By David B. Torrey
WCJ Pittsburgh, PA
UBERLAND: HOW ALGORITHMS
ARE REWRITING THE RULES OF WORK
by Alex Rosenblat
University of California Press. 271 pp. 2018.
The major issue for workers’ compensation, when it comes to Uber drivers and other “ride hail” workers, is whether they are, as Uber claims, independent contractors or, instead, employees. This pivotal categorization issue has been treated by court opinions, especially those in FLSA cases, and in abundant academic writing. This writer has addressed the issue in the workers’ compensation context in a recent American Bar Association publication, The Brief.
It may be, however, that the most comprehensive analysis is found in the 2018 title, Uberland: How Algorithms are Rewriting the Rules of Work.
The author, research journalist Alex Rosenblat, does not purport to be authoring either a labor history or treatise on the independent contractor/employee distinction. Instead, she states that her book “is an exploration of how Uber and other corporate giants in Silicon Valley are redefining everything we know about work in the 21st century through subtle changes ushered in by technology.”
This characterization is, after two readings, certainly fair. On the other hand, in undertaking the exploration, the author cannot avoid the fact that Uber could seemingly not exist as a profitable enterprise unless it arranged its workers as independent contractors. It simply cannot exist apparently, if its workers are employees. This reality is reflected in every chapter of the book.
A threshold issue is whether Uber drivers are workers at all, or are, instead, mere consumers of the Uber app. While one senses that the author personally believes that drivers are workers – even employees – she admits, at the end of the book, that some ambiguity exists in this regard. This is so because of the interposition of the communications technology which also supports Uber’s business model. Perhaps, she hypothesizes, Uber is not just engaging in rhetoric in characterizing drivers as consumers. She remarks:
Uber has developed a reputation for changing course whenever the rules catch up with it. But upon closer examination, Uber does treat drivers both like consumers and like workers. By blurring these lines, Uber creates a legacy for how we all identify as workers or consumers. Uber benefits from this strategic ambiguity because it is hard to decide which rules apply to its model. If drivers are unpaid for work they perform, should they allege wage theft under labor law, or seek redress for unfair and deceptive practices under consumer protection law? Uber broke norms, not just laws, exposing the fragility of both.…
While the author admits to this ambiguity, she precedes these remarks with a minor treatise on how Uber controls its drivers’ work. And, of course, workers’ compensation analysis (in Pennsylvania, my state, and in many others) draws the distinction between employee and independent contractor precisely on this factor.
On this topic, the principal chapter is the fifth, Behind the Curtain: How Uber Manages Drivers with Algorithms. But, as foreshadowed above, the entire book addresses how Uber controls its drivers’ labor. And this is so, of course, despite the lack of an immediate flesh-and-blood supervisor. In one area of summary, she posits, “The autonomy celebrated by Uber’s model stands in stark contrast to the everyday experience of its drivers, who are carefully monitored by an algorithmic boss. Evidence of control is scattered everywhere. The company determines the types of cars that are eligible on its platform ….; sets and changes the pay rates as it wishes; controls the dispatch; targets drivers unevenly with incentives; retains the full power to suspend or fire drivers without recourse; and mediates and resolves conflicts at its discretion, ranging from issues of passenger disputes to wage theft. An algorithmic manager enacts its policies, penalizes drivers for behaving in a manner unlike what Uber ‘suggests,’ and incentivizes them to work at particular places at particular times….”
So pervasive is the theme of control that Uberland stands as the lawyers’ field manual for establishing such workers as employees – not independent contractors – under workers’ compensation laws. Of course, Uber is constantly changing its precise terms of operation. Consequently, one would need to update the Rosenblat research and, in a litigated case, determine precisely how the driver was, at the time of injury, being managed by Uber and its algorithm.
Uber, Rosenblat insists at the outset, “leverages significant control” over its drivers. Uber denies it, but the author’s mission throughout is to dispel the Uber rhetoric and strategies that seek to hide the fact of control. Toward that end, the author tries to demolish Uber’s “three myths” about how it is special and not a regulable employer of labor.
The first myth is the “myth of sharing,” that is, the utopian idea present at the outset of the Internet that ride sharing (now more commonly called ride hailing) is some sort of communalistic effort, with no one really profiting. Uber, by portraying drivers as simply sharing available, but unused resources, with others, seeks to divorce itself from the drivers who do the actual work and avoid the idea that of an employer-employee relationship.
The second myth is that of Uber’s “technological exceptionalism.” Under this concept, Uber and its app reflect some completely new model of work, possessing no precedent in history. This new model purportedly compels the conclusion that it is divorced from the traditional idea of employer-employee relations when it comes to labor regulation. Through this depiction of itself as “exceptional,” Uber seeks to avoid regulation by state and local authorities as simply inapplicable.
The third myth is that of Uber driving as “glamorized millennial labor.” Under this myth, which Uber seeks especially to exploit, millennials flock to Uber to be free of the prison of employer domination of life and its nine-to-five drudge. Instead, millennials can be free-spirited entrepreneurs, set their own hours, and be unconcerned about punching the clock.
The author deconstructs these myths as inconsistent with reality.
