RECEIVED, 3/8/2016 3:55 AM, Mary Cay Blanks, Third District Court of Appeal

IN THE DISTRICT COURT OF APPEAL

FOR THE THIRD DISTRICT
STATE OF FLORIDA
DARRIN E. MCGILLIS
Appellant,
vs.
Third DCA Case No. 3D15-2758
DEPARTMENT OF ECONOMIC
OPPORTUNITY; and RAISER LLC,
dba UBER; ET AL.,

L.T. Case No. 0026 2834 68-02

Appellees.
____________________________/

APPELLANT'S INITIAL BRIEF

__________________________________________
On Appeal from the final agency order of the
State of Florida Department of Economic Opportunity
Reemployment Assistance Appeals.
__________________________________________

Respectfully Submitted,
/s/ Darrin E. McGillis____
Darrin E. McGillis, Appellant
In Proper Person
22205 SW 103 Avenue
Miami, Florida 33190
Telephone.: (305) 506-4411
Email(1): mcgillismusic@yahoo.com
Email(2): darrinmcgillis@gmail.com
i

TABLE OF CONTENTS
TABLE OF CITATIONS ...................................................................................... iii
PRELIMINARY STATEMENT ............................................................................1
STATEMENT OF THE CASE AND FACTS .......................................................3
SUMMARY OF ARGUMENT .............................................................................12
ARGUMENT ..........................................................................................................16
A.

Argument on the Merits; Appellant was an Employee of Uber..................16

a. Control Over the Work ..................................................................................17

b. Distinct Occupation or Business....................................................................23
c. Whether the Work is Usually Done Under the Direction of the Employer or
by a Specialist Without Supervision ..................................................................24
d. The Skill Required in the Occupation ...........................................................27
e. Whether the Employee Supplies the Instrumentalities, Tools, & Place of
Work ..................................................................................................................28
f. The Length of Time for Which the Person is Employed ...............................30
g. Method of Payment, Whether by the Time or by the Job .............................32
h. Whether or Not the Work is Part of the Regular Business of the Employer.35
i. Whether or Not the Parties Believe they are Creating an Independent
Contractor Relationship .....................................................................................39
j. Whether the Principal is or is not in the Business ..........................................40
B.

Standard of Review .....................................................................................43

CONCLUSION.......................................................................................................45
CERTIFICATE OF SERVICE ............................................................................46
STATEMENT OF COMPLIANCE WITH RULE 9.210(a)(2) .........................47
ii

TABLE OF CITATIONS
CASES
4139 Mgmt. Inc. v. Dept of Labor & Empt,
763 So.2d 514 (Fla. 5th DCA 2000) ................................................................ 13, 17
Adams v. Dept of Labor & Empt Sec., Div. of Unemployment Comp.,
458 So.2d 1161 (Fla. 1st DCA 1984) ......................................................... 23, 33, 39
Air Couriers Intl v. Empt Dev. Dept, 150 Cal.App.4th 923 ...............................21
Alexander v. FedEx Ground Package Sys., Inc.,
765 F.3d 981 (9th Cir. 2014)............................................................................ 18, 25
Berrocal v. Moody Petroleum, Inc.,
2009 WL 455448, (S.D. Fla. Feb. 22, 2009) ..........................................................31
Bowdoin v. Anchor Cab 643 So.2d 42 (Fla. 1st DCA 1994) .......................... 34, 35
Campos v. Zopounidis, 2011 WL 2971298, (D. Conn. July 20, 2011)..................30
Cantor v. Cochran, 184 So.2d 173 (Fla. 1966) ............................... 2, 12, 22, 35, 39
Carlson v. FedEx Ground Package Sys., Inc.,
787 F.3d 1313 (11th Cir. 2015)...............................................................................18
Clincy v. Galardi S. Enterprises, Inc.,
808 F.Supp.2d 1326 (N.D. Ga. 2011) .....................................................................30
Conley v. Oliver & Co., 721 A.2d 1007 (N.J. Super. Ct. App. Div. 1998).............22
Cotter v. Lyft, Inc., 60 F.Supp.3d 1067 (N.D. Cal. 2015) ......................... 26, 27, 37
iii

Florida Hospital v. Agency for Health Care Administration,

823 So.2d 844 (Fla. 1st DCA 2002) ........................................................................43
Gonzalez v. Workers Comp. Appeals Bd., 46 Cal.App.4th 1584 (1996) ..............30
Grant v. Woods, 71 Cal.App.3d 647 (Cal. Ct. App. 1977) .....................................39
Gustafson v. Bell Atlantic Corp., 171 F.Supp.2d 311 (S.D.N.Y. 2001) ................28
Harper ex rel. Daley v. Toler, 884 So.2d 1124 (Fla. 2d DCA 2004) .....................17
Harrell v. Diamond A Entmt, Inc., 992 F.Supp. 1343 (M.D. Fla. 1997) ............21
Hathcock v. Acme Truck Lines, Inc., 262 F.3d 522 (5th Cir. 2001) ....................41
Herman v. Express Sixty-Minutes Delivery Serv., Inc.,
161 F.3d 229 (5th Cir. 1998)............................................................................ 29, 41
Hicks v. Kemp, 79 So.2d 696 (Fla. 1955) ...............................................................36
JHK Enter. v. Dept of Indus. Relations, 142 Cal.App.4th 1046 ................... 21, 35
Justice v. Belford Trucking Co., Inc., 272 So.2d 131 (Fla. 1972) ........................28
Keith v. News & Sun Sentinel Co., 667 So.2d 167 (Fla. 1995) ...............................2
La Grande v. B&L Servs., Inc., 432 So.2d 1364 (Fla. 1st DCA 1983) .................13
Lee v. Am. Family Life Assurance Co. of Columbus,
431 So.2d 249 (Fla. 1st DCA 1983) ........................................................................39
Lewis v. ASAP Land Express, Inc., 554 F.Supp.2d 1217 (D. Kan. 2008) ...........29
Magarian v. S. Fruit Distrib., 1 So.2d 858 (Fla. 1941) ............................ 13, 30, 40
Malloy v. Fong, 37 Cal.2d 356 (1951) ....................................................................26
iv

Matter of BKU Enter., Inc., 513 N.W.2d 382 (N.D. 1994) ....................................22
Matter of Polinsky, 163 A.D.2d 684 (N.Y. App. Div. 1990)...................................32
Metropolitan Dade County v. State Department of Environmental Protection,
714 So.2d 512 (Fla. 3d DCA 1998).........................................................................43
Natl Sur. Corp. v. Windham, 74 So.2d 549, (Fla. 1954) ......................................17
OConnor v. Uber Technologies, Inc., 2015 WL 1069092
(N.D. Cal. Mar. 11, 2015) ........ 14, 16, 19, 21, 22, 23, 25, 34, 36, 37, 38, 39, 40, 41
O'Connor v. Uber Technologies, Inc.,
No. C-13-2826 EMC (N.D. Cal. Sept. 1, 2015) (Doc. 341)....................................42
Orcutt v. Envtl. Technologies, Inc., 432 So.2d 701 (Fla. 1st DCA 1983) .............32
Parlato v. Secret Oaks Owners Association,
793 So.2d 1158 (Fla. 1st DCA 2001) ......................................................................43
Parrilla v. Allcom Const. & Installation Servs., LLC,
2009 WL 2868432, (M.D. Fla. Aug. 31, 2009)................................................ 29, 30
Pena v. Handy Wash, Inc., 28 F.Supp.3d 1289 (S.D. Fla. 2014) .........................28
Ruiz v. Affinity Logistics Corp., 754 F.3d 1093 (9th Cir. 2014) .............. 18, 35, 39
S.G. Borello & Sons, Inc. v. Dept of Indus. Relations,
48 Cal.3d 341 (1989) ........................................................................................ 13, 42
Sakacsi v. Quicksilver Delivery Sys., Inc.,
2007 WL 4218984, *7 (M.D. Fla. Nov. 28, 2007) ..................................................29
v

Sales v. Bailey, 2014 WL 3897726, (N.D. Miss. Aug. 8, 2014) .............................31

Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (11th Cir. 2013) ........................20
Schwann v. FedEx Ground Package Sys., Inc., 2013 WL 3353776, *5
(D. Mass. July 3, 2013) opinion withdrawn in part,
2015 WL 501512 (D. Mass. Feb. 5, 2015) ..............................................................36
Shultz v. Mistletoe Express Serv., Inc., 434 F.2d 1267 (10th Cir. 1970) ..............29
Solis v. A+ Nursetemps, Inc., 2013 WL 1395863
(M.D. Fla. Apr. 5, 2013) .................................................................................. 33, 34
Solis v. Intl Detective & Protective Serv., Ltd.,
819 F.Supp.2d 740 (N.D. Ill. 2011) ........................................................................31
Tower Ins. Co. of N.Y. v. Rainbow Granite & Marble, Inc.,
2010 WL 3604998 (S.D. Fla. Sept. 13, 2010) ........................................................32
Transportes Aereos Nacionales, S.A. v. De Brenes,
625 So.2d 4 (Fla. 3d DCA 1993).............................................................................44
Univ. Dental Health Ctr., Inc. v. Agency for Workforce Innovation,
89 So.3d 1139 (Fla. 4th DCA 2012) ................................................................ 33, 35
Usery v. Pilgram Equip. Co., Inc., 527 F.2d 1308 (5th Cir. 1976) .......................41
Verchick v. Hecht Invs., Ltd., 924 So.2d 944 (Fla. 3d DCA 2006)
rev. denied, Bocelli v. Hecht Invs., Ltd., 935 So.2d 1 (Fla. 2006).........................17
Walter v. Walter, 464 So.2d 538 (Fla. 1985) ..........................................................44
vi

Yellow Cab Coop., Inc. v. Workers Comp. Appeals Bd.,

226 Cal.App.3d 1288 (Cal. Ct. App. 1991) .............................................................35
STATUTES
120.68(7)(d), Fla. Stat. ..........................................................................................43
Cal.Lab.Code 351 .................................................................................................42
Fair Labor Standards Act, 29 U.S.C. 201 ...........................................................14
Restatement (Second) of Agency 220 (1958) ............................................... 12, 13
OTHER AUTHORITIES
Administrators Interpretation No. 2015-1, Wage and Hour Division
(Dept of Labor July 15, 2015) ...............................................................................15
Berwick v. Uber Technologies, Inc.,
No. 11-46739 EK (Cal. Lab. Comm. June 3, 2015) ........................................ 13, 18
RULES
Federal Rule of Civil Procedure 23........................................................................42

vii

PRELIMINARY STATEMENT
In this brief, the Appellant, Darrin E. McGillis shall be referred to as the
"Appellant". The Appellee, Raiser LLC shall be referred to as "Uber", and the
Appellee, the Department of Economic Opportunity shall be referred to as
"DEO". Citations to the original seven volume record on appeal will be made by
the letter (R.) and the appropriate page number(s), with reference to the Transcript
of the administrative proceedings of August 17, 2015, being referred to as (TR.),
including references that indicate the initials of the witness providing testimony
and the pages and line numbers of the hearing transcript. MG refers to Matthew
Gore (Ubers Florida General Manager and company representative at the
hearing); DM refers to the Appellant Darrin McGillis; and MT refers to the
Florida Department of Revenue representative, Myra Taylor.
At the August 17, 2015, administrative hearing (TR.01-342), the Appellant
demonstrated that drivers are being misclassified as independent contractors by the
Appellee Raiser, LLC (Uber). As such, Appellant and other drivers for Uber are
entitled to Reemployment Assistance.
As the record shows Uber either employs more than 10,000 drivers (MG:
TR.149:12-20) or more than 20,000 drivers (R.863-864) in the state of Florida.
See (R.438).

However, Uber contends that these drivers are merely driver-

partners, and classifies them as independent contractors. See id. By failing to

1

recognize that its drivers are employees, Uber avoids paying unemployment
contributions on behalf of its drivers and reaps enormous savings from skirting
other employee protections as well.
Although Uber attempts to mask the reality of its employment relationship
with drivers, courts have repeatedly held that if the actual practice of the parties
belie the creation of the status agreed to by the parties, the actual practice of the
parties should control. Keith v. News & Sun Sentinel Co., 667 So.2d 167, 181
(Fla. 1995). A workers status depends not on the statements of the parties but
upon the circumstances of their dealings with each other. Cantor v. Cochran,
184 So.2d 173 at 174 (Fla. 1966). Here, based on the facts presented in the record,
and the legal analysis set forth in this brief, it is clear that Uber has created an
employment relationship with its drivers, including the Appellant, and so this
Court should reverse the final order of the Department of Economic Opportunity
(R.866-896) and reinstate the original finding by the Florida Department of
Revenue which correctly concluded that Appellant was in fact an employee of
Uber. See, (R.8-9), (R.469), (R.158-161).

STATEMENT OF THE CASE AND FACTS

1. Uber is a California-based company that arranges transportation services for
customers through its mobile phone application. See (R.67). In order to
describe its business, Uber has used the slogan Everyones Private Driver.
(MG: TR.149:1-2); (R.394). In order to use Uber, passengers request a ride
through the Uber Rider App and then Uber forwards the request to the
nearest available driver. (MG: TR.109:8-13). Uber is then able to track the
ride through a GPS system embedded in its software. (MG: TR.136:11-16).
After the ride has been completed, Uber charges the riders credit card
directly; riders store their credit card information with Uber. Passengers
cannot pay the driver directly; they can only pay through the credit card that
they have on file with Uber. (MG: TR.119:13-16); (MG: TR.121:2-5).
2. More than 10,000 individuals drive for Uber in Florida. (MG: TR.142:1516); (MG: TR.149:14-15); (R.438). However, Uber's representative stated
weeks before giving sworn testimony in this case that the number of drivers
was over 20,000 in Florida. (R.863-864). Uber classifies all of its drivers as
independent contractors. (R.69).

Through its (unsigned) contract with

drivers, Uber retains full discretion to terminate its drivers at any time, for
any reason. (R.75-76).

3. Uber does not charge for its mobile phone application or software, which
can be downloaded for free. (MG: TR.104:15). Instead, Uber derives
revenue by retaining a percentage of the fare for each ride that its drivers
provide passengers. (MG: TR.170:14-18); (MG: TR.180:15-18); (R.430).
4. In order to drive for Uber, drivers must complete an online application on
Ubers website. Drivers must provide Uber with their date of birth, address
and social security number, upload copies of their drivers license,
registration, and insurance, and demonstrate that their vehicle meets Ubers
specifications. (MG: TR.103:7-15); (MG: TR.112:3-22); (DM: TR.203:2023). In Appellants case, it was required to demonstrate that his vehicle was
ten model years old or newer. (R.70). Drivers must also consent to a
background check. (MG: TR.103:15); (MG: TR.105:21-24 106:105).
After passing the background check, the Appellant was required to watch
several training videos before being permitted to download Ubers mobile
phone application and receiving a Driver ID. (DM: TR.206-5-7); (DM:
TR.204-5-16). The training videos included information about accepting
ride requests, greeting and picking up passengers, and when and how to
contact customers. (DM: TR.204:9-16); (DM: TR.251:3-21). The training
videos informed drivers that their star ratings (Ubers assessment system
under which riders have the option to provide a numerical rating and
4

comments to describe their experience on a specific ride) would be higher if

they, among other things, dressed well, opened doors for riders, and
provided riders with water and gum. (DM: TR.252:2-24 253:1-17).
5. Drivers are prohibited from sharing their Driver ID and mobile phone
application with other individuals. (MG: TR.123:16-19); (R.74). Moreover,
drivers cannot independently hire their own employees because Uber
requires each driver to go through its application process. (MG: TR.123:1214); (MG: TR.168:4-19). Appellant did not have any employees, nor did he
own or operate an independent transportation business. (DM: TR.250-1114).
6. There are no special educational requirements to become an Uber driver.
(MG: TR.150:5-7). Drivers are not required to have professional driving
experience or possess a commercial drivers license. (MG: TR.150:8-23).
Drivers must simply have had their standard drivers license for at least one
year.

(MG: TR.150:10-11).

drivers license.

Appellant does not possess a commercial

(DM: TR.269:1-4).

Appellant also did not have any

professional driving experience, or ever worked as a taxi driver, courier, or

limousine driver prior to working for Uber. (DM: TR.249:17-24 250:1-3).
7. Uber does not require its drivers to carry commercial vehicle insurance.
(MG: TR.129:3-22).

Instead, drivers must provide proof of personal

5

insurance, and Uber states that it covers drivers on its commercial insurance
policy during most periods where the drivers personal insurance policies are
exempt from coverage. (MG: TR.129:3-22).
8. When receiving a ride request, drivers are able to see only the first name of
their customer and the customers pick-up location. (MG: TR.109:14-19).
Drivers only have a specified amount of time to accept the ride request
before it is forwarded to another driver.

(MG: TR.109:19-21); (MG:

TR.110:3-7). Drivers are unable to see the riders requested destination

before accepting the trip. (MG: TR.113:14-20). Uber monitors each of its
drivers acceptance rates. (MG: TR.162:1-2); (DM: TR.280:1-4); see (DM:
TR.268:19-24). As Mr. Gore testified, drivers are encouraged to accept the
majority of trips. (MG: TR.110:11-12). Indeed, Uber, in its discretion,
retains the power to deactivate drivers who accept less than 80% of trip
requests. (R.408); see (MG: TR.110:11-15); (MG: TR.162:3-7). Drivers
who do not accept enough ride requests might also receive a warning email
from Uber, encouraging them to increase their acceptance rate.

