Optional Uber and Lyft masking puts risk calculus on drivers (1)

Uber Technologies Inc.‘sand Lyft Inc.The decision to end masking requirements after a judge halted a federal mandate for planes, trains and other public transportation now puts drivers in the position of deciding whether they want to pick up passengers without a mask.

The ride-sharing giants, which announced their new policies shortly after the Florida federal court order, said drivers can refuse passengers who don’t want to wear masks. They have also eliminated their no-front-seat policies.

But the situation fuels a long-running debate over the level of control these drivers, who are classed as independent contractors rather than employees, have over their working conditions.

“I can see this causing headaches for Uber and Lyft,” said Shannon Liss-Riordan, a Boston-based attorney who represents drivers challenging gig economy companies.

“Drivers won’t really feel like they can refuse rides from passengers who aren’t wearing a mask. They will all be afraid that it will affect their scores and also their passenger rating. Uber always fires drivers who don’t maintain a high enough passenger rating,” she said.

Uber and Lyft have signaled that their drivers still have options despite the end of the companies’ mask mandates.

“We have always encouraged passengers and drivers to cancel rides if they feel unsafe and canceling a ride for safety reasons does not count towards a driver’s cancellation rate” , Uber spokesman Andrew Hasbun said in a statement provided to Bloomberg Law.

In response to a request for comment, a representative for Lyft referred Bloomberg Law to the company’s earlier statement regarding the end of its mask tenure.

Gig Workers Rising, an advocacy group organizing app-based workers, said drivers were concerned about the changes.

“Uber and Lyft are playing politics with our lives. I don’t like the idea of ​​people getting in my car without a mask on,” said Rondu Gantt, San Francisco Bay Area rideshare driver and organizer. “We are in a confined space and if a rider refuses to wear a mask and we ask them to leave the car, we risk getting a bad review and possibly being disabled,” he said. said in a statement.

Existing problem

Many drivers say mask rules had already become harder to enforce as more cities and states pushed to lower Covid-19 safety requirements and more workplaces lifted mask mandates.

The new policies also come as a labor shortage and rising petrol prices have led to rising tensions and reports that drivers have stopped working for the apps. The companies said there had not been a sharp drop in the number of workers from year to year.

Jason Munderloh, an app-based driver who also works with Gig Workers Rising, thinks companies should have consulted workers on the mask update.

“This shows yet again that they have never cared about worker safety and refuse to take responsibility for drivers who bring in billions of dollars in revenue,” he said in a statement. “Workers like me will bear the brunt of all future waves of COVID, we are on the front line without a safety net. This top-down decision is an example of our taking risks as a core part of their business model. »

Driver deactivation, which prohibits drivers from accessing the platform, has been the subject of litigation and complaints by drivers against the companies. Persistent lawsuits in recent years also indicate that the business model of relying on contractors to get work done flouts wage and hour laws. Employees, unlike contractors, receive benefits such as minimum wage and overtime.

The test used by the courts to determine the appropriate classification often relies on the degree of control the company has over working conditions, something that the courts have debated for years. It’s unclear if the mask issue would tip the scales.

“When considering whether someone is an employee or a contractor, there are bigger fish to fry: ask someone to pick up a passenger without a mask,” said practice group co-chair Rich Meneghello. of the gig economy of Fisher & Phillips LLP, an employer-side law firm.

“The debate will more likely be centered on the old classics: are they bound to ride and work at certain times and in certain areas,” he said. The lack of a mask mandate “does not appear to be a tipping point from a labor law perspective.”

Drivers have options

Both ridesharing apps said the root of their business model is to provide flexible working arrangements for drivers, who can set their own schedules and have leeway to pick up passengers on their own schedule.

“Remember: Many people feel even safer wearing a mask due to personal or family health issues, so please respect their preferences. And if you ever feel uncomfortable, you can always cancel the trip,” Uber said in its announcement about lifting its mask mandate.

“While passengers and drivers can still cancel any ride they don’t want to take, health safety reasons, such as not wearing a mask, will no longer appear as cancellation options in the app. “said Lyft.

Meneghello believes companies will offer great flexibility if they receive reports that drivers have denied rides for unmasked passengers. But even then, that issue alone shouldn’t determine whether Uber and Lyft have too much control over their drivers, he said.

“If you’re a flight attendant, you can’t leave the flight because passengers don’t have masks today. An Uber driver has a little more flexibility in that regard,” he said. “The more control a company imposes, the closer it comes to an employee relationship. That’s the touchpoint of it all. It doesn’t seem like an added factor, especially in a country where there are so many uncertainty and so many differences as to why they can or cannot wear masks.

Security concerns

Safety continues to be a concern for construction workers like Uber and Lyft drivers.

At least 50 drivers have died on the job since 2017, according to a recent report by Gig Workers Rising. Due to their business model, companies avoid liability and pay workers’ compensation, which is guaranteed to employees, the organization said in the report.

Uber and Lyft argued in court against liability for the assaults and accidents.

The lifting of the mask mandate is just the latest example of Uber and Lyft exercising control over their drivers, despite classifying them as independent contractors, said Erin Hatton, an associate professor at the University at Buffalo who focuses on labour, law and social policy.

“It maintains a precarious position for drivers and intensifies it in this ongoing health crisis,” Hatton said. “They’re driving in a small space, and there’s no way to avoid exposure if someone gets into their car.”

Uber and Lyft tried to play it both ways, she added. While drivers can refuse rides or kick people out, drivers have also been disabled for canceling too many rides. Genuine independent contractors should have full control over their work and working conditions, she said.

“It means having complete autonomy over who they choose and whether they complete a job,” Hatton said. “It’s a confusing legal landscape. And this question is added to the arsenal of examples.

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