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Uber updates IC contract language; drivers’ attorney takes issue

December 14, 2015

Uber updated driver contract language Friday to require individual arbitration. The move came days after a federal judge ruled previous contract language calling for individual arbitration wording was unenforceable. The judge’s Dec. 9 ruling expanded the number of drivers who could take part in the class action case Douglas O’Connor et al v. Uber Technologies Inc. where drivers argue they are employees and not independent contractors.

Individual arbitration could prevent drivers from taking part in class actions.

The plaintiffs’ attorney argued the updated language caused confusion with 100 to 200 Uber drivers calling the attorney’s office in the days after the new language was released, according to court filings. Plaintiff’s counsel has asked the court to prohibit enforcement of the agreement and to prohibit Uber from communication with class members.

“By distributing a new arbitration agreement within days of this court’s ruling on class certification, Uber has potentially tricked thousands of class members into being required to arbitrate their claims and effectively opting out of the class action, without even realizing that they are doing so,” according to a filing by the plaintiff’s attorney. “Uber’s agreement mentions nothing about class certification and makes only passing reference to the O’Connor case, buried deep in its lengthy contract (that is once again only visible in most cases by clicking on a hyperlink on a phone).”

In a letter to plaintiffs’ counsel, Uber attorney’s argued they brought the idea of the new wording before the court in a separate case where drivers claim they were misclassified as independent contractors — in a hearing on Dec. 10. That case is Del Rio v. Uber Technologies Inc. 3:15-cv-03667-EMC.

The Uber attorney’s letter also said the company doesn’t plan to enforce the new language in the O’Connor case.

“Moreover, Uber does not intend (and has never intended) to invoke the Technology Services Agreement’s arbitration provisions vis-à-vis members of the certified O’Connor class with respect to any claims and damages that the court has already certified for class treatment, up to and including the date of certification, which preceded release of the new Technology Services Agreement,” according to a letter from Uber’s defense counsel.

The court approved an emergency motion by the plaintiffs’ attorney to take up the issue of Uber’s new contract language on Dec. 17.

Uber has also appealed the Judge’s Dec. 9 ruling.

Separately, in other Uber news, the Seattle City Council will vote tonight on a proposal to provide and recognize app-based drivers’ collective bargaining rights. Working with Teamsters Local 117 and the drivers, Seattle City Council member Mike O’Brien introduced the proposal to provide the drivers with a path to collective bargaining.

This bill would apply to all drivers who are paid to give rides to customers in Seattle, whether they drive for a Taxi company, a for-hire company, or app-based dispatch companies such as Uber and Lyft.

“There is currently no mechanism for drivers to address these issues with their employer directly,” O’Brien wrote. “Independent contractors are specifically excluded from the National Labor Relations Act. As a result, conflicts in this publicly regulated transportation market have become policy fights rather than points of negotiation, as they would be in other private sector employment.”