(MG:

TR.110:19-22). Similarly, drivers must accept at least one ride every 180
days or risk being deactivated. (R.76).
9. While driving for Uber, drivers are limited to obtaining customers through
Ubers mobile phone application, who are assigned to them at random
6

(based on which vehicle is closest). (R.426). Riders cannot request specific

drivers, and drivers are prohibited from arranging future rides with
customers obtained through the application. (MG: TR.173:3-17); (DM:
TR.280:16-18); (R.426). Drivers are also prohibited from obtaining rides
through other transportation provider services while logged into the Uber
application. (R.69). While driving for Uber, drivers are not permitted to
display any removable logos or insignia of other transportation providers.
(R.69).
10.At the end of each ride, customers are asked to provide feedback about the
ride and rate the driver on a scale of one to five; drivers also have the
opportunity to rate passengers. (MG: TR.125:4-12); (MG: TR.154:9-11).
All customer feedbacks and ratings are sent directly to Uber after each ride,
and drivers cannot view this information. Instead, Uber provides drivers
with only their cumulative star rating (from all rides given, rather than from
individual riders) and periodically sends drivers a sampling of their customer
feedback. (MG: TR.154:6-18). In its discretion, Uber warns, suspends, or
terminates drivers whose star ratings fall below the minimum standards set
by the general manager in each location. (MG: TR.125:23-24 126:1-7);
(MG: TR.154:19-24 155:1-15). Drivers who are deactivated due to low
ratings, and who complete an independent driver quality course, are
7

sometimes, in Ubers discretion, permitted to resume their work driving for

Uber on a trial basis. (MG: TR.126:11-20); (MG: TR.160:2-10); (R.428).
11.The minimum rating in South Florida, where Appellant drove, is a 4.6 on a
5-point scale. (MG: TR.155:4-15). Further, Uber can, in its discretion, raise
or lower its minimum rating at any time. (MG: TR.155:7-8). For instance, if
Uber has too many drivers in a certain market, it is free to raise the
minimum rating in order to drop some of the drivers. (MG: TR.155:16-21).
Similarly, Uber could also lower the minimum rating in order to retain
drivers that might have otherwise been deactivated. (MG: TR.155:20-24
156:1-3).
12.Uber sets the fares that customers are charged, as well as the percentage of
the fare that drivers receive. (MG: TR.169:11-13); (DM: TR.259:15-17);
(R.430). Generally, the fare is calculated using a formula that is based on
time and distance. (MG: TR.120:17-22); (MG: TR.169:14-18). Under
Ubers standard service fee arrangement in most locations, Uber takes a 20%
commission from each uberX fare and a 28% commission from each uberXL
fare. (MG: TR.170:14-18). Although Ubers (unsigned) contract states that
drivers can negotiate a different rate, Ubers General Manager was unaware
of any driver who has successfully negotiated and obtained a different rate.

(MG: TR.171:5-8). Drivers are paid through direct deposit into their bank
accounts on a weekly basis. (MG: TR.121:2-5); (DM: TR.260-18).
13.Uber, in its sole discretion, can alter the fares it charges riders. (R.71);
(MG: TR.120:1-12). For instance, if a passenger complains that a driver
used an inefficient route, Uber has the discretion to alter the riders fare
without the drivers permission. (MG: TR.120:1-12); (MG: TR.191:1-11);
(R.475). Uber also retains the discretion to waive a riders cancellation fee.
(R.71); (MG: TR.117:19-24 118:1-14); (DM: TR.255:18-24 256:1-2).
Similarly, Uber unilaterally determines the cleaning fee that each driver
receives when a rider causes damage to their vehicle. (DM: TR.228:8-10);
(R.463).
14.At times, Uber offers its drivers surge pricing and guaranteed hourly rates.
(MG: TR.138:13-24); (MG: TR.139:1-24; 140:1-2).

Surge prices are

higher fares that Uber institutes, unilaterally, when the number of ride
requests exceeds the number of available drivers. (MG: TR.138:23-24
139:1-3).
15.Appellant drove for Uber from November 1, 2014, to March 30, 2015. (DM:
TR.200:4-20).
16.On March 29, 2015, a scooter ran into the rear-side door of Appellants car
as an Uber passenger that he was transporting exited the vehicle. (DM:
9

TR.269:22-24 270:1-4); (R.456-467).

Appellant contacted Uber

immediately after the collision and was advised to send pictures of the
damage. (DM: TR.270:8-18); (R.463). Following the accident, Appellant
completed six more Uber rides that day. (DM: TR.277:4-7); (R.454).
17.Uber required Appellant to complete an internal Incident Report that
included questions about the identity and address of any witnesses. (DM:
TR.270:19-24); (DM: TR.271:7-9). (R.456) Appellant asked Uber to
provide the name and address of the passenger, but did not receive the
requested information. (DM: TR.275:10-24); (DM: TR.276:1-6). Because
Appellant was under the impression that the entire form needed to be
complete before getting Ubers assistance in obtaining insurance
reimbursement, Appellant told an Uber representative that he would go to
the passenger/riders home to obtain the witness information, but he did not
actually do so. (DM: TR.271:2-21); (DM: TR.308:1-7). Appellant returned
the Incident Report to Uber without the passenger/riders personal
information.

(DM: TR.271:2-5); (DM: TR.276:13-15); (R.456-457).

Appellant was told over the phone that he had been terminated because he
stated he was going to the passengers home. (DM: TR.277:8-13). (R.468)
Appellant never received a written explanation for the termination. (DM:
TR.308:13-16). At no time did Uber ever inform Appellant that he was not
10

allowed to go to a passengers home, nor was it prohibited by any

(unsigned) contract. (DM: TR.277:14-17).
18.On April 6, 2015, Appellant filed a claim for unemployment compensation.
Upon written submissions from both parties, the Florida Department of
Revenue determined that Appellant was an employee of Uber.
TR.323:14-20); (R.469).

11

(MT:

SUMMARY OF ARGUMENT
As the evidence, the law, and the record before this Court, summarized in
this brief demonstrates, the only correct conclusion is that Uber has misclassified
its drivers, including the Appellant, as independent contractors in violation of
Florida law.
To determine a workers classification as an employee or independent
contractor, Florida courts have looked to the law of agency to guide their analysis
and have specifically considered the factors enumerated in the Restatement
(Second) of Agency 220 (1958). Cantor v. Cochran, 184 So.2d 173, 174-75
(Fla. 1966). 1 Although control is a core indicator as to whether an employment

The Restatement lists the following ten factors which Florida courts have
used to determine whether a worker is an employee or an independent contractor:
(a) The extent of control which, by the agreement, the master may exercise
over the details of the work.
(b) Whether or not the one employed is engaged in a distinct occupation or
business.
(c) The kind of occupation, which reference to whether, in the locality, the
work is usually done under the direction of the employer or by a specialist
without supervision.
(d) The skill required in the particular occupation.
(e) Whether the employer or the workman supplies the instrumentalities,
tools, and the place of work for the person doing the work.
(f) The length of time for which the person is employed.
(g) The method of payment, whether by the time or by the job.
(h) Whether or not the work is part of the regular business of the employer.
(i) Whether or not the parties believe they are creating the relation of master
and servant.
(j) Whether the principal is or is not in the business.
12

relationship exists, there is no hard and fast rule governing the question as to
when one should be regarded as an employee or independent contractor and [] each
case must be considered on its own facts. La Grande v. B&L Servs., Inc., 432
So.2d 1364, 1366 (Fla. 1st DCA 1983); see Magarian v. S. Fruit Distrib., 1 So.2d
858, 861 (Fla. 1941); 4139 Mgmt. Inc. v. Dept of Labor & Empt, 763 So.2d 514,
517 (Fla. 5th DCA 2000). In order to be legally held to be an employee, it is not
necessary to satisfy all the Restatement factors; instead the courts consider the
factors and weigh their importance. See Magarian, 1 So.2d at 861.
Moreover, similar cases that are currently pending (which address the
question of whether Uber drivers are employees or independent contractors) shed
light on the issue before this Court. In California, which uses a test that has
practically identical factors to the Restatement test used in Florida, see S.G.
Borello & Sons, Inc. v. Dept of Indus. Relations, 48 Cal.3d 341 (1989), the
agency charged with enforcement of California employment laws, the California
Labor Commission, recently concluded that an Uber driver was an employee, not
an independent contractor. See Berwick v. Uber Technologies, Inc., No. 11-46739
EK (Cal. Lab. Comm. June 3, 2015) (R.340-351).

