Gig Workers Employees Win Again

Gig workers won another major victory, this time in the United Kingdom. As discussed in a prior post, courts across the United States are finding that gig workers are “employees” and are not independent contractors. Similar to these recent rulings from courts across the United States, the UK Supreme Court recently issued a ruling holding that gig workers—Uber drivers—are “workers,” and are not “contract workers,” under UK labor laws. See news report here. Uber drivers in the UK will now be entitled to standard employee benefits such as minimum wage, overtime, and paid vacations.

Normally, the Employee Rights lawyers here at Herrmann Law do not write about decisions made by courts in other countries, but this case is notable for several reasons. First, the outcome continues the trend of giving gig workers the rights that are traditionally afforded employees. Lately, gig workers have been winning significant victories. As we wrote recently, a federal court ruled that, under Massachusetts labor laws, gig workers must be classified as employees. See Hogan v. The InStore Group, LLC., Civil Action No. 17-10027 (US Dist. Mass. 2021).

That case was important because it did not involve Uber or Lyft drivers but, rather, gig workers who provided labor for retail stores like assembling displays, counting inventory, and helping with product ordering. With this recent decision from the UK Supreme Court, the trend in favor acknowledging the employment rights of gig workers has become global. While it is true that trends do not win cases, it is also true that judges follow the news and the election results.

The UK Uber decision is also notable in that it has the potential to provide “persuasive” legal authority for judges here in the United States. The UK decision is not controlling for courts here in the United States, but judges routinely cite and rely on cases from other jurisdictions to support their own decisions where a case is deemed “persuasive.” Cases from the highest court in another jurisdiction are often deemed “persuasive.”

Another reason the UK Uber decision is notable is that the court did not rely on the ABC to reach its conclusion. In the US, most gig worker victories have been achieved by using the ABC test. Under the ABC test, a worker must be classified as an “employee” UNLESS three conditions are met:

• Workers are free from control
• Workers are NOT engaged in the core business of company with which they provide service AND
• Workers are in a business that is traditionally considered an independent trade (like a plumber)

Under the ABC test, most gig workers must be classified as “employees” because employers cannot satisfy the ABC standard. More than half the states here in the US use some version of the ABC test to determine worker classification including California, Massachusetts, New Jersey, Connecticut, and Illinois.

But, as noted, the UK Supreme Court did not use the ABC test. They concluded that the Uber drivers should be classified as “employees” based on the more traditional “control test.” According to the court, the relationship between Uber and its drivers was more akin to that of employer and employee for several reasons. First, payment and pay rate was effectively set by Uber and the contract terms of service were issued by Uber without any ability of the drivers to change those contract terms. These are both traditional measures of “employment.” Further, the court cited many examples of the ways in which Uber exercised significant control over how the ride-sharing service was provided. Again, such extensive control over a worker is a traditional measure of “employment.” Taking these facts together, the court held that Uber acted as an “employer” under the traditional legal test.

Again, this is good for gig workers since not every state in the US uses the ABC test. The UK decision can provide some legal support for the argument that gig workers are “employees” even under the traditional “control test.”

Call the Employee Rights Attorneys at Herrmann Law Today

For more information, call the Employee Rights attorneys at Herrmann Law. If you think that your employer has been misclassifying you or has engaged in other violations of your rights as an employee, call us. We are proven, experienced, employee-focused attorneys representing workers across the United States in all types of workplace disputes. Use our Online Contact page or call us at (817) 479-9229.