of Agency,
including
•
(1)
whether the individual is engaged in a distinct occupation or
business;
•
•
•
•
•
•
•
(2)
the kind of occupation, with reference to whether, in the locality, it
is done under the direction of the principal or by a specialist alone;
(3)
the skill required;
(4)
which party supplied the tools and place to do the work;
(5)
the length of time the services are to be performed;
(6)
whether the individual is paid by the job or by the time;
(7)
whether the work is part of the regular business of the principal;
and
(8)
whether the parties believe they are creating an employer–
employee relationship.
Applying these factors, the court concluded that the facts alleged were
sufficient to claim plausibly that an employment relationship did exist.
Uber’s business is dependent on a large pool of nonprofessional drivers,
whom Uber can terminate at will. Uber requires the drivers to accept all
ride requests, and it sets the fares without driver input. Drivers cannot
negotiate fares, and Uber can modify the charges to a particular
customer if the driver takes a circuitous route. Uber requires each driver
to dress professionally, to send the customer a text message when the
driver is one-to-two minutes away, to keep the car radio off or tuned to
specific types of music/news, to open the door for the customer, and to
pick up the passenger on the “correct side.” Uber also controls the
customers’ contact information. The court also noted that the drivers had
to follow detailed requirements, including their conduct with customers,
the cleanliness of their vehicles, and their timeliness.
Uber argued that its drivers were independent contractors, asserting that
•
•
(1)
the drivers generally do not receive a salary but are paid by the ride
and
(2)
the drivers supply their own cars and their insurance.
The court found that these facts were not dispositive, noting that FedEx
drivers were classified as employees even when they supplied their own
trucks and insurance. The court further noted that the plaintiffs had
alleged that in certain cities Uber drivers may get a guaranteed minimum
rate, “tantamount to a salary,” and that in January 2016 Uber had
announced that its drivers would have guaranteed earnings, which the
plaintiffs viewed as guaranteed salaries.
Although the court acknowledged that facts could be revealed that
would disprove the plaintiffs’ allegations or “tilt the scale toward a
finding” that the drivers were independent contractors, the facts as
alleged in the complaint were sufficient to sustain a motion to dismiss.
Uber argued in the alternative that it could not be liable for the drivers’
acts because sudden sexual assaults by employees are outside the scope
of their duties and thus could not support employer liability. Under
California law, this is not necessarily so. The doctrine of respondeat
superior will apply if the plaintiff proves the employee’s tortious
conduct was committed within the scope of employment, an analysis
that asks whether “in the context of the particular enterprise an
employee’s conduct is not so unusual or startling that it would seem
unfair to include the loss resulting from it among other costs of the
employer’s business.” Such a “foreseeability” analysis looks at the
relationship between the nature of the work and the type of tort
committed, not at statistical frequency.
California seeks to further three policy goals underlying the respondeat
superior doctrine:
•
•
•
(1)
preventing future injuries,
(2)
compensating victims, and
(3)
spreading the losses caused by an enterprise equitably.
Sexual misconduct by an employee does not always bar vicarious
liability, but there must be a “causal nexus” to the employee’s work and
the wrongful acts must not be per se unforeseeable. For example, the
city of Los Angeles was held liable when a police officer, after detaining
a woman for a traffic stop, followed her to her home and raped her. In
contrast, an ultrasound technician was found not to be acting within the
scope of his employment when he molested a patient during an
examination. Unlike the police officer, the ultrasound technician did
not have legal or coercive authority over the plaintiff, and his battery of
the patient was “independent of the narrow purpose for which plaintiff
was asked to trust him.” Thus, under California law, the liability of a
private employer “does not turn on the vulnerability of the victim but on
the extent to which the tort of the employee is incident to his
employment.” The court found that “sexual assault by a taxi driver (or
a taxi-like driver)” might not be so unusual or startling that it would
seem unfair to include the loss resulting from it as a cost to the
employer’s business. Holding Uber liable would further the underlying
policy goals of respondeat superior, especially because there was no
statute, such as Title VII, on which the plaintiff could rely for relief.
In the case brought by Doe 2, Uber argued that the plaintiffs had not
sufficiently alleged that the driver was using the Uber app when he
committed the assault. As a result, Uber claimed, he could not have been
acting within the scope of employment. The court explained that it was
no longer a principle in California that an employer could be vicariously
liable for an employee’s assault “only when” the assault was committed
to further the interests of the employer (the “motive-benefit” test). A fact
finder could determine that the Doe 2 driver was acting within the scope
of employment even if rides were offered and received later that evening
without use of the app. Thus, the court could not determine that, as a
matter of law, sexual assault by an Uber driver is always outside the
scope of employment, assuming the drivers were found to be employees.
“Like a police officer who rapes a detained woman … sexual assault by
an Uber driver may be incidental to the operation of its business.”
Result
The court denied Uber’s motion to dismiss the claims asserted under the
respondeat superior theory. The plaintiffs had sufficiently alleged facts
•
•
(1)
to plausibly suggest that an employment relationship existed
between the drivers and Uber and
(2)
to support the claim that the drivers were acting within the scope of
employment when they assaulted the plaintiffs.
Comments
Uber has faced numerous suits regarding the proper classification of its
drivers, and the results have varied from state to state. For example, the
New York Department of Labor ruled in 2016 that two former Uber
drivers should be treated as employees and so were eligible for
unemployment benefits. In contrast, a Florida court ruled in 2017 that
two Uber drivers were not employees. In a class action suit in California
involving worker classification, Uber agreed in 2016 to a tentative $100
million settlement agreement that provides that the workers will be
classified as independent contractors, but that Uber will provide the
drivers with additional protections, including changing the procedures
for “deactivation” from service, providing an appeals process, and
allowing them to collect tips.
