An advisory opinion released Wednesday by the Oregon Bureau of Labor and Industries reviewed six factors:
- Degree of Control: Whether the worker is running his or her own business or dependent on the employer,
- Relative Investments: Who spends what so the worker can do the job,
- Worker’s Profit and Loss: A worker’s ability to profit or lose money,
- Skills and Initiative: The job’s dependence on business skills (judgment, initiative) beyond technical work skills,
- Permanence: How long the job is expected to last, and
- Work As Integral Part of Business: How critical to a business’ core function is the job.
On all six factors, Labor Commissioner Brad Avakian concluded that an Uber or Lyft drivers appear to be an employee, rather than a contractor.
The opinion concludes:
“These six factors from the economic realities test illustrate how Uber drivers are not operating their own separate businesses with the degree of autonomy one expects with an independent contractor. To the contrary, the rigorous hiring process, the highly controlled directions as to how work is to be performed and at what price, the expectation of long term employment, the insignificant investment of the driver when compared to the massive infrastructure provided by Uber and the integral nature of the driver’s work to the business are all characteristic of an employment relationship.”
Avakian said the rules for Uber and Lyft differ somewhat from what happens with taxi cab drivers, in part because cabbies are exempted from the state minimum wage.
But Uber officials disagree with the Avakian opinion.
In a statement, Uber sais BOLI had only a very brief discussion with an Uber manager and no conversations, the company was aware of, with Uber drivers. Uber contends many of its drivers don’t even work half-time — and they “value the independence and flexibility: the ability to work whenever and wherever they choose.”
Uber called the opinion “full of assertions that are plain wrong.”
For instance, Uber argued nearly all Uber drivers use their own phones — an apparent objection to the opinion’s mention of iPhone Uber, in the “Relative Investments” section. Uber also objected to BOLI’s mention of screening procedures, such as background checks and motor vehicle inspections, arguing those were required by the City of Portland.
Uber also pointed out that several states have evaluated the employee vs. contractor question and come out to the opposite conclusion as BOLI. California labor officials have looked at the issue more than once in individual cases — and have arrived at different conclusions in different cases.
Avakian said he looked into the question at the request of Portland City Council, where licensing Uber and Lyft has led to a task force and hours of policy debates.
Where BOLI and Uber agree is that the opinion is only advisory, and doesn’t dictate how labor officials might rule on an actual complaint. It gives some indication of the how labor officials may look at complaints, but Avakian said complaints will be decided on the specific facts of those cases.
Last month, Brad Avakian declared his candidacy in the race for Oregon Secretary of State.