Uber's battle to defend its business model amped up this week with a report that New Jersey has declared the company's drivers are misclassified as independent contractors, and is demanding $650 million in unpaid unemployment and disability taxes.

Already fighting accusations on the legislative and litigation fronts that its drivers are misclassified as independent contractors, the New Jersey action is a harbinger of an increasing focus on Uber's practices by state and federal taxing authorities, said Shannon Liss-Riordan, the Boston lawyer who brought misclassification suits against the ride-hailing company in Massachusetts and California.

"I'm expecting we're going to see more of this," Liss-Riordan said. "State governments across the country as well as the federal government are losing out massively on tax contributions from companies like Uber. So, as I've been saying in my yearslong battle against Uber, it's not just the drivers who are being hurt. It's the government, it's the taxpayer, it's complying competitors."

"Uber has made clear it's fighting for its life. It's doing everything it can to fight off misclassification claims as long as it can. It's very adept at stretching out the proceedings," Liss-Riordan said.

The report said New Jersey had been seeking unemployment taxes from the company for at least four years.

An Uber spokeswoman, Alix Anfang, said New Jersey's demand for $650 million grossly overestimates the volume of the company's business in the state. She said the company's negotiations with  New Jersey officials about payroll taxes were at a preliminary stage in a multiyear process.

"We are challenging this preliminary but incorrect determination, because drivers are independent contractors in New Jersey and elsewhere," the Uber spokeswoman said in a statement.

Uber is already facing a class action on behalf of New Jersey drivers who claim they are wrongly classified as independent contractors. In September, the U.S. Court of Appeals for the Third Circuit threw out an arbitration clause in that case, Singh v. Uber, and reinstated a suit seeking overtime pay and declaring expenditures for tolls, gas and mobile phone expenses an unlawful constructive deduction. And in California, lawmakers recently passed a "gig worker" law requiring Uber to classify drivers as employees.

News of the Department of Labor's efforts is good for those Uber drivers who lose their jobs and want to collect unemployment, said Justin Swidler of Swartz Swidler in Cherry Hill. He represents plaintiff Jaswinder Singh and a class of Uber drivers in the New Jersey suit. Uber drivers sometimes lose their jobs for reasons that can't be considered misconduct, such as receiving low ratings from customers, Swidler said.

The Department of Labor's position in the tax dispute also lends credibility to the argument being made on behalf of class members in the Singh case, said Swidler.

"It adds further fuel to the point that the New Jersey ABC test supports the idea that these individuals are employees," said Swidler. "I don't know yet how these proceedings will play out. I don't know what facts Uber or the state will show. Certainly I would be surprised if there's no relevance between the tax case and [the drivers' class action]."

Under the ABC test, adopted by the state Supreme Court in the 2015 Hargrove v. Sleepy's ruling, a worker is presumed to be an employee unless the employer can show that, first, the employer neither exercised control over the worker nor had the ability to exercise control in terms of the completion of the work. Second, the services provided must either be outside the usual course of business or be performed outside of all the places of business of the enterprise. And third, the individual is customarily engaged in an independently established trade, occupation, profession or business.

The New Jersey tax collection effort is a sign that Uber faces a reckoning for its labor practices, said Rebecca Kolins Givan, an associate professor in the School of Management and Labor Relations at Rutgers University.

"It's a statement that these companies can't just define legal categories in whatever way is most profitable to them. It's also an important statement that wage theft is not just theft from the workers, but from the state," Givan said.

"Right now, Uber exists because enough investors think it's a good bet. Its current business model is built on a shaky foundation. It's premised on profiting from misclassification and on patient investment."

Gov. Phil Murphy's administration has declared an aggressive battle against misclassification. Murphy created a task force on employee classification in 2018 and this July his task force gave a glimpse of the approach he intends to follow. The task force report said it will employ targeted education and public outreach, closer review of state contracts and coordinated interagency enforcement.

New Jersey also seeks to address the issue through legislation. A bill to protect certain employees from being misclassified as independent contractors passed the New Jersey Senate Labor Committee on Thursday. S-4204, sponsored by Senate President Stephen Sweeney, D-Gloucester, passed by a 3-1 vote. An Assembly version of the bill is scheduled for a hearing Monday.

"This is a pro-worker bill for the new gig economy," said Sweeney, a union ironworker by trade and the son of a southern New Jersey labor leader, in a statement Thursday after the bill was voted out of committee. "It will codify into law existing regulations and close a loophole that has allowed for the misclassification and exploitation of some employees. It's all about protecting the rights of workers."

S-4204, introduced on Nov. 7, would, among setting out other requirements, mandate that workers could not be deemed exempt from employee status for performing work "outside of all the places of business of the enterprise for which the service is performed," said the release.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Go To Lexis →

Not a Lexis Subscriber?
Subscribe Now

Go To Bloomberg Law →

Not a Bloomberg Law Subscriber?
Subscribe Now

NOT FOR REPRINT

Latest
Trending

Who Got The Work

J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.

Read More

Who Got The Work

Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.

Read More

Who Got The Work

Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.

Read More

Who Got The Work

Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.

Read More

Who Got The Work

Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.

Read More

Law.com Pro