Further, the California

Employment Development Department (EDD) likewise recently determined that

an Uber driver was an employee and awarded him unemployment insurance

Restatement (Second) of Agency 220 (1958).

13

benefits. (R.531).

Similarly, even more recently the California Unemployment

Insurance Appeals Board affirmed another decision of the California EDD that an
Uber driver was an employee and entitled to unemployment insurance benefits.
(R.605-615).

The California Unemployment Insurance Appeals Board also

affirmed a similar decision that a Lyft driver (Uber's competitor) was an employee
and entitled to unemployment insurance benefits. (R.617-624).
In addition to these agency decisions, a private class action is currently
underway in federal court in California seeking to establish that Uber drivers are
employees, not independent contractors, and thus entitled to wage law benefits. In
that case, the court denied Ubers motion for summary judgment in which Uber
argued that the drivers could not prove that they are employees of Uber. See
OConnor v. Uber Technologies, Inc., 2015 WL 1069092 (N.D. Cal. Mar. 11,
2015) (R.352-378). While the court determined that the issue would ultimately be
decided by a jury, the decision strongly suggests that many of these legal factors
point toward the drivers being employees.
Notably as well, the U.S. Department of Labor (DOL) recently issued an
Administrative Interpretation, addressing the test for determining employee status
under the federal Fair Labor Standards Act, 29 U.S.C. 201, et seq. That multifactor test, which is referred to as an economic realities test, is itself very similar
to the Restatement factors. In discussing these various factors (most of which are
14

the same that apply here), the DOL stressed that most workers are employees.
See Administrators Interpretation No. 2015-1, Wage and Hour Division (Dept
of Labor July 15, 2015); (R.380), (R.379-393).
As such, this Court should reverse the DEO's Final Order and should
reinstate the Department of Revenues (DOR) determination that Appellant was
an employee of Uber, and thus grant Appellants request to receive Reemployment
Assistance. Support for this conclusion is discussed below.

15

ARGUMENT
A.

Argument on the Merits; Appellant was an Employee of Uber

Whether examining each of the independent contractor factors one-by-one,

or assessing the facts as a whole, the evidence clearly weighs in favor of finding
that Appellant is properly classified as an employee of Uber. Appellant was
closely controlled by Uber, with every move monitored and evaluated. Appellant
could be fired by Uber (or deactivated, as Uber calls it) if, in Ubers discretion, it
was not satisfied with his performance. Ubers relative investment in equipment
and technology far outweighed Appellants.

Appellant was not considered a

skilled laborer had no previous experience or professional driving certifications.

Appellant did not operate an independent business that sold his services to
different companies, but instead provided services to Uber and its customers.
Appellant intended to have a long-term employment relationship with Uber, as
many drivers have had. Lastly, as the DOR recognized, workers like Appellant are
integral to Ubers business; without them, Uber would have no service to provide to
its customers. (MT: TR.327:4-7); see OConnor, 2015 WL 1069092, *7. Ubers
argument that its drivers are independent contractors because they have the ability
to choose their hours and provide their own vehicles does not make them
independent contractors. Clearly, employees can have flexible schedules, drive
their own vehicles, and work part time. Moreover, even though entrepreneurial
16

opportunity is not a factor to consider under the Florida Restatement test for
independent contractor misclassification, Appellant had no real for profit and loss
(in order to make money, Appellant simply needed to work more hours or work
during the times and locations that Uber incentive its drivers with surge pricing or
guaranteed hourly rates) and Appellant was not able to set the rate of pay.
As explained below, the weight of the evidence shows that drivers, like
Appellant, should be properly classified as employees of Uber.
a. Control Over the Work
It is well established that the main test in determining the existence of an
employer-employee relationship is whether the employer has direction and control
over the employee. Verchick v. Hecht Invs., Ltd., 924 So.2d 944, 946 (Fla. 3d
DCA 2006) rev. denied, Bocelli v. Hecht Invs., Ltd., 935 So.2d 1 (Fla. 2006)
(citations omitted). The right to control the means used to accomplish work
generally points towards the existence of an employment relationship. Harper ex
rel. Daley v. Toler, 884 So.2d 1124, 1131 (Fla. 2d DCA 2004) ; 4139 Mgmt. Inc.,
763 So.2d at 517; Natl Sur. Corp. v. Windham, 74 So.2d 549, 550 (Fla. 1954).
Here, Uber maintains control over its drivers work.
In order to work for Uber, drivers must begin by filling out an online
application on Ubers website. Next, drivers must pass a background check, watch
several training videos and demonstrate that their car meets Ubers standards
17

before they are permitted to access Ubers mobile phone software application.
(R.395) (As part of our initial review process, we inspect all potential uber
vehicles to make sure they meet our high quality standards). Here, Appellant was
required to have a car that was ten model years old, or newer. (R.70). Notably,
although Uber contends that its drivers can hire other drivers, the (Unsigned)
Raiser Software Sublicense & Online Services Agreement (Services Agreement)
states that drivers are forbidden from sharing their Driver ID or software with
anyone else. (R.74). Thus, drivers must obtain Ubers approval for any drivers they
hire, who must themselves apply to Uber, pass its background check, and obtain
their own account number. Berwick v. Uber Technologies, Inc., Case No. 1146739 EK, *9 (Cal. Lab. Commn Jun. 3rd, 2015) (R.348) (R.340-351). As the
Ninth Circuit held in Alexander v. FedEx Ground Package Sys., Inc., 765 F.3d
981, 994 (9th Cir. 2014), policies that require a driver to obtain the companys
approval before allowing the driver to hire their own employees, is indicative of
control and supervision. See also Carlson v. FedEx Ground Package Sys., Inc.,
787 F.3d 1313, 1321 (11th Cir. 2015); Ruiz v. Affinity Logistics Corp., 754 F.3d
1093, 1102-03 (9th Cir. 2014) (While the district court found that approval was
largely based upon neutral factors, such as background checks required under
federal regulations, it is still true that the drivers did not have an unrestricted right

18

to choose these persons, which is an important right that would normally inure to a
self-employed contractor) (internal quotations and citation omitted).
Uber transmits frequent communications to its drivers reminding them of the
professionalism and service that is expected of them. (DM: TR.256:8-24 258:16); see (R.394) (vehicles should be clean and kept free of odors that may disturb a
client); (R.402) (While at the Miami International Airport, Uber instructs its
drivers to [k]eep your Uber phone off your windshield put it down in your
cupholder in order to avoid tickets); (R.408) (You should accept at least 80% of
trip requests to retain your account status); (R.405) (call or text the rider as soon
as you have arrived); (R.472) (We suggest that drivers wait for users for at least
5 minutes after arriving at the trip starting point). Although Uber contends that
these communications are mere suggestions, these suggestions are actually
evidence of control, given that, Uber monitors its drivers compliance with its
directives through its customer feedback and star rating system. OConnor, 2015
WL 1069092, *13; (R.70-71).
Moreover, although Uber argues that it is not the company, but instead,
customers who are evaluating the drivers performance through Ubers rating
system, this argument does not detract from the fact that it is Uber that has decided
how to use customer feedback to evaluate its drivers and terminate them if
necessary.

Indeed, all companies that provide services to customers have an

19

interest in evaluating their workers performances based on customer satisfaction.

It is Uber, the company, that collects the customer ratings and decides how to use
them in determining which drivers to employ and which to terminate. Indeed, the
recent DOL Administrators Interpretation explains that although [s]ome
employers assert that the control that they exercise over workers is due to the
nature of their business, regulatory requirements, or the desire to ensure that their
customers are satisfied. However, control exercised over a worker, even for any or
all of these reasons, still indicates that the worker is an employee. (R.392) (DOL
Administrators Interpretation). Similarly, in Scantland v. Jeffry Knight, Inc., 721
F.3d 1308, 1316 (11th Cir. 2013), the Eleventh Circuit noted that the reason an
employer implements a monitoring system is irrelevant. There, the employer
argued that its scheduling and quality control measures were necessary due to the
nature of its cable installation business, but the court rejected that argument, stating
that [i]f the nature of a business requires a company to exert control over workers
to the extent that [the employer] has allegedly done, then that company most hire
employees, not independent contractors. Id.
Further, Uber maintains control over the level of compensation its drivers
receive. Uber sets the fares that passengers pay and the percentage of each fare
that drivers receive. As the Service Fee Schedule explains, Uber also retains the
power to unilaterally change the rates that drivers are paid, as well as the
20

commission that Uber takes, at any time. (R.430). Similarly, Uber exercises its
discretion by unilaterally determining the cleaning fee each driver should receive
in the event their vehicle is damaged by a rider. See (R.463). As Appellants
testimony established, rather than assign a specific monetary figure to all messes,
or messes that fall within a particular category, Uber reimburses its drivers for
damage at varying rates based on its determination of the appropriate
reimbursement. (DM: TR.228:8-10). For instance, Appellant was given $150 to
clean his vehicle after a rider spilled meatballs on his seat and only $50 to clean up
soda. (DM: TR.229: 2-5); (DM: TR.231:2-4). The amount of money that Uber
provides often determines how well the drivers cars can be cleaned (and thus how
passengers may rate them in the future).
While it is true that Uber does not control its drivers schedules, this fact
does not make the drivers independent contractors. See OConnor, 2015 WL
1069092, *14; Harrell v. Diamond A Entmt, Inc., 992 F.Supp. 1343, 1348 (M.D.
Fla. 1997) (exotic dancers who set their own schedules were employees of the
nightclub); Air Couriers Intl v. Empt Dev. Dept, 150 Cal.App.4th 923, 926
(courier drivers who set their own work schedule were employees as a matter of
law); JHK Enter. v. Dept of Indus. Relations, 142 Cal.App.4th 1046, 1051
(delivery drivers were employees even though they were permitted to set their own
schedules); Conley v. Oliver & Co., 721 A.2d 1007, 1009-10 (N.J. Super. Ct. App.
21

Div. 1998) (insurance adjuster who maintained his own schedule was an employee
rather than an independent contractor); Matter of BKU Enter., Inc., 513 N.W.2d
382, 382 (N.D. 1994) (vacuum cleaner dealers who set their own schedules were
employees of distributor). As the OConnor court noted [t]he fact that some
drivers are only on-duty irregularly says little about the level of control Uber can
exercise over them when they do report to work.

2015 WL 1069092, *14.

Rather, [t]he more relevant inquiry is how much control Uber has over its drivers
while they are on duty for Uber. Id.
Finally, the fact that Uber retains the right to terminate its drivers in its
discretion is a significant indicator of control. See Cantor, 184 So.2d at 174
([t]he power to fire is the power to control) (citations omitted). Uber maintains
full discretion to terminate its drivers at any time, for any reason. (R.75-76).
Moreover, Uber has asserted that [t]he Company reserves the right to withhold or
revoke its approval and authorization of any Driver at any time, in its sole and
unreviewable discretion within the terms of its own (Unsigned) contract. (R.74).
For instance, Appellant was terminated without any allegation of a breach of
contract (and no explanation at all in writing). It is readily apparent that Ubers
policy and practice of terminating its drivers, with or without cause, is consistent
with the concept of at-will employment.

22

b. Distinct Occupation or Business

Here, it is clear that drivers operate within the ordinary course of Ubers
business because, as the DOR and the OConnor court have recognized, Uber
simply would not be a viable business entity without its drivers. OConnor, 2015
WL 1069092, *7; see (MT: TR.327:4-7). Further, because riders are not permitted
to request specific drivers, and drivers are prohibited from setting up future rides
with customers obtained through Uber, drivers are limited to obtaining clients
through Ubers software platform at random. (MG: TR.173:3-17); (R.426) see
also (R.398) "...if a driver blatantly tries to "steal" clients from Uber by offering
services outside the Uber system, this is reason for [termination] removal". As
such, Uber drivers cannot build their own client base, and cannot be said to be
engaged in their own independent business or trade. See Adams v. Dept of Labor
& Empt Sec., Div. of Unemployment Comp., 458 So.2d 1161, 1162 (Fla. 1st
DCA 1984) (fact that workers had no control over which customers they were
assigned to weighed in favor of finding that cleaners were employees). Further,
drivers are limited to obtaining customers through Uber while they are signed into
the mobile phone application. (R.69) ([D]uring the time you are actively signed
into the Software, you shall perform transportation services only for Requests

23

received by you via the Software.). 2 Drivers are also prohibited display[ing] on
[their] vehicle any removable insignia provided by third-party transportation
providers, other lead generation providers, or similar. (R.69). Such requirements
substantially impair drivers ability to create an independent business.
Moreover, the Appellant never drove professionally prior to working for
Uber and, like many other drivers, has never operated a transportation business
outside of his work for Uber. (DM: TR.250:11-14). Thus, drivers, like Appellant,
perform an integral service for Uber, and must be viewed as operating within,
rather than separate from, Ubers business.
c. Whether the Work is Usually Done Under the Direction of the
Employer or by a Specialist Without Supervision
Uber uses its star rating system (under which riders have the option to
provide a numerical rating and comments to describe their experience on a specific
ride) as means to monitor drivers adherence to its standards.

See (DM:

TR.299:18-21). 3 As the (Unsigned) Services Agreement makes clear, Uber uses

Although Matthew Gore testified for Uber that drivers are permitted to use
Ubers software at the same time as other mobile phone applications (i.e. Lyft or
Sidecar) at all times, other than when they are giving a ride, the (unsigned)
contract indicates that drivers are subjected to this ban at all times that they are
using the Uber application. See (MG: TR.111:12-24 112: 1-10); (R.69).
3

In addition to Ubers star rating system, riders have the option to leave
feedback. A note on Ubers website states: FEEDBACK MATTERS. Drivers
not only meet Ubers standards, they meet your standards. After your trip, you can
24

its star rating system to issue warnings, discipline or terminate drivers. (R.70-71)
(Transportation Providers with low ratings may be limited in their right to accept
Requests.); see OConnor, 2015 WL 1069092, *13. Under this system, Uber
driversare monitored by Uber customers (for Ubers benefit, as Uber uses the
customer rankings to make decisions regarding which drivers to fire) during each
and every ride they give, and Ubers application data can similarly be used to
constantly monitor certain aspects of a drivers behavior. Id., *14. This level of
monitoring, where drivers are potentially observable at all times, arguably gives
Uber a tremendous amount of control over the manner and means of its drivers
performance. Id.4
Further, Ubers monitoring system, coupled with its unilateral discretion to
terminate its drivers at will is extremely strong evidence of the control that Uber
holds over its drivers. As with any employee, drivers who know that Uber has the
rate your experience and leave additional feedback about your driver. (R.474).
Uber passes on this feedback to its drivers.
4

In OConnor, the court compared the monitoring system used by Uber to the
level of monitoring that FedEx exercised over its delivery drivers. OConnor,
2015 WL 1069092, *14; see also Alexander, 765 F.3d at 985 (holding that
delivery drivers who were subjected to quarterly ride-alongs by FedEx
management in order to critique minute aspects of service were employees as a
matter of law). The OConnor court noted that, because Uber drivers were
monitored during each ride (as opposed to four pre-arranged times each year),
viewing the evidence in the light most favorable to the [Uber drivers], it appears
they are monitored more pervasively than the drivers in Alexander. OConnor,
2015 WL 1069092, *14.
25

power to fire them at any time, for any reason, will be motivated to act in
accordance with their employers directives in order to avoid being terminated.
See Cotter v. Lyft, Inc., 60 F.Supp.3d 1067, 1079 (N.D. Cal. 2015); see also
Malloy v. Fong, 37 Cal.2d 356, 370 (1951) (The power of the principle to
terminate the services of the agent gives him the means of controlling the agents
activities). As the Appellants testimony made clear, knowledge that Uber could
terminate him at any time caused him to avail himself to Ubers instructions on
how to increase his star ratings in order to avoid being fired. (DM: TR.267:5-24
268:1-12).
Although Uber may argue that it uses an automated system that terminates
all drivers that fall below the minimum star rating that is set by the general
manager of each geographic market, it is clear that Uber maintains the right to use
discretion in deciding which drivers it terminates and which drivers it allows a
second chance. See (MG: TR.125:23-24 126:1-7); (MG: TR.154:19-24 155:115). For instance, an article on the Uber Miami website states that [i]n the event
that your account is deactivated, we can recommend a driver improvement course
to help you learn from other highly rated drivers. If we see that you complete this
class, we will consider your account for re-activation (emphasis added). (R.428).
Moreover, [i]f your rating over the most recent 100 trips is below a 4.6, your
account may be at risk of deactivation (emphasis added). (R.428). This article
26

demonstrates that Uber uses its discretion in determining when to deactivate

drivers, as when deciding which of its drivers deserve a second chance. Further, as
Matthew Gore stated, Uber can, in its discretion, raise and lower its minimum star
rating system in order to ensure that there is an ideal balance between drivers and
riders in each geographic market. (MG: TR.155:7-8). As such, Uber could lower
the minimum star rating to retain drivers it would have otherwise terminated, or
raise the minimum star rating in order to shed some of the drivers.

(MG:

TR.155:16-21); (MG: TR.155:20-24 165:1-3).

Thus, because Uber uses real-time data from its star rating and rider
feedback systems to monitor drivers performances, it is more than evident that
Uber drivers work under the direction and supervision of their employer.
d. The Skill Required in the Occupation
We generally understand an independent contractor to be someone with
special skill such as plumbers, electricians, or carpenters. Cotter, 60 F.Supp.3d
at 1069. Because Uber drivers do not need specialized skills to work as drivers,
this factor weighs in favor of employee status.

Uber maintains no formal

education requirements, nor does it require drivers to have professional driving

experience.

(MG: TR.150:8-23); (R.69).

Rather, the sole skill drivers must

possess is the ability to obtain a standard, non-commercial, drivers license.

(R.69); see also Cotter, 60 F.Supp.3d at 1069 (Lyft drivers use no special skills
27

when they give rides); Pena v. Handy Wash, Inc., 28 F.Supp.3d 1289, 1302
(S.D. Fla. 2014) (paratransit drivers position did not require any special skills);
Gustafson v. Bell Atlantic Corp., 171 F.Supp.2d 311, 326 (S.D.N.Y. 2001)
(There is no genuine dispute that plaintiffs duties as a chauffeur required no
specialized skill or initiative, suggesting that plaintiff was an employee rather than
an independent contractor); Justice v. Belford Trucking Co., Inc., 272 So.2d 131,
136 (Fla. 1972) (interstate truck driver who was found to be an employee for the
purposes of workmens compensation did not possess any particular skill or
specialty other than that of an ordinary truck driver). Given that drivers, like
Appellant, do not need any specialized skills or education in order to become an
Uber driver, this factor weighs in favor of employee status.
e. Whether the Employee Supplies the Instrumentalities, Tools, & Place
of Work
Here, in order to carry out their work, Uber drivers, such as Appellant, use
their personal vehicles and pay for their own fuel and some, but not all, insurance.5
Importantly, courts have recognized that [a]lthough the drivers investment of a
vehicle is no small matter, that investment is somewhat diluted when one considers
that the vehicle is also used by most drivers for personal purposes. Herman v.

Uber provides its drivers with a minimum level of commercial automobile

liability insurance. (R.70).
28

Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 229 at 304 (5th Cir. 1998);
see also Lewis v. ASAP Land Express, Inc., 554 F.Supp.2d 1217, 1224 (D. Kan.
2008). Thus, in weighing this factor, courts consider the relative investment in
equipment and materials expended by each party. See Herman 161 F.3d at 304;
Sakacsi v. Quicksilver Delivery Sys., Inc., 2007 WL 4218984, *7 (M.D. Fla. Nov.
28, 2007); see (R.387) DOL Administrators Guidance, (Even if the worker has
made an investment, it should not be considered in isolation; it is the relative
investments that matter).
Here, Ubers investment in the development of its software and mobile
phone software application is far greater than the investment of its drivers. See
Parrilla v. Allcom Const. & Installation Servs., LLC, 2009 WL 2868432, *4
(M.D. Fla. Aug. 31, 2009) (relative investment weighed in favor of employee
status where cable installers use of personal vehicle and $1,000 annual investment
in equipment was less than employers investment in equipment); Sakacsi, 2007
WL 4218984, *6 (holding relative investment weighed in favor of employee status
where many courier drivers used their own personal cars to make [] deliveries
and courier services cost for purchasing and maintaining its software and system
far outweighed the costs to its drivers); Shultz v. Mistletoe Express Serv., Inc.,
434 F.2d 1267, 1270 (10th Cir. 1970) (delivery drivers were employees where
their relative investment in trucks was much lower than employers investment in
29

buildings, offices, docks, equipment and supplies); Campos v. Zopounidis, 2011

WL 2971298, *7 (D. Conn. July 20, 2011) (finding that delivery driver was an
employee where his relative investment in his personal vehicle and automotive
expenses paled in comparison to the employers substantial expenses of the
business, such as rent, utilities, supplies, vehicle signage, payroll, tax, or other
business expenses); Clincy v. Galardi S. Enterprises, Inc., 808 F.Supp.2d 1326,
1346-47 (N.D. Ga. 2011) (where dancers $50,000 annual investment in her work
did not exceed the nightclubs investment in its business, the court held that the
parties relative investment weighed in favor of employee status).
Because Ubers relative investment in its software and mobile phone
application is clearly far more substantial than the drivers provision of their
vehicles, fuel and insurance, this factor weighs in favor of employee status.
f. The Length of Time for Which the Person is Employed
A true independent contractor relationship exists for a finite time of
service. Gonzalez v. Workers Comp. Appeals Bd., 46 Cal.App.4th 1584, 1594
(1996). In contrast, when a worker is hired for an indefinite period of time, an
employment relationship is implied. See Magarian, 1 So.2d at 779 (contract that
provided for an ongoing relationship contributed to finding that worker was an
employee); Parrilla, 2009 WL 2868432, *5 (cable and internet installers ongoing
relationship, which lasted almost one and a half years, contributed to a finding that
30

she was an employee); Berrocal v. Moody Petroleum, Inc., 2009 WL 455448, *8

(S.D. Fla. Feb. 22, 2009) (contract that provided for an indefinite period of work
weighed in favor of finding that cafeteria worker was an employee).
Here, Ubers (unsigned) Services Agreement creates an ongoing
relationship between Uber and its drivers that lasts until one of the parties
terminates the relationship. (R.75-76).

The Appellant drove for Uber for

approximately five months, which is not an extremely short amount of time, and is
time that would not be atypical for an employee. Many Uber drivers work for
longer periods of time, and many for shorter, and it would not make sense to
classify some drivers as employees and others as independent contractors based
solely on when the driver decided to quit (or was fired). See Sales v. Bailey, 2014
WL 3897726, *11 (N.D. Miss. Aug. 8, 2014) (duration of relationship weighed in
favor of employee status where some plaintiffs worked for shorter periods but had
sought an indefinite employment relationship).
Moreover, as Appellants testimony makes clear, his relationship with Uber
was ongoing and Appellant had no intention of ending that relationship prior to his
unjust termination. See (DM: TR.225:12-15); see also Solis v. Intl Detective &
Protective Serv., Ltd., 819 F.Supp.2d 740, 752 (N.D. Ill. 2011) (finding evidence
weighing toward employee status where the facts indicated that the parties
contemplated a long-term relationship).
31

Given that Uber drivers are hired to work for an indefinite, rather than fixed,
period of time, this factor also weighs in favor of employee status.
g. Method of Payment, Whether by the Time or by the Job
Where a worker is compensated at regular intervals even if not based on an
hourly wage an employer-employee relationship is implied. See Matter of
Polinsky, 163 A.D.2d 684, 684-85 (N.Y. App. Div. 1990) (dentists who were paid a
percentage of the cost of their services on a weekly basis were employees); see
also Tower Ins. Co. of N.Y. v. Rainbow Granite & Marble, Inc., 2010 WL
3604998, *1 (S.D. Fla. Sept. 13, 2010) (delivery driver who was paid every two
weeks was an employee of the granite company); Orcutt v. Envtl. Technologies,
Inc., 432 So.2d 701, 702 (Fla. 1st DCA 1983) (worker paid hourly wage every two
weeks was an employee). Here, Uber pays its drivers on a weekly basis (rather
than after each ride) and uses direct deposit to remit payment to its drivers. (MG:
TR.121:2-5); (R.430).

Ubers method of payment (which uses a formula that

accounts for time as well as distance) looks much more similar to wage payments
than to piece-rate compensation that is traditionally associated with independent
contractor relationships.
Further, Uber frequently advertises or guarantees hourly rates to its drivers.
(MG: TR.139:1-24 140:1-2); (R.431-432); (R.433); (R.476).

32

And, even when the hourly guarantees are not in place, Uber drivers are not
exactly paid a flat sum on a per job basis. Instead, drivers are paid based on a
formula created by Uber, which takes account of the amount of time they are
driving as well as the distance and speed. (R.430).
Moreover, [i]n an independent contractor relationship, the independent
contractor normally has at least an equal say in the rate to be charged for particular
work. Solis v. A+ Nursetemps, Inc., 2013 WL 1395863, *6 (M.D. Fla. Apr. 5,
2013).

In contrast, compensation methods that involve fixed rates set by an

employer are indicative of an employer-employee relationship. See Solis, 2013

WL 1395863, *6 (nurses paid fixed rates for each shift or assignment completed
were employees, rather than independent contractors); Univ. Dental Health Ctr.,
Inc. v. Agency for Workforce Innovation, 89 So.3d 1139, 1141 (Fla. 4th DCA
2012) (dentist whose fees were unilaterally determined by his employer was an
employee); Adams, 458 So.2d at 1162 (cleaners paid 45% of gross sales, less 10%
equipment rental fee, were employees of cleaning service).
Here, Uber unilaterally sets the fares it charges riders (as well as the share of
these fares that it takes and that it remits to the drivers) and retains the discretion to
change its service fees at any time. (MG: TR.120:1-12); (R.430); see OConnor,

33

2015 WL 1069092, *7. 6

Further, Uber also retains the discretion to adjust

individual riders payments as it sees fit. (MG: TR.120:1-12); (R.71) (in the
Companys sole discretion, a Users cancellation fee may be waived, in which case
you will have no entitlement to any such fee); see (R.475) (demonstrating that
Uber adjusts riders fares in response to complaints of inefficient routes without
consulting the driver prior to making the adjustment). Given that riders submit
credit card payments directly to Uber through its mobile phone application, drivers
do not possess the same ability to set fares or adjust individual riders payments. 7
Therefore, this factor also weighs in favor of employee status.

Ubers (Unsigned) Services Agreement states that you and the Company
shall always have the right to negotiate a Service Fee different from the prearranged fee. (R.71). However, as Matthew Gore conceded during the hearing, he
is unaware of any Uber driver who has been successful in negotiating an
alternative fee arrangement with Uber. Thus, drivers have no functional ability to
negotiate their fares, notwithstanding the language of the (unsigned) contract. As
the Solis court demonstrates, when the employer contends that an individual
worker may negotiate a fee other than the fixed rate, but still retains the upper
hand in determining the fee, this factor still weighs in favor of employee status.
2013 WL 1395863, *6.
7

Uber may argue that drivers possess the ability to set fares because they are
able to charge riders less by turning off the application or pressing the end-trip
button before reaching the riders destination. However, it would make no sense to
conclude that Uber drivers can set their own rates when their only option outside of
the rates set by Uber would be to work for free. Moreover, the court in Bowdoin v.
Anchor Cab 643 So.2d 42,44 (Fla. 1st DCA 1994) already rejected this argument
when it held that cab drivers who were permitted to charge less than (but not more
than) the rate set by Anchor Cab were employees. 643 So.2d 42,44 (Fla. 1st DCA
1994). There, the court found that [b]y regulating the maximum rates charged by
34

h. Whether or Not the Work is Part of the Regular Business of the

Employer
Drivers are considered a regular part of the principals business when the
principal cannot be in business without them. Ruiz, 754 F.3d at 1105 (noting that
the drivers were an essential part of the principals home delivery business); see
also Univ. Dental Health Ctr., Inc., 89 So.3d at 1141 (holding that dentist was an
employee where the dentists services were part of University Dentals regular
business); Cantor, 184 So.2d at 174 (finding that worker who assisted wholesale
grocery customers in carrying groceries was an employee where his duties were
part of the regular business of his employer); JHK Enter., 142 Cal.App.4th at
1054 (finding an employer-employee relationship where the [courier drivers]
duties are an integral part of the operation); Yellow Cab Coop., Inc. v. Workers
Comp. Appeals Bd., 226 Cal.App.3d 1288, 1294 (Cal. Ct. App. 1991) (holding
drivers were employees where [t]he drivers, as active instruments of that
enterprise, provide an indispensable service to Yellow; the enterprise could no
more survive without them than it could without working cabs).
In order to avoid classifying its drivers as employees, Uber argues that the
drivers are not part of its regular business by arguing that the company is in the
technology industry (as opposed to the transportation industry). As such, Uber
its drivers, Anchor Cab exercised extensive control as to how the cabbies
performed their work. Id.
35

contends that its drivers do not provide services within the regular course of Ubers
business and, therefore, cannot be its employees. However, courts have recognized
that efforts by employers to use this type of wordplay to justify an independent
contractor relationship cannot be tolerated. Hicks v. Kemp, 79 So.2d 696, 699
(Fla. 1955); see also Schwann v. FedEx Ground Package Sys., Inc., 2013 WL
3353776, *5 (D. Mass. July 3, 2013) opinion withdrawn in part, 2015 WL
501512 (D. Mass. Feb. 5, 2015) (rejecting FedExs characterization of its business
as an information and logistics network and noting that FedEx cannot assert that it
does not provide delivery services by simply refusing to recognize its delivery
drivers as employees).

Therefore, it is Ubers actual practices, not its

characterization of those practices, that are important in determining that Ubers

drivers perform services for it, and those services are in Ubers usual course of
business.
Uber contends it is a technology company that serves as a mere intermediary
that connects riders and drivers, for a fee, through its mobile phone application.
See (R.67). However, as has been recognized by the federal court overseeing the
class action litigation, as well as other factfinders, this argument is simply without
merit. In OConnor, the court issued an order denying Ubers motion for summary
judgment, in which Uber argued that the drivers could not prove that they are
employees of Uber. 2015 WL 1069092, *15. In its opinion, the court rejected
36

Ubers argument that it was merely a technology company, and instead found that
Uber was deeply entrenched in the transportation industry. Id., *6. Based on this
finding, the OConnor court held as a matter of law, that Ubers drivers
render service to Uber, and thus are Ubers presumptive employees.
[emphases added] Id., *9. A number of recent decisions have reached similar
conclusions finding that Uber, and similar on demand ridesharing services are
in fact transportation companies.8
While Uber does, in fact, engineer software, the OConnor court noted that
its software is merely one instrumentality used in the context of its larger
business, namely, transportation. 2015 WL 1069092, *6. The OConnor court
explained:
Uber is no more a technology company than Yellow Cab is a technology
company because it uses CB radios to dispatch taxi cabs, John Deere is a
technology company because it uses computers and robots to manufacture
lawn mowers, or Domino Sugar is a technology company because it uses
modern irrigation techniques to grow its sugar cane. Indeed, very few (if
any) firms are not technology companies if one focuses solely on how they
create or distribute their products. If, however, the focus is on the substance
of what the firm actually does (e.g., sells cab rides, lawn mowers, or sugar),
it is clear that Uber is most certainly a transportation company, albeit a
technologically sophisticated one.
8

In addition to the agency decisions cited herein, the California Public

Utilities Commission has determined that Uber is a Transportation Network
Company (TNC) which it defines as an organization operating in California
that provides prearranged transportation services for compensation. (R.399).
Additionally, a California federal court also recognized that Lyft, one of Ubers
competitors, is not merely a technology company, but like Uber, a car service.
Cotter, 60 F.Supp.3d at 1078.
37

Id.
Evidence that Uber is a transportation company, and that its drivers provide
an integral service, can be seen in Ubers founding tagline, Everyones Private
Driver, as well as much of its advertising. (R.394); (R.439) (Were committed
to making Uber the most affordable transportation option for the community); see
(MG: TR.149:1-2). Moreover, Uber has even referred to itself as an On-Demand
Car Service. (R.394); see (R.474) (Your Ride, On Demand).
Further, it is clear from Ubers operating mechanisms that Uber is in the
transportation industry. For instance, Uber does not sell its software in the matter
of a typical distributor. OConnor, 2015 WL 1069092, *3. This is because Uber
is deeply involved in marketing its transportation services, qualifying and selecting
drivers, regulating and monitoring their performance, disciplining (or terminating)
those who fail to meet standards, and setting prices. Id. Notably, Ubers mobile
phone software application can be downloaded for free, so Uber only makes
money if its drivers actually transport passengers. Id., *7. For all of these
reasons, Uber is a transportation company, notwithstanding its attempts to argue
otherwise.
Given that Uber is in the business of providing rides to customers, and it
derives its income by taking a percentage of the cost of each ride, the DOR was
correct in determining that Uber drivers are an integral part of Ubers business.
38

(MT: TR.327:4-7); see OConnor, 2014 WL 1069092, *7, 9 (noting that Uber only
generates revenue if its drivers give rides and finding as a matter of law that drivers
perform a service for Uber). As such, this factor weighs strongly in favor of an
employer-employee relationship.
i. Whether or Not the Parties Believe they are Creating an Independent
Contractor Relationship
[A] statement in an agreement that the existing relationship is that of an
independent contractor is not dispositive of the issue. Lee v. Am. Family Life
Assurance Co. of Columbus, 431 So.2d 249, 259 (Fla. 1st DCA 1983); see also
Adams, 458 So.2d at 1163 (finding that cleaners were employees of carpet and
cleaning service notwithstanding language in the contract that indicated an
independent contractor relationship). While Uber argues that the (unsigned)
Services Agreement establishes the drivers as independent contractors, courts have
not given much weight to this factor based simply on the terms of the contract that
were dictated to the worker. Moreover, many courts have held that that the parties
subjective belief regarding their relationship should be ignored where their actual
conduct establishes a different relationship. Ruiz, 754 F.3d at 1105; see Cantor,
184 So.2d at 174 (status depends not on the statements of the parties but upon all
of the circumstances of their dealings with each other); Grant v. Woods, 71
Cal.App.3d 647, 654 (Cal. Ct. App. 1977) (the belief of the parties as to the legal
39

effect of their relationship is not controlling if as a matter of law a different

relationship exists); see also Magarian, 1 So.2d at 861 (The parties evidently
thought they did not stand in the relationship of master and servant but if, as a
matter of law, they did so stand, their mistake in this regard would not change the
status).
Here, Appellant may have signed up to drive for Uber based in part on its
marketing that drivers can control their schedules and not be under anyone elses
control, but it became clear once Appellant started driving for Uber and was
terminated in Ubers discretion that Appellant most certainly was under Ubers
control.

Thus, notwithstanding the language of Ubers (unsigned) Services

Agreement, the actual conduct of the parties clearly demonstrates an employeremployee relationship.
j. Whether the Principal is or is not in the Business
As discussed, it is plainly evident that Uber is a transportation company.
Although Uber often tries to contend that it is a technology company, and that its
software serves as a mere intermediary between drivers and riders, Ubers
references to transportation and being an on-demand car service in its advertising,
as well as its high level of involvement in hiring, disciplining, and terminating
drivers demonstrates otherwise. See OConnor, 2015 WL 1069092, *3. In fact,
Uber is so involved in transportation that it has even offered to provide legal
40

assistance and reimburse drivers for the cost of tickets received by drivers while
giving rides at the Miami International Airport. (R.402); (MG: TR.165:9-13).
Moreover, the fact that Uber derives its income by retaining a percentage of each
ride that its drivers give makes it immensely clear that Uber is in the transportation
business. OConnor, 2015 WL 1069092, *7 (Ubers revenues do not depend
on the distribution of its software, but on the generation of rides by its
drivers) [emphases added].

As such, this factor cuts strongly in favor of

employee status. 9
In further support of the arguments made in this brief the Court is
respectfully directed to the recent decision in O'Connor v. Uber Technologies,

Although Uber argued that Appellant exhibited entrepreneurial motivation

by deciding where and when to drive, this is not a factor to consider under the
Restatement test used by the Florida courts. But, in any event, Appellant was
merely following Ubers advice to increase his efficiency by getting to know his
city and attempting to partake in Ubers incentive structure in order to maximize
his wages. See (DM: TR.220:1-12); (DM TR.263:6-19); (DM: TR.300:24
301:1-19). Employees who react to their employers incentives are not showing
entrepreneurial motivation. Moreover, this endeavor not only benefited the
Appellant, but it also benefited Uber, who receives a percentage of the fare from
each ride that Appellant gave. See (R.430); (MG: TR.170:14-18). As the court in
Usery v. Pilgram Equip. Co., Inc., 527 F.2d 1308, 1314 (5th Cir. 1976) makes
clear, routine work which requires industry and efficiency is not indicative of
independence and nonemployee status.; see also (R.389) (DOL Administrative
Interpretation), (discussing Herman v. Express Sixty-Minutes Delivery Serv., Inc.,
161 F.3d 299, 305 (5th Cir. 1998) (efficiency in performing work is not
indicative of independent contractor status); Hathcock v. Acme Truck Lines,
Inc., 262 F.3d 522, 527 (5th Cir. 2001) (drivers ability to pick his delivery route
and work details does not evince sufficient initiative to allow him to be classified
as an independent contractor as a matter of law).
41

Inc., No. C-13-2826 EMC (N.D. Cal. Sept. 1, 2015) (Doc. 341) (R.698-765), in
which the Northern District of California certified a class action on behalf of
California UberBlack and UberX drivers under Federal Rule of Civil Procedure
23 to address the Plaintiffs' employment classification question and tips claim
under Cal.Lab.Code 351. Id.,*67. (R.764).
The O'Connor court found that "the worker classification claim presents a
common issue capable of classwide adjudication because all (or nearly all) of the
individual elements of the Borello test themselves raise common questions which
will have common answers." Id., *17. (R.714). Given that the Borello test uses
practically identical factors to the Restatement test used in Florida, the decision
supports this Courts determination to apply to Uber drivers in Florida generally.
In addition, the Appellant also directs the Courts attention to the recent press
release issued by the State of Alaska Department of Labor and Workforce
Development (R.695), indicating that the Department has entered an agreement
with Uber to pay into the Alaska Workers' Compensation Benefit Guaranty Fund
and to cease operations in the state unless it classifies its drivers as employees. In
the release, the Alaska Department of Labor states that "Misclassifying employees
allows companies like Uber to avoid paying unemployment insurance, taxes and
workers compensation premiums." [emphasis added].

Also taking a stand to

enforce the correct classification of Uber drivers, The State of Oregon Bureau of
42

Labor and Industries issued a recent advisory opinion concluding that "Uber
drivers are employees". (R.825-828).
B.

Standard of Review

The standard of review that applies to an administrative decision based on a

point of law does not require the same degree of deference as a decision based on a
finding of fact. Section 120.68(7)(d), Florida Statutes, provides that in reviewing
an agency decision based on a point of law, the appellate court must determine
whether the "agency has erroneously interpreted a provision of the law and
[whether] a correct interpretation compels a particular action." The standard of
review of an agency decision based on an issue of law is whether the agency
erroneously interpreted the law and, if so, whether a correct interpretation compels
a particular result. See 120.68(7)(d), Fla. Stat.; Florida Hospital v. Agency for
Health Care Administration, 823 So.2d 844 (Fla. 1st DCA 2002); Parlato v.
Secret Oaks Owners Association, 793 So.2d 1158 (Fla. 1st DCA 2001);
Metropolitan Dade County v. State Department of Environmental Protection,
714 So.2d 512 (Fla. 3d DCA 1998).
This Court is not required to defer to the final order in this case on the issues
of law. The standard of review of legal issues involves more than a determination
whether the issue was correctly decided before the director of the DEO. A De novo
review allows this Court to be free to decide the question of law, without deference
43

to the decision of the DEO, as if this Court had been deciding the question in the
first instance. Although the DEO's decision is presumed to be correct, this Court is
free to decide the legal issue differently without paying deference to the DEO's
view of the law. Appellate courts are not required to defer to trial court on matters
of law. See, Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So.2d 4 (Fla.
3d DCA 1993) (holding that an appellate court is not required to defer to a trial
court's determination of a foreign law). As the court explained in Walter v. Walter,
464 So.2d 538 (Fla. 1985), the correction of an erroneous application of the law
and the determination that the trial court abused its discretion are two separate
appellate functions.

44

CONCLUSION
Drivers, like the Appellant, perform an essential service for Uber. Without
its drivers, Uber would no longer be able to generate revenue, and would cease to
exist. Moreover, it is plainly apparent that Uber exerts considerable control over
the means and manner that drivers carry out their work, and retains the power to
terminate drivers at its discretion. As discussed above from the facts presented in
the record before this Court, and from logical deductions that can be made from the
undisputed facts here, most, if not all, of the Restatement factors cut in favor of
finding an employer-employee relationship.
For these reasons, this Court should reverse the determination that Uber
drivers such as the Appellant are independent contractors, and uphold the original
determination of the Florida Department of Revenue that Uber drivers such as
Appellant are in fact employees of Uber under Florida law, and as such entitled to
Reemployment Assistance benefits.

45

CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing Initial
Brief of the Appellant was mailed via USPS and/or via E-mail to the following this
8th day of March, 2016.
Appellees in House Counsel
Justin Suhr, Esq.
Rasier LLC d/b/a UBER
1455 Market Street, FL 4
San Francisco, CA 94103
Email. suhr@uber.com
Florida Department of Revenue
Attn: Drenea York
4230 Lafayette Street, Suite D
Marianna, FL 32446
Email. YorkD@dor.state.fl.us
Joined Party:
Melissa Ewers
8307 Anglers Point Dr.
Temple Terrace, FL 33637
Email. missewe4@aol.com
Jim Poppell, Esq. General Counsel
Department of Economic Opportunity
107 E. Madison Street
Caldwell Building, MSC 110
Tallahassee, FL 32399
jim.poppell@deo.myflorida.com

Appellees UBER Representative

Littler Mendelson, PC
Attn: Courtney B. Wilson, Esq.
333 SE 2nd Avenue, Ste 2700
Miami, FL 33131
Email. cwilson@littler.com
Florida Department of Revenue
Attn: Dianne Ayers
P.O. Box 6417
Tallahassee, FL 32314
Email. AyersD@dor.state.fl.us
Joined Party:
Michael Hutton
5431 NW CR 125
Lawtey, FL 32058
Craig Thomas, Esquire.
Assistant General Counsel
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, Florida 32399-4128
Craig.Thomas@deo.myflorida.com

/s/ Darrin E. McGillis_____________

Darrin E. McGillis, In Proper Person

46

STATEMENT OF COMPLIANCE WITH RULE 9.210(a)(2)

I HEREBY CERTIFY, that this Initial Brief of the Appellant has been
prepared in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate
Procedure, using 14 point Times New Roman font.

/s/ Darrin E. McGillis_____________

Darrin E. McGillis, In Proper Person

47