prior probability

The ride-sharing company Uber has appealed a recent decision of the California Labor Commissioner’s Office declaring a former Uber driver to be an “employee” of the company and not an “independent contractor.” (For more information, here is the actual decision itself, and here is a good second-hand explanation of the ruling.) Why does this ruling matter? Because under the common law doctrine of respondeat superior, an employer is vicariously liable for the negligent acts of its employees, if those acts are committed within the scope of their employment. In plain English, if an Uber driver were to get into a car accident, Uber (and not just the driver) could be legally liable for any injuries resulting from the accident. So, what are the chances that Uber will win this case on appeal? From a legal perspective, the relationship between Uber and its drivers is one of principal-agent, and the answer to the question posed in the title of this post ultimately depends on how much control the principal (Uber) has over its agents (drivers). Courts will consider the following the factors in making this judgment call:

• Is the agent engaged in a distinct occupation or an independently established business?
• Does the principal provide the tools and equipment used in the agent’s work?
• The length of time the agent has been employed by the principal
• The amount of time during the day that the agent works for the principal
• The method of payment, whether by time or by the job

Do these “control factors” point in any particular direction? Hey, your guess is as good as mine …