How so? Her critique is driven by years of intense interviews with drivers throughout the country, and world, and a study of how the app actually influences, and manipulates, its worker-users. A summary of her consequent findings is set forth above, but she details those observations throughout the book.
One such detail: one of Rosenblat’s sharpest critiques is that most Uber drivers are entrepreneurs. The idea, to her, is laughable: “Drivers’ experiences demonstrate the gap between rhetoric and reality when Uber talks about being a beacon of entrepreneurial opportunity. The image of driver-as-entrepreneur fails for three main reasons: drivers have no control over the rate at which they work; they do not determine which jobs they take while logged in; and they are routinely punished for any attempt to ‘disrupt’ the system that Uber imposes.” The idea that drivers have the entrepreneurs “autonomy,” she argues, is an illusion.
Rosenblat emphasizes how Uber tracks driver behavior through its well-known, and all-important, rating systems, whereby passengers assess driver performance, and then communicate that data to both Uber and the driver. For the uninitiated, she explains:
After each trip, passengers are prompted by the Uber Passenger app to rate drivers on a scale of 1 to 5 stars on their mobile app. A driver’s rating is the average of ratings from his or her last 500 trips. ….
[H]istorically, drivers risk being deactivated if their ratings fell below a certain threshold …; if their ride-acceptance fell below 80-90 percent; or if their cancellation rate climbed above 5 percent. …
This process, in turn, controls whether Uber will permit the driver to continue using the app. This reality shows that Uber in effect possesses the right to fire its driver.
The author, indeed, titles a subsection, “[Drivers:] Controlled Through the Rating System.” She remarks, “the rating system at Uber effectively makes management omnipresent, because it subtly shifts how drivers behave on the job.”
Although Uber, as of 2016, merely suspends drivers for unsatisfactory performance ratings, the author asserts: “Despite the claim that Uber drivers are independent contractors and entrepreneurs, they must deliver a standardized experience to passengers or risk suspension, deactivation, or loss of pay. …The rating system functions as both carrot and stick, a mediating force to insure the drivers fulfill the expectations that Uber scaffolds for the passengers who evaluate them.”
Rosenblat also discusses the process of “telematics” – that is, how drivers brake, accelerate, and speed as they undertake their work – and how Uber monitors and collects individuals’ personal data.
Rosenblat also explains the “dispatching function” that Uber undertakes “as a tool to control its drivers.” She explains, “drivers may apply to drive for Uber with the intention of working for a particular service tier (because each tier, such as Uber X or Uber SUV, requires a specific make and model of car), but Uber often pushes drivers to accept dispatches for lower tiers. An Uber Black driver may be dispatched to pick up an Uber X customer, who pays the lower Uber X rates, even though the driver continues to absorb the cost of operating a higher-end, gas-guzzling vehicle….”
An outstanding feature of Uberland is the author’s exploration of all aspects of Uber as a new form of employment or consumerist relation. As noted above, she grapples with the conceptual issue of whether an Uber driver is really just a consumer of the Uber app product, as opposed to undertaking work as traditionally conceived.
This inquiry is a crucial aspect of the book. Yet, to this reader, this conceptual query seems superfluous. This is so when two aspects of the Uber experience are appreciated.
First, Uber has acknowledged that one of its biggest competitors for labor is none other than McDonald’s. This fact strongly suggests (or proves) that driving for Uber is simply just another entry-level job which requires only minimal skill (granted, the worker will need a car).
Second, a major anxiety for many full-time Uber drivers, pressed as they are by Uber never to get off the app, is finding a convenient time and place to take a bathroom break. This fact points up that, for all Uber’s technology and mystique, in the end it can only operate and receive its riches via an army of entry-level workers desperate to find the nearest porta-potty.
Is the conceptual issue really so complex?
Uberland is attractive to the lawyer reader because of its sophistication with regard to the critical legal issues that we consider. Rosenblat references the O’Connor decision, decided under the FLSA in California, and agrees with the federal district court judge that Uber’s model suggests not independent contractorship but employment.She also references the Pennsylvania Lowman unemployment compensation case (in its earliest stages) now recently decided by the Supreme Court. There, the court held that a worker laid off from a job, thereupon seeking work via the Uber app, is not “self-employed,” and hence is potentially entitled to partial unemployment compensation benefits.
Many books on Uber and employment law exist. Still, Uberland, as a field manual, is the best to get the lawyer into the muddy trenches of the pertinent workplace and legal analyses.
David B. Torrey, Workers’ Compensation and Laboring in the Gig, THE BRIEF, p.12 (ABA TTIPS Section 2020), https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2019-20/spring/.
This assertion was put to rest in JEREMIAS PRASSL, HUMANS AS A SERVICE: THE PROMISE AND PERILS OF WORK IN THE GIG ECONOMY (Oxford Univ. Press 2018) (asserting that commercial labor intermediaries have existed since the 19th century) (reviewed in this newsletter, No. 135 (August 2018)).
O’Connor v. Uber Technologies, Inc., 82 F.Supp.3d 1133 (N.D. Cal. 2015).
Lowman v. UCBR, 2020 WL 4250088 (Pa., filed July 24, 2020), affirming 178 A.3d 896 (Pa. Commw.2018),