Yesterday a federal judge ruled that the employment lawsuit against Uber would be allowed to proceed as a class action potentially encompassing 160,000 drivers. Uber has announced that it will likely appeal the certification ruling. In the company's words, "this is just one step in legal proceedings that may very well play out over several years."
According to Uber, the actual number of drivers that will end up being included in the class action is far fewer than 160,000. As reported yesterday, some drivers cannot be certified because of the specifics of the contracts they signed on to.
Uber driver contracts have varied over the years—some of them contain arbitration clauses, and some versions of those arbitration clauses were ruled as unenforceable by this judge. Furthermore, as Uber points out, drivers who did not contract directly with Uber or registered with Uber as corporations cannot been certified as part of the class.
"There really is no typical driver"
The company estimates that the potential class is actually fewer than 15,000 drivers.
Although this is less than 10 percent of the number used in legal filings, 15,000 is not exactly small. No wonder then that Uber says it "will likely still appeal." In a press release Uber reiterated that "most drivers said they love being their own boss," and again pressed on the idea that "there really is no typical driver," which had been one of its arguments against certification.
Judge Edward Chen's opinion yesterday skewered the "no typical driver" argument. "[T]he named Plaintiffs may all be left-handed and drive Hondas, while numerous class members are right-handed and drive Toyotas. But these differences do not demonstrate that the named Plaintiffs are not typical class representatives under Rule 23."
Claims like "most drivers said they love being their own boss" have, at this stage, somewhat backfired on the company. If Uber gives all or even most of its drivers the flexibility and freedom that the company so often touts, this makes the drivers more similar to each other, and more suitable to being lumped together into a class action. Judge Chen wrote in his opinion that although flexibility in drivers' schedules may ultimately weigh in Uber's favor, "the fact that Uber admits that it exercises a uniform amount of control over its drivers' work schedules (i.e., none) benefits Plaintiffs at the class certification stage."
We contacted attorneys at Lichten & Liss-Riordan who are representing the plaintiffs in this case, and have not yet received a response.For the time being, Uber appears to be ready for a very long fight. In 2011, Uber's lead lawyer, Theodore Boutrous, argued and won a landmark case at the Supreme Court, blocking the certification of a class of 1.5 million female Wal-Mart employees. If Uber does choose to appeal this certification ruling, and once again lose, it might appeal yet again. Certification is just one step in a very long process, and this step by itself might